THE Feds are at it again – another unprincipled, ill-thought-out interference with the affairs of the people of the ACT.
Federal Attorney-General Robert McClelland said this week that he would use the Commonwealth’s powers under the Commonwealth Australian Capital Territory (Self-Government) Act to invalidate the amendments proposed by the Greens to the ACT Civil Partnerships Act.
Those amendments are a copy of the original Bill passed by ACT Labor to permit marriage ceremonies by same-sex couples.
Whatever difficulty it might put ACT Labor in, there is a wider issue. It is a question of democracy.
The people of the ACT are as capable as any other Australians of making decisions about voting for representatives according to their stand on various issues. The ACT’s economy is bigger than that of Tasmania and many other democratic states.
Good democracies ensure people get a reasonable say on issues that affect them. It often means different levels of government to ensure that government is not too remote geographically and that the voters’ say can be reasonably translated into policy.
This is why most geographically large democracies are federations: the US, Canada, India, Brazil, Australia and Russia are good examples. They have three levels of government.
Smaller countries can get away with two: Britain, New Zealand and so on.
Indeed, because the ACT is relatively small and homogeneous, we can do without local government. Local-government issues can be dealt with by our state-level Parliament. Voters can get to it by bus or car easily.
The Constitution of the Australian federation divides powers between the national and state levels. The line between them may be grey, but ultimately the High Court will determine which side of the line a particular law will fall.
The critical thing is that the people’s representatives at state level can make laws affecting that state’s citizens provided the laws do not encroach on ground legitimately taken by the Commonwealth.
Sure, the ACT can never be a state. As part of this federal compact it contains the seat of the national government and the national government will always have an interest here on behalf of the people of the whole of Australia. But that interest should be restricted to things which genuinely affect the running of Canberra as a national capital, and not things which would ordinarily be within the ambit of the states.
It should not be for the Federal Government to veto or otherwise interfere in the law-making and policy-making of the ACT Government on the whim of some federal ministers who are not elected by the people of the ACT just because they have a different policy idea.
The test is fairly simple. If the Federal Government does not like a law or policy of the ACT (or any other state or territory for that matter) its proper course of action is to enact a national law covering the matter. If it transpires that the Commonwealth does not have the constitutional power to do that, well, the state or ACT law should be allowed to stand.
This is the principled position. Indeed, it is the one held by ACT Senator Gary Humphries who crossed the floor to uphold it in the Howard years.
So if the Feds do not like same-sex marriages or same-sex marriage ceremonies or euthanasia or banning battery hens or whatever, they should enact national laws against them – not treat the people of Canberra with contempt by overturning the actions of our state-level parliament in isolation by using the territories power.
As it happens, it is well within Commonwealth power to prohibit throughout Australia people who are licensed under the Commonwealth Marriages Act to conduct same-sex marriage ceremonies. Just as the Commonwealth could license corporations to run battery hens throughout Australia irrespective of state legislation banning them.
Could the Commonwealth overturn any state law permitting same-sex ceremonies (conducted by state-appointed celebrants)? Good question. Certainly it could deny the couple any Commonwealth benefits and detriments of marriage, but maybe not any state recognition, benefits and detriments.
For a start, the provisions of the Marriage Act enacted in the time of the Howard Government that define “marriage” as the union of a man and a woman are almost certainly constitutional invalid.
Those provisions fail a fundamental constitutional principle. Now this next bit is difficult so concentrate.
The Constitution gives the Commonwealth power to make laws “with respect to . . . marriage”. The words “with respect to” are critical. They do not embrace a power to define “marriage” that is for the High Court and other federal courts which have the exclusive power to interpret the words of the Constitution. The court may or may not define marriage as a union of a man and woman and not two people of the same sex.
To take a hypothetical extreme to prove a point, if the marriage power enabled the Commonwealth to define “marriage”, the Commonwealth could define it as any relationship between a human and, say, a dog and then proceed to regulate dog ownership, which would have otherwise been a matter for the states.
Similarly if the power to make laws with respect to “currency” allowed the Commonwealth to define “currency” it could say currency is real property and then regulate real property, again, a matter that would otherwise be for the states.
And so it goes on. Define something however you like so you can make whatever law you want. So now you see why the Howard man-woman definition is a constitutional dud.
It is perhaps this very point which makes the Commonwealth so wary of attempting a national ban on same-sex ceremonies.
It is a real conundrum for the Commonwealth. If it wants to use the marriage power to ban same-sex ceremonies throughout Australia then it has to argue that same-sex unions are in fact marriages so that they come within the ambit of the marriage power.
On the other hand, if same-sex unions are not marriages, within the meaning of the Constitution, then the Commonwealth has no power to ban their solemnisation in the six states.
You can see why the Feds do not want to go there. How much easier for them to prove their hetero, macho credentials by picking on the defenceless ACT which does not have any constitutional position from which to argue. And cannot vote out the people who make that decision. Yet we would be perfectly capable of voting out a government that instituted same-sex marriage celebrations if that was our wont.
And that is precisely the point of democratic principle that Robert McCelland and Prime Minister Kevin Rudd are ignoring – just to make a cheap point among the wider red-neck Australian electorate knowing that offended gays won’t jump the fence into the Coalition camp, so to speak.