Gay marriage in NSW/Australia (1 Viewer)

[robo-andie]

"The marriage power is clearly vested in the commonwealth and to do so by not only reference to it having all the like characteristics of a marriage in terms of the ACT law, providing as it did for civil celebrants for a ceremony and adopting other characteristics of marriage, was quite provocative," Mr Ruddock said.

Can someone please explain this for me. I don't fully understand what he is saying.
I think it is something along the lines of "The civil union was very similar to a marriage in terms of law and they found it hard to differentiate between the two."

 

[MissSavage29]

Can someone please explain this for me. I don't fully understand what he is saying.
I think it is something along the lines of "The civil union was very similar to a marriage in terms of law and they found it hard to differentiate between the two."

Basically - in determining what a civil union is under the ACT law - they are saying that the Civil union had all the features of a marriage in the legislation created by the ACT.

Therefore, because the cth has the power to legislate for marriage ( s51xxi - i think) the law was invalid as being unconsitutional

 

[robo-andie]

Thanks. Makes sense now.

 

[Xayma]

Basically - in determining what a civil union is under the ACT law - they are saying that the Civil union had all the features of a marriage in the legislation created by the ACT.

Therefore, because the cth has the power to legislate for marriage ( s51xxi - i think) the law was invalid as being unconsitutional

Incorrect.

The law was specifically made so it didn't do that. Any challenge would then bring it down. The government used their power over territories to do it whereby they can override a territory law.

 

[MissSavage29]

Incorrect.

The law was specifically made so it didn't do that. Any challenge would then bring it down. The government used their power over territories to do it whereby they can override a territory law.

ah no i realise that was how they invalidated it - but we were refereing to the comments ruddock made in the Australian

robo-andie
Originally Posted by The Australian
"The marriage power is clearly vested in the commonwealth and to do so by not only reference to it having all the like characteristics of a marriage in terms of the ACT law, providing as it did for civil celebrants for a ceremony and adopting other characteristics of marriage, was quite provocative," Mr Ruddock said.

 

[poloktim]

ah no i realise that was how they invalidated it - but we were refereing to the comments ruddock made in the Australian

Not quite true. A state can introduce legislation like that of the ACT's and not be challenged under the constitution. Xayma was saying that legally, the law would stand to be seperate from that of marriage, therefore within the jurisdiction of the law of the ACT. It was carefully crafted, after all. The Federal Government removed it because they said it was too much like marriage. Not being marriage, however, it is within the jursidiction of state and territory governments. Ruddock simply decided the government didn't like that law and used his legal power to compell the GG to remove the legislation.

Oh, that being said, Senator Bob Brown said that Kerry Nettle will introduce a bill to overturn Ruddock's actions. I doubt it'll work, however.

 

[xeuyrawp]

One could argue that the population of the ACT voted for the Labor government in their Legislative Assembly knowing that they would enact this law. Perhaps appealing this matter to the GG could prove to be troublesome to the Government. However I sincerely doubt it. The GG generally takes advice from the PM, and if the PM advises him to repeal the ACT's laws based on the ACT Self Government Act, then as far as I know, his hands are tied. So ultimately, I think you're right, the GG will act in the interests of Australia, which is believed to be the views of the government that was voted in by Australians, regardless of how residents of the ACT or Jervis Bay feel. Unfortunate as it is, I doubt there's room for Stanhope's government to fight.

Perhaps the ACT should attempt to achieve statehood. The wording of the constitution is confusing to say the least, so I'll paste the clause I think would benefit and let people interpret it for themselves.

(link)

Thanks for that, that's really interesting.

I wonder how it'll turn out - or should I be cynical and question how the ACT could challenge the federal power?

 

[MoonlightSonata]

Can someone please explain this for me. I don't fully understand what he is saying.
I think it is something along the lines of "The civil union was very similar to a marriage in terms of law and they found it hard to differentiate between the two."

While Ruddock's legal basis for removing the law had nothing to do with the constitution, he's just giving a justification for exercising his powers. He's basically saying "Yeah well, it's probably unconstitutional anyway." (Debatable)

Obviously he doesn't have to go through the process of challenging the ACT act in the High Court when he can just swat it away easily with the ACT Self-Government Act.

 

[robo-andie]

While Ruddock's legal basis for removing the law had nothing to do with the constitution, he's just giving a justification for exercising his powers. He's basically saying "Yeah well, it's probably unconstitutional anyway." (Debatable)

Obviously he doesn't have to go through the process of challenging the ACT act in the High Court when he can just swat it away easily with the ACT Self-Government Act.

So he is basically using his powers to remove something he doesn't agree with? Rather than having the issue debated and discussed?

 

[MoonlightSonata]

So he is basically using his powers to remove something he doesn't agree with? Rather than having the issue debated and discussed?

One can only speculate as to the government's true motives, but personally I think that the ACT laws were inconsistent with the existing Federal marriage laws (however morally reprehensible those laws are).

 

[poloktim]

One can only speculate as to the government's true motives, but personally I think that the ACT laws were inconsistent with the existing Federal marriage laws (however morally reprehensible those laws are).

It would be interesting to see how the Federal Government would handle a case like that if a state implemented those laws.

http://www.news.com.au/story/0,10117,19456475-421,00.html Labor has taken up the fight. With a Coalition Senate, I doubt they'll win.

 

[MoonlightSonata]

"Federal Labor does not support Federal Government interference in a matter which is properly for the states and territories," Opposition Leader Kim Beazley said.

Beazley is wrong. It is not a matter "properly for the states and territories". Section 51(xxi) of the Constitution is quite clear:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to ...

(xxi) marriage ...

It is a matter within the power of the Commonwealth.

 

[TerrbleSpellor]

But it's not marriages that the ACT was changing, it was 'civil unions'.

If the ACT can be ambiguous like it has been in enacting the law, so to can phillip ruddock in his plans to sway the governor to strike down the laws.

So he is basically using his powers to remove something he doesn't agree with? Rather than having the issue debated and discussed?

* Something that the federal government doesn't agree with. He had an executive meeting with the governor general and they agreed that from 12:00 last night, the law would be invalid.

As I just said, if the ACT government can say "no, we aren't going to allow them to *marry*, we are just letting them engage in civil unions... which have the same rights as marriage" (marriage by another name), then the federal government can be equally deceptive in striking the laws down in the name of interfering too much with the federal gov's marriage powers (when really they just dont want gays marrying )

 

[poloktim]

Beazley is wrong. It is not a matter "properly for the states and territories". Section 51(xxi) of the Constitution is quite clear:It is a matter within the power of the Commonwealth.

Funny enough, I don't think the government has once mentioned Section 51(xxi). Or that the law is unconstitutional. All they said was it's too similar to marriage, and marriage is sacred between man and woman. The ACT government never called it marriage, and they would've drafted the law pretty well so it could stand a high court challenge. The only reason that seems to come from the government is "Marriage is for those who are heterosexual alone. Because of this, we'll use our powers under the ACT Self Government Act to stop the ACT."

That being said, Bob Brown did an interview on Sky News which he stated another possible reason why Federal Labor is challenging the ban. Parliament runs the country under the leadership of the Government. The Government should not act as if Parliament is unnecessary.

I have to sympathise and agree with him. We don't directly vote in an executive, we vote in a parliament. Therefore I'd like to believe that democracy is carried out by allowing things to go through the Parliament.

 

[townie]

it would be interesting if a state introduced similar laws, purley because, when I was young and passionate, i remember writing to several MP's arguing for gay marriage, and i specifically remember quite a few of them saying you chouldnt do it because of a high court case a while back about the meaning of marriage in the constitution and that it only applied to men and women. ( Hyde v. Hyde and Woodmansee)

then couldnt a state (not territory) argue: well, since the constitution only covers men and women together, we can cover the rest

found interesting article http://www.aph.gov.au/library/pubs/rn/2001-02/02rn17.htm

 

[MoonlightSonata]

Funny enough, I don't think the government has once mentioned Section 51(xxi). Or that the law is unconstitutional. All they said was it's too similar to marriage, and marriage is sacred between man and woman.

Well Ruddock did say so, just not explicitely:

"The marriage power is clearly vested in the commonwealth [ie. under Constitution s 51(xxi)] and to do so by not only reference to it having all the like characteristics of a marriage in terms of the ACT law, providing as it did for civil celebrants for a ceremony and adopting other characteristics of marriage, was quite provocative," Mr Ruddock said.

The ACT government never called it marriage, and they would've drafted the law pretty well so it could stand a high court challenge. The only reason that seems to come from the government is "Marriage is for those who are heterosexual alone. Because of this, we'll use our powers under the ACT Self Government Act to stop the ACT."

It doesn't matter what they called it. They can call it a "spiritual bond of magical divinity" for all it matters -- the court looks to the substance of what the section actually does. It is debatable, but the odds are clearly with the government in my mind.

That being said, Bob Brown did an interview on Sky News which he stated another possible reason why Federal Labor is challenging the ban. Parliament runs the country under the leadership of the Government. The Government should not act as if Parliament is unnecessary.

Very true.

I have to sympathise and agree with him. We don't directly vote in an executive, we vote in a parliament. Therefore I'd like to believe that democracy is carried out by allowing things to go through the Parliament.

Something that has unfortunately fallen into disrepair with this government.

 

[kami]

This is just a thought, but considering the amended marriage act defines marriage completely as between a man and a woman, and considering that it is marriage that falls into the hands of the commonwealth. Doesn't that then remove any reason for commonwealth jurisdiction over unions not between a man and a woman? Especially if it is not called marriage?

EDIT: As in have they limited their right to interfere by defining marriage in that form?

 

[MoonlightSonata]

This is just a thought, but considering the amended marriage act defines marriage completely as between a man and a woman, and considering that it is marriage that falls into the hands of the commonwealth. Doesn't that then remove any reason for commonwealth jurisdiction over unions not between a man and a woman? Especially if it is not called marriage?

EDIT: As in have they limited their right to interfere by defining marriage in that form?

But power to legislate with respect to marriage also means power to exclude certain people from marriage. The Commonwealth's definition of marriage is merely part of the regulation of marriage. Hence, if a state law purported to make legal what is in effect a marriage, but it includes excluded participants under Commonwealth legislation (ie. same-sex couples), it would be in conflict with federal law.

For example, if the Commonwealth has the power to make laws with regard to what fruit farmers can grow, and it passes a law defining "acceptable fruit" as apples, then a state law saying that oranges are acceptable would be in conflict.

Of course, the problem is that arguments over the term "marriage" in the constitution have a circular nature to them. If you think that the term "marriage" in the constitution is to be read as "the Commonwealth has power to make laws with respect to the joining of a man and woman" then states can make laws in respect of the joining of a "man and man" or "woman and woman". But that seems to me to be a rather illogical and unnatural interpretation of the constitution, from either a contemporary or even an originalist (looking at the constitution through the writers' eyes) reading. Personally it seems logical to me to interpret it as "the Commonwealth has the power to legislate with respect to the joining of two individuals".

 

[Captain Obvious 1]

That being said, Bob Brown did an interview on Sky News which he stated another possible reason why Federal Labor is challenging the ban. Parliament runs the country under the leadership of the Government. The Government should not act as if Parliament is unnecessary.

What?

 

[poloktim]

What?

He's complaining that Ruddock went to ban the legislation without the approval of the Federal Parliament. Although at the moment with a government majority in both houses it might seem a mere formality, the government is still responsible to Parliament, therefore need to seek the approval of parliament.

He's hoping tomorrow's disallowance motion can pass through the senate. Highly doubtful, but still, something different to watch than the normal political headlines.