There’s been a lot of talk in Canberra this week about governments fulfilling commitments, about delivering on promises, about what constitutes a promise. Down the hill from the rancour of the new federal parliament, barristers of the Commonwealth and the Australian Capital Territory have been arguing in the High Court over the finer points of the Australian Constitution as it applies to marriage – a more civilised debate, no doubt, but one with far-reaching consequences for our country.
As the first jurisdiction in Australian history to legislate for marriage equality, the ACT Government delivered on a clear and public promise we made during the election in October 2012. We acted on a belief held deeply by people throughout Canberra and in communities across Australia – that everyone deserves equality before the law. In a modern, secular and mature society, where in most respects we have removed discrimination on the grounds of gender and sexuality, the exclusion of some to the institution of marriage remains a mark against our national record.
While we’re proud of our action and are willing to push the boundaries of the legal system, the ACT has not set the public mood on marriage equality. In fact, my own view is that the Australian people have moved faster than our political institutions have been able to respond. Most Australians – almost 70 per cent in 2010 – celebrate their marriages in a civil ceremony and as a civil institution. For them, the value of marriage lies in its standing in Australian law and society. This is the basis on which public support for marriage equality rests. It is not a challenge to religion or tradition or the value of heterosexual marriage. It is simply a belief – increasingly a demand – that all couples deserve the right to access this institution.
The ACT Government has always said we would prefer that the Commonwealth legislate for marriage equality and it would give me great pleasure to repeal the ACT law on the grounds that federal marriage reform made it no longer necessary. We delayed the introduction of our legislation to see if the federal parliament would deliver and we acted when it wasn’t able to do so.
We were extremely disappointed when informed by the Commonwealth that the ACT’s law would be challenged in the High Court. Not only did this signal that the federal government would continue with a policy of opposition to same sex marriage, but also that instead of arguing this position through public and parliamentary debates, its views would be put into effect through the technicalities of a constitutional challenge. I said at the time of debating the Marriage Equality (Same Sex) Bill that the High Court was not the place to contest this basic matter of principle and that remains my view.
Two weeks before the ACT’s law was passed, the federal government asked us not to enact it and in recent days, some have suggested it is irresponsible that we allow couples to marry while the High Court is deliberating. This is an argument I simply don’t accept – not from the people who have brought the uncertainty to bear. This view also misreads the conviction of those who have fought long and hard for marriage equality. No important social reform comes without some risk for those who deliver it and those who put themselves forward to live it. Some 47 couples are registered to be married in this ACT this weekend – each one aware of the ongoing legal contest over the law they will use and none of them deterred by it.
If anything, the uncertainty over the legal status of same sex marriage has galvanised our community in its support for the principle. Venues, caterers and service providers across Canberra have been working overtime to support the couples marrying this weekend and there is an enormous amount of goodwill surrounding them.
If the High Court rules that state and territory governments have no right to make laws for same sex marriage, the need for national reform will simply increase. The fact that five other jurisdictions are at various stages of engaging with marriage equality through their parliaments gives a good indication of this.
Of course, if the court rules in favour of our law, life will go on as normal for the great majority in our community. But for same sex couples, together with their families, friends and supporters, the recognition of their equality before the law will be profound. The reconciliation of Australia’s Constitution with the principles of fairness and equality, as they are held in our society today, will be a point in our history to celebrate.