EXPLANATORY STATEMENT
Issued by the Authority of the Attorney-General,
for the Minister for Local Government, Territories and Roads
Australian Capital Territory (Self-Government) Act 1988
Instrument of Disallowance
Subsection 35(2) of the Australian Capital Territory (Self-Government) Act 1988 (the ACT Self-Government Act) provides that the Governor-General may, by written instrument, disallow an enactment made by the Legislative Assembly for the Australian Capital Territory (the ACT Assembly) within 6 months after it is made. An enactment is made when it is notified in the Australian Capital Territory Legislation Register.
The ACT Assembly passed the Civil Unions Act 2006 (ACT) on 11 May 2006. It was notified in the Australian Capital Territory Legislation Register on 19 May 2006. The Civil Unions Act 2006 (ACT) would have enabled two people, whether of the same or opposite sexes, to enter into a civil union.
The disallowance of the Civil Unions Act 2006 (ACT) supports the fundamental institution of marriage. The Marriage Act 1961 (Cth) makes it clear that marriage is the union of a man and a woman to the exclusion of all others voluntarily entered into for life. This is the definition of marriage inserted into the Marriage Act 1961 (Cth) by the Parliament in the Marriage Amendment Act 2004 (Cth). The unique status of marriage is undermined by any measures that elevate other relationships to the same or similar level of public recognition and legal status.
The Civil Unions Act 2006 (ACT) created a statutory scheme for the recognition of relationships which bore a marked similarity to the Commonwealth’s scheme for the regulation of marriage. This legislation appeared to undermine marriage, attempted to circumvent the Marriage Act 1961 (Cth), and may have created ambiguity between civil unions and marriages.
The ACT Assembly made an Address to the Governor-General on 8 June 2006. Notwithstanding statements made in that Address, the power of the Governor-General to disallow an enactment under section 35 of the Act is at large and is not constrained by the policy considerations set out in that Address. The ACT Self-Government Act specifies no conditions that need to be satisfied before the power to disallow an enactment may be exercised.
The disallowance instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003. The instrument commenced on the day after it was registered on the Federal Register of Legislative Instruments. The instrument has the same effect as a repeal of the Civil Unions Act 2006 (ACT).
Overview
The Australian Capital Territory (Self-Government) Act 1988, enacted by the Parliament of Australia, provides the legislative framework for the self-governance of the Australian Capital Territory. This Act aims to address the need for a balanced autonomy for the ACT while maintaining federal oversight. The introduction of the Act was critical to establish a system where the ACT could manage its local affairs, subject to certain conditions and the ultimate authority of the Commonwealth. The Act was designed to ensure that while the ACT Assembly could pass legislation, the federal government retained the power to review and disallow any legislation that conflicted with federal law or policy.
In 2006, the ACT Assembly passed the Civil Unions Act 2006 (ACT), which sought to legalise civil unions for couples, regardless of their sex. However, this Act was met with opposition due to its potential to undermine the institution of marriage as defined by the Commonwealth under the Marriage Act 1961 (Cth). The Commonwealth government, exercising its powers under the Australian Capital Territory (Self-Government) Act 1988, issued an instrument of disallowance to nullify the Civil Unions Act 2006 (ACT), thereby reinforcing the federal definition of marriage and preventing the creation of a parallel legal status that could conflict with or dilute the significance of marriage.
Scope and Application
The Australian Capital Territory (Self-Government) Act 1988 allows the Governor-General to disallow enactments made by the Legislative Assembly within six months of their notification in the Australian Capital Territory Legislation Register. This authority was exercised in relation to the Civil Unions Act 2006 (ACT), which was disallowed to uphold the definition of marriage as the union of a man and a woman, as outlined in the Marriage Act 1961 (Cth). The disallowance instrument effectively nullifies the Civil Unions Act 2006 (ACT), which sought to establish a civil union framework similar to marriage, thereby maintaining the distinctiveness of the institution of marriage. The disallowance is a legislative instrument under the Legislative Instruments Act 2003 and took effect upon registration on the Federal Register of Legislative Instruments.
Key Provisions
The main operative sections of the Australian Capital Territory (Self-Government) Act 1988, specifically referenced in this context, include section 35(2), which provides the legal basis for the Governor-General to disallow an enactment by the Legislative Assembly within six months of its notification in the Australian Capital Territory Legislation Register. This power was exercised in response to the Civil Unions Act 2006 (ACT), which was passed by the ACT Assembly on 11 May 2006 and notified on 19 May 2006. The Act aimed to allow individuals, regardless of sex, to enter into civil unions. However, the Governor-General exercised the power to disallow this enactment on the basis of preserving the fundamental institution of marriage as defined in the Marriage Act 1961 (Cth).
The Act imposes certain obligations and requirements on the parties involved. Primarily, it mandates that any enactment made by the Legislative Assembly must be notified in the Australian Capital Territory Legislation Register, and it allows the Governor-General to disallow such enactments within the stipulated timeframe. Additionally, the Act does not specify any conditions or constraints on the Governor-General’s power to disallow an enactment, making it a broad authority. Furthermore, the disallowance instrument itself is treated as a legislative instrument under the Legislative Instruments Act 2003, with the effect of repealing the disallowed Act upon its registration.
In terms of consequences, the disallowance of the Civil Unions Act 2006 (ACT) nullifies the Act as if it had never been enacted. This effectively removes the legal framework for civil unions within the Australian Capital Territory, ensuring that the definition and institution of marriage, as per the Marriage Act 1961 (Cth), remain uncompromised. There are no direct penalties or fines stipulated for the disallowance process itself; however, any subsequent attempts to circumvent this disallowance or to create similar legislation could potentially face legal challenges under existing federal and territory laws.