The Civil Partnerships Bill 2006 was introduced into the Assembly on 12 December 2006. It was the second attempt by the ACT to deliver functional legal equality under ACT law to the Territory’s same-sex couples and to eradicate institutional discrimination against gay, lesbian and transgender people in the Territory. The first attempt — the Civil Unions Act 2006 — was on the books for just a matter of days before it was scuttled by the Governor-General at the behest of the Federal Government in June 2006, on the alleged grounds that it was in conflict with the Commonwealth’s Marriage Act 1961.

The ramifications of these interventions should be a matter of concern to anyone with an interest in the history of Australian law-making. The States and Territories are empowered to legislate for civil unions. The Civil Unions Act and the Civil Partnerships Bill 2006 were the result of a legitimate exercise of that power. The ACT Government campaigned on the issue and had a mandate from the community to legislate. Extensive community consultation was undertaken before the form of the legislation was determined.

By established convention, the Crown does not intervene in the legislative activities of the States and Territories except in the most extreme circumstances. This may be where a law is defective, or where a law is beyond the power of the parliament. The ACT’s Civil Unions Act and the Civil Partnerships Bill 2006 were neither.

If the Howard Government truly believed that the ACT’s efforts to deliver legal equality to same-sex couples were inconsistent with the Commonwealth Marriage Act 1961, it had a number of avenues open to it.

It could have challenged the laws in the courts. It chose not to. It could have taken the approach it took a decade earlier on the issue of euthanasia and simply removed the Territories’ power to legislate in this area.

The Federal Government chose not pursue this option either. Could it be that it feared exposing the issue to open debate in the Parliament?

The quickest and least democratic option was to act by executive fiat. That was the option chosen to scuttle the Civil Unions Act 2006. It seems to have been the preferred option again this time around.

The ACT Government went to extraordinary lengths to preserve the original Civil Unions Act, making dozens of amendments in an attempt to allay the vaguely worded, shifting and unsubstantiated concerns the Federal Government expressed in the lead-up to its passage. The ACT even petitioned the Governor-General, to advise how the law could be remedied and rescued, once it became clear that the Government intended to use the Governor-General to do its dirty work.

Disappointingly, less than two hours after that petition was made, the Governor-General formally disallowed the ACT Civil Unions Act.

The Civil Partnerships Bill now before the Assembly is a genuine attempt to respond to the Federal Government’s stated concerns with the earlier law, while still delivering on the ACT Government’s pledge to the community to offer formal recognition to same-sex couples and accord them functional equality under ACT law.

At the time of writing, the Federal Attorney-General is persisting with his claim that the new Bill is likely to “undermine the institution of marriage”. Before the elected representatives of ACT voters have even had a chance to debate the Bill, he has announced that the Commonwealth will again impose on the Governor General to scuttle the law, yet again avoiding argument and debate, in contempt of basic notions of democracy and representative government.

The ACT Government will allow the Bill to lie on the table, undebated, while it contemplates its options. The civil unions and civil partnerships legislation personally and directly affect only a minority of Australians. Perhaps that is why discussion of the flow-on effects of the Commonwealth’s actions has been mainly confined to scholars. But a precedent has been set here, a dangerous one.

How strange and how sad that in Canberra, Australia, in 2006, a form of executive intervention that was historically intended to prevent oppression or neglect by government has itself been used as a tool of oppression.