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Explainer: can the Commonwealth override the ACT on marriage equality?

The ACT’s Marriage Equality Bill, which is expected to pass parliament later this month, has revived the controversy about who can legislate for same-sex marriage, with the Commonwealth proposing to challenge…

It all comes down to matters of interpretation, and the interpretation that counts is that of the High Court. Image from shutterstock.com

The ACT’s Marriage Equality Bill, which is expected to pass parliament later this month, has revived the controversy about who can legislate for same-sex marriage, with the Commonwealth proposing to challenge the territory’s law.

Despite some bravura statements on both sides, most recognise that the issues are not cut and dried. It all comes down to matters of interpretation, and the interpretation that counts is that of the High Court – not the politicians or lobbyists.

What does the Constitution say?

The Constitution lists specific powers which the Commonwealth Parliament may exercise. They include the power to make laws with respect to “marriage” and “divorce and matrimonial causes”.

But these are not exclusive powers. The states can legislate on these subjects too. Unlike the Commonwealth, the states have full power to legislate on any subject except for a few small areas.

However, if the state law is inconsistent with the Commonwealth law, then the Commonwealth law prevails and the state law becomes inoperative to the extent of the inconsistency.

At the time of federation, each of the colonies had a law governing marriage, and these laws continued in place as state laws until the Commonwealth Parliament enacted the Marriage Act 1961, which provided a single national law in relation to marriage. All the state marriage laws were overridden and eventually repealed.

So it is not accurate to claim that marriage is a Commonwealth matter and the states can’t legislate on the subject. The states have the power to legislate about marriage, but if that law is inconsistent with the Commonwealth law, then the state law will be inoperative.

The meaning of ‘marriage’

The Constitution permits the Commonwealth to legislate with respect to “marriage”, but what does “marriage” mean? Should a court apply its original 1901 meaning, most likely being “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”? Or should it apply a contemporary meaning – and if so, how is it to be determined?

Given the high level of controversy concerning same-sex marriage, it would be difficult to claim that the term “marriage” has a settled contemporary meaning. Should the High Court take into account opinion polls, contemporary literature, dictionary meanings or the view of the parliament?

Should it consider overseas practice, international treaties or the views of religious or ethnic groups? Or should it say that the Constitution means what it meant when it was came in to force in 1901 and that it is up to the Australian people to change its meaning through a referendum if they wish to do so?

Should the High Court consider same-sex marriage laws abroad? San Diego Shooter

In practice, the High Court has taken different approaches to constitutional interpretation. Sometimes it has applied the original meaning of a term and other times it has applied a “dynamic” approach or recognised a contemporary meaning or changed factual circumstances. One cannot know how the High Court will deal with the meaning of marriage until it actually does so.

If the High Court applied the original meaning of marriage, then the Commonwealth would be unable to rely on the marriage power to legislate for same-sex marriage, leaving this field for the states.

This would put an end to notions of marriage equality, because same-sex relationships would necessarily have to be distinguished from “marriage” in its constitutional sense. It would also raise doubts about whether such relationships could be classified as “marriage” at all.

Inconsistency between laws

If, on the other hand, the High Court interpreted “marriage” in the Constitution as including same-sex relationships, then the question would be whether the Commonwealth’s Marriage Act, even though it defines marriage as a union between a man and a woman, was intended to cover the field of all types of marriage in Australia and to exclude the solemnisation of same-sex marriages under state laws.

There are some indicators in the Act that this is the intent. Section 48, for example, states that marriages solemnised in Australia otherwise than as prescribed by the Act are not valid. Section 88EA also says that a union solemnised in a foreign country between a man and another man or a woman and another woman must not be recognised as a marriage in Australia.

These provisions suggest that the Commonwealth Parliament, when it changed the definition of “marriage” to mean a union between a man and a woman, did not intend to leave it to the states to legislate for same-sex marriage.

Nonetheless, it is still possible that the High Court might regard same-sex marriage as a separate field in which the states can legislate without inconsistency with the Commonwealth’s law.

If so, the state would have to be very careful to stay within the boundaries of this field, establishing its own institution of same-sex marriage and not purporting to give such relationships the same status as marriage under the Commonwealth legislation.

Hence, the Tasmanian bill referred throughout to “same-sex marriage” rather than marriage and avoided reference to marriage equality.

The ACT bill, however, is much less careful, referring to marriage equality and applying the Act to marriages not within the meaning of the Marriage Act. It appears much more vulnerable to attack on inconsistency grounds.

Territories – an extra complication

Added to this mix of interpretative issues is the fact that the ACT is a territory, rather than a state. It derives all its legislative power from the Commonwealth, as well as limitations on its legislative power.

Interestingly, the Commonwealth has full power (similar to state legislative power) to make laws for its territories, so it may have a broader power to deal with same-sex marriage in the territories than it does under its “marriage power”.

The Commonwealth can therefore potentially delegate a broader power to the ACT to legislate on the subject, but it can also legislate to limit that power, as it has previously done in relation to euthanasia.

Alternatively, it can take its chances with a High Court challenge and argue that there is inconsistency.

The need for certainty

Given the uncertain interpretative issues and the importance of the subject, a High Court challenge is the best course. This way, hopefully, the constitutional and legal issues will be resolved, so that Australia’s parliaments can deal with the issue of same-sex relationships with greater certainty as to their powers and the likely effectiveness of their laws.

Join the conversation

56 Comments sorted by

  1. Jim KABLE

    teacher

    All I know is that nigh on 40 years ago when my wife and I married in Melbourne it was outside the state in which we were born (NSW) and we had to make some kind of special application which acknowledged that fact/fulfilled Victorian Registry of Marriage requirement. We made no application to the Commonwealth.

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  2. Philip Howell

    Solicitor

    My only disagreement is with the statement that 'it would be difficult to claim that the term marriage has a settled contemporary meaning'. Its settled meaning is obvious - it means a union between a man and a woman. The same sex marriage movement is trying to change that meaning. The ACT legislation is only necessary because marriage currently does not include same sex unions. This is why the Commonwealth's challenge should fail. It only has power over marriage; not same sex arrangements. I support the ACT legislation, but it has been a major strategic blunder for the gay movement to call it marriage and attempt to promote it at a Commonwealth level.

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    1. Jaxson Bateman

      Student

      In reply to Philip Howell

      While you could argue that a 'settled' definition is man and woman, in regards to definitions as a whole, they change all the time. And indeed, if you look in many prominent dictionaries, they now include same-sex relationships under the definition of marriage.

      The biggest issue in regards to definition, in my opinion, is when people try to apply religious definitions as opposed to secular definitions in order to deny this right to the LGBT community. IMO, religious communities can keep doing what they want in regards to who they let marry and who they don't, but the government should be using secular definitions when evaluating policy.

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  3. ian cheong

    logged in via email @acm.org

    "can the Commonwealth override the ACT on marriage equality?"

    It sounds like the law already says that the Commonwealth law overrides state/territory law.

    Specifically, the Act defines "marriage" means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

    "SECT 88EA Certain unions are not marriages
    A union solemnised in a foreign country between:
    (a) a man and another man; or
    (b) a woman and another woman;
    must not be recognised as a marriage in Australia."

    So where is the wiggle room for the ACT????

    The rationale for "marriage" in the Act appears underpinned by prevention of genetic inbreeding, protection of women/children from "slavery" or bigamy, and determination of "legitimacy" of children. On those rationales, one could argue favourably for same sex marriage. But it looks like it won't happen until the parliament in convinced of the arguments, which don't appear to have been made in the media.

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    1. Stephen H

      In a contemplative fashion...

      In reply to ian cheong

      Ian, as far as I'm aware the ACT remains part of Australia, and so the section you quote is not relevant.

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    2. ian cheong

      logged in via email @acm.org

      In reply to Stephen H

      Sect 88EA clearly applies to "marriages" which are legal in foreign countries purely because they are not legal in Australia. That the words explicitly exclude same sex unions not being recognised as marriages is still likely to mean something to a judge whose job is to interpret the law.

      As others have said, the ACT's legal strategy seems flawed and in some respects a failed attempt to change the law means the issue will die for some time longer.

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  4. Jeffrey Weissel

    Retired

    Very clear piece, thank you.

    It is true that the definition of "marriage" accompanying the 2004 amendment of the Marriage Act (Cth) serves to guide legal interpretation and implementation of the Act from the Commonwealth's perspective. Other people, including you, me, society overall, and even some justices of the High Court might prefer a broader definition, one that includes same-sex unions.

    We cannot be sure what definition the framers had in mind when they included "marriage" as a legislative…

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  5. Evan Whitton

    Legal historian

    A problem with courts deciding issues like this is that in more than eight centuries common law judges have never been trained as judges separately from lawyers. They are lawyers trained in sophistry, a form of lying, one day and judges the next.

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    1. Michael Sheehan

      Geographer at Analyst

      In reply to Evan Whitton

      Who could possibly have both the legitimacy and training to train judges as judges? Democracy, that's "who". One area where judges really do need to get a clue is knowing when to say, "this area is not a decision for the courts". The definition of marriage is definitely one of those areas.

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    2. ian cheong

      logged in via email @acm.org

      In reply to Michael Sheehan

      But in the separation of the law from the state, the judge's job is to interpret the law, not to interpret society. The government's job is to make the law. What judge is going to stretch his judgement outside the law to what he thinks the people might want???? Probably none in the instance where the law is clear.

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    3. Michael Sheehan

      Geographer at Analyst

      In reply to ian cheong

      ian, you have got to be kidding.

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    4. Evan Whitton

      Legal historian

      In reply to Philip Howell

      Many thanks, Philip. I have noted elsewhere that Joel Siegel was wrong when he said: “It’s only the 99% of lawyers who give the rest a bad name.” The bad name comes mainly from trial lawyers, about 40% of the total; the other 60% may be really nice persons who would never stoop to sophistry. I take it you are among the 60%.

      As you will know, Garfield Barwick was our greatest sophist. The tax evasion floodgates opened in 1957 when five sophists on the High Court – Owen Dixon, Dud Williams, Eddie McTiernan, Frank Kitto, and Alan Taylor – agreed with Barwick’s lie that “absolutely” in the 1936 Tax Act did not mean absolutely; there could be exceptions.

      And from 1970 to 1978, the Barwick High Court’s rulings robbed the Tax Office of some $11 billion at today’s rates. In Curran (1974), Barwick, Harry Gibbs and Doug Menzies got away with effectively ruling that a profit of $2782 was a loss of $186,046.

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    5. Evan Whitton

      Legal historian

      In reply to Michael Sheehan

      Michael, in Australia, the decision to become an untrained judge is an afterthought. After a trial lawyer has made his pile, he may decide to grab a bit of status and retire to sit on a bench.

      It is different in the system reformed by Napoleon. In France, the decision to be a judge is like deciding to be a doctor or an engineer. After some training in the basics, you go to judge school and are appointed on the basis of examinations, not by a politician.

      The French system is totally different…

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    6. Decortes Fleur

      Writer Researcher Producer at creative industry

      In reply to Evan Whitton

      A most valid point.
      Human Rights Lawyer Geoffrey Robertson QC - never a judge but a well published author, and 'temple middle bencher' facilitates the training of JUDGES who will serve at the ICC - International Criminal Court - in he Hague.

      I ABSOLUTELY BELIEVE that JUDGE TRAINING SCHOOl and JUDGE GRADUATION should become qualifiers to follow any initial appointment to the bench however 'magnanimous' a gesture of appointment this may be, when coming from the Attorney General or leader of political party.

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    7. Evan Whitton

      Legal historian

      In reply to Decortes Fleur

      Descortes, I do not believe It is not possible to successfully “converge” a system run by trained lawyers and a system run by trained judges, but the UN foolishly tried to do it in 1993 with the International Criminal Tribunal for former Yugoslavia (ICTY).

      The tribunal boasts on its website: “It [ICTY] has created an independent system of law, comprising of elements from adversarial and inquisitory criminal procedure traditions … It has established a unique legal aid system, and groomed a group…

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    8. Michael Sheehan

      Geographer at Analyst

      In reply to Evan Whitton

      Evan...aahh! Excellent point. I'd forgotten about the continental civil law system.

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    9. Evan Whitton

      Legal historian

      In reply to Evan Whitton

      In my reply to Decortes, I meant to say it is impossible to successfully converge the two systems. My apologies

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  6. Patrick Easton

    Law Student at Melbourne Law School, University of Melbourne

    Anne, thank you for your explanation.

    It is unfortunate that the framing of the legislation as 'marriage equality' may render the ACT legislation more vulnerable than if it were framed as 'same-sex marriage'. 'Marriage equality' is different in character to 'same-sex marriage' in that it covers the ambit of the human experience by acknowledging the marriage of men, women and intersex peoples.

    To what extent do you think contemporary physiological understanding of sex as non-binary in nature could factor into the High Court's decision making?

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    1. Michael Sheehan

      Geographer at Analyst

      In reply to Patrick Easton

      "To what extent do you think contemporary physiological understanding of sex as non-binary in nature could factor into the High Court's decision making?"
      None whatsoever, because there is no such "contemporary physiological understanding of sex as non-binary in nature".

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    2. Patrick Easton

      Law Student at Melbourne Law School, University of Melbourne

      In reply to Michael Sheehan

      With respect, Michael, there is. The "contemporary physiological understanding of sex as non-binary in nature" I refer to is the understanding of intersex people as distinct from the binany male-female paradigm. I've heard various figures, although I haven't found an authoritative statistic yet, which indicate that around 0.1% of the Australian population is of neither the male or female 'sex'. This is a non-trivial proportion of the population and, if accurate, would represent more than 100 000…

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    3. Michael Sheehan

      Geographer at Analyst

      In reply to Patrick Easton

      "Intersex", by definition, is not a "sex" at all, and therefore the binary stands.

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    4. Decortes Fleur

      Writer Researcher Producer at creative industry

      In reply to Patrick Easton

      That is such a vital question for debate.
      How would the High Court admit the evidence?

      The legal definition of a man will be a man naturally born....not an artificial or 'transformational' man.

      The legal definition of a woman ditto but there would also need to be a blood test and a 'chromosome' argument for the Marriage Act to recognise the right of the TRANSFORMED to 'reproduce' via advanced 'biological technology....in a marriage.

      A man 'made of a woman' or a 'woman made of a man' is…

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    5. Patrick Easton

      Law Student at Melbourne Law School, University of Melbourne

      In reply to Decortes Fleur

      Michael, you may have me on the tautology but the issue remains. What will the High Court make of the definition of marriage given contemporary understandings of physiology? It is now understood, as I'm sure it wasn't at the time of Federation, that humanity is not made up of male and females, to the exclusion of all others (pun intended).

      Descartes (sorry, couldn't resist a Blade Runner reference), I'm referring to Intersex peoples, rather than transgender peoples as I think you are. I don't know know much about it but I believe that 'transgender' is predominantly a matter of self-identification and 'intersex' is matter of genetics.

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    6. Paul Coddington

      logged in via Facebook

      In reply to Michael Sheehan

      Dictionary and legal definitions hold no weight against scientific evidence when assessing reality. Discoveries in biological sciences disagree with you. If the law won't take science into account, then the law is an ass.

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    7. Michael Sheehan

      Geographer at Analyst

      In reply to Paul Coddington

      Actually, Science comes about fifth, after the people, the dictionaries, the Parliament, the Courts, and so on. And science has not "discovered anything" anyway.

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    8. Michael Sheehan

      Geographer at Analyst

      In reply to Patrick Easton

      Patrick, the fact a very minute number of people experience some form of chromosomal malfunction does not in any way change the reality of sexual dimorphism.

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  7. Stephen H

    In a contemplative fashion...

    The important question is whether the Commonwealth SHOULD override marriage equality legislation. It definitely has the power - especially in the territories, where people have less rights.

    Forty years ago, a divorced person was unable to remarry in most churches. (They also had to persuade a court of the need to get divorced, and why the other person was cruel/adulterous). The Bible says marriage is for life, so you shouldn't get divorced. If you did get divorced, well, you've had your shot at married bliss. It's strange how pedagogues are able to move with the times on some things (especially when those affect 40% of the congregation), but not others.

    Interestingly, divorce is apparently not permitted in only two "jurisdictions": the Philippines (although an exemption exists for Muslims), and Vatican City.

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    1. Michael Sheehan

      Geographer at Analyst

      In reply to Stephen H

      Stephen, the rules pertaining to marriage in churches, and different religions, are not relevant to the rules pertaining to marriage under legislation, such as the Marriage Act.

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    2. Stephen H

      In a contemplative fashion...

      In reply to Michael Sheehan

      Michael, I would agree with your remark were it not for the fact that religious institutions are the force currently preventing gay marriage. As they were for a long time the reason there was no divorce - instead people lived in unhappy, loveless and violent relationships until they died (too often at the hands of their partner).

      The same prudish attitudes are why prostitutes in many places still have to deal with more violence from law enforcement officers than from their "johns" or pimps. And why women in Ireland (along with many other countries) still die for lack of access to legal abortion.

      Laws should protect and promote individual rights, not force the beliefs of a few onto the many.

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    3. Michael Sheehan

      Geographer at Analyst

      In reply to Stephen H

      "Michael, I would agree with your remark were it not for the fact that religious institutions are the force currently preventing gay marriage."
      No they aren't. Parliament is.

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    4. Stephen H

      In a contemplative fashion...

      In reply to Decortes Fleur

      Decortes, pragmatism works quite well, along with recognising that "sex slavery" is a problem that is over-reported and under-existent. Yes, sex slaves exist. That is a criminal matter, as is anything that interferes with an individual's liberties. Prostitution exists and will always exist - let women choose their profession free of the stigma that is currently associated with it. (Apart from anything else, if prostitution is a properly regulated profession then sex slavery becomes a lot more difficult and presumably unnecessary).

      You may be interested in the views and data presented at http://maggiemcneill.wordpress.com/author/maggiemcneill/ - from someone who has worked in the sex industry.

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    5. Paul Coddington

      logged in via Facebook

      In reply to Michael Sheehan

      Yes, parliament (specifically, the prime minister acting on their own initiative) is standing in the way for religious reasons.

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    6. Michael Sheehan

      Geographer at Analyst

      In reply to Paul Coddington

      "specifically, the prime minister acting on their own initiative"
      She was an atheist.

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  8. Coenraad van der Westhuizen

    logged in via email @gmail.com

    Doesn't s 28 of the ACT (Self-Government) Act operate more narrowly than s 109 of the Constitution? Section 28 explicitly provides that laws are consistent if they are 'capable of operating concurrently'. That seems to exclude indirect, covering-the-field inconsistency, and it's on that basis, as I understand it, that the ACT was advised it had the power to legislate for marriage equality. I would have thought the ACT has a stronger argument than the states simply for that reason. Of course, the Federal Parliament could still simply override it.

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  9. Dianna Arthur
    Dianna Arthur is a Friend of The Conversation.

    Environmentalist

    I consider myself to be a real Libertarian, not one of the faux 'neo' variety.

    All of which prompts me to ask WTF has the government got to do with who we choose as partners in life? All this 'legalese' is an obfuscatory attempt to involve the state in a part of our private lives.

    For purposes of welfare and other government services same sex couples are treated the same as de facto heterosexual couples, therefore, why are they not able to marry?

    This so-called definition of 'woman' and 'man' appears absurd when one adds trans-gender people into the mix.

    Legalese to bolster prejudice - this move by the Federal government is little more than that.

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    1. Michael Sheehan

      Geographer at Analyst

      In reply to Dianna Arthur

      "WTF has the government got to do with who we choose as partners in life?"
      Nothing. Which explains why the government does NOT concern itself which your choice/s of life partner/s.

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    2. Dianna Arthur
      Dianna Arthur is a Friend of The Conversation.

      Environmentalist

      In reply to Michael Sheehan

      Wrong, Michael. While the state continues to involve itself in who can marry whom it is involving itself in individual choice.

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    3. Felix MacNeill

      Environmental Manager

      In reply to Michael Sheehan

      No, but it does concern itself with who you may or may not marry.

      and the useful difference is..?

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    4. Michael Sheehan

      Geographer at Analyst

      In reply to Dianna Arthur

      Dianna, "partners" have nothing to do with marriage.

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  10. David Stein

    Businessman

    Anne - thank you for this excellent post.
    And what a fascinating construct - the idea that 'marriage' could be a separate concept from 'same sex marriage'. A same sex marriage statute could be passed by the States. Marriage can then continue to be defined as it currently is by the commonwealth as between a man and a woman, not inconsistent with a State same sex marriage statute.
    Anne, are there any other statutes that have survived High Court scrutiny with these sorts of definitional fixes?

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    1. Brian Oliver

      logged in via Facebook

      In reply to David Stein

      "And what a fascinating construct - the idea that 'marriage' could be a separate concept from 'same sex marriage'."

      Yes, isn't it. I wonder what Dennis Altman would make of the idea. I just read his 'The End of the Homosexual'. He is interested in the apparently incompatible values of a distinct gay and lesbian identity, on the one hand, and greater social integration, on the other. This idea may go some way to a compromise.

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    2. David Stein

      Businessman

      In reply to Brian Oliver

      Thanks Brian - I think the construct is an entirely legal one. Since the Commonwealth says it does not want same sex marriage to be defined as marriages under the Marriage Act, a 'separate but equal' solution could allow same sex couples to be married under a Same Sex Marriage Act.
      It would be horrific if practical equality was achieved under the auspices of a 'separate but equal' doctrine but that's the argument that would have to be made to the High Court to defend the Tasmanian construct. And as others have noted, there would be far reaching practical implications of having 2 sets of marriage arrangements.
      Dennis Altman's post-gay ideas are interesting - thanks for mentioning him, I don't necessarily agree that people are incapable of sustaining multiple cultural identities. Fascinating to think about.

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  11. Comment removed by moderator.

  12. john macphail

    Thinker/Doer

    Nice article but it doesn't consider the crucial point. If the ACT proposal becomes law, what will be the legal effect of having a same sex marriage partner? Will the many pieces of federal, state, territory and other legislation, regulations or such like apply to the partner? In other words, where I see the term 'spouse', 'husband','wife', etc in a written law, will that be interpreted to include 'same sex marriage partner'?

    As an example, section 18 Evidence Act 1995 (Clth) enables a person who is required to give evidence against their 'spouse' in a criminal prosecution to refuse to do so. Will this apply? (There is a similar carve out for a 'de facto spouse' but this is specifically defined to mean a preson in a man/woman or woman/man relationship.)

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  13. Rajan Venkataraman

    Citizen

    Thanks for the article Anne
    I'd be interested to know what impact (if any) the Territory Rights amendments that were passed by Parliament a couple of years ago might have on the ACT laws?

    It's interesting that - in arguing against the Territory Rights amendments two years ago - the current Attorney General said: "They have, in effect, whether they realised it or not, given their sanction to gay marriage in the ACT" (see link below).
    http://www.abc.net.au/news/2011-08-18/senate-passes-rights-bill/2845366

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    1. Rajan Venkataraman

      Citizen

      In reply to Rajan Venkataraman

      In relation to my previous comment, those interested in parliamentary procedure may already have seen that the explanatory memorandum accompanying the Territories Self Government Legislation Amendment Bill (2011) says:

      "As a Commonwealth law, the Marriage Act 1961 will override any inconsistent State or Territory law to the extent of the inconsistency. The Bill will not enable the ACT or the NT to enact its own law to define ‘marriage’, or any law that would otherwise be inconsistent with the Commonwealth Marriage Act 1961. The Bill, as amended, would not alter the existing legislative powers of the ACT or the NT to make civil union laws."

      The memorandum goes on to say:

      "Similarly, enactment of the Bill, as amended, will not affect the operation of the Commonwealth Euthanasia Laws Act 1997, which prevents the territories from enacting euthanasia laws."

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    2. ian cheong

      logged in via email @acm.org

      In reply to Rajan Venkataraman

      The problem with legal sophistry is that for every legal opinion, there is an equally opposite opinion. The only one that matters in the end is the opinion of the court.

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  14. Haydon Dennison

    Student

    Given the readiness of the federal government to take this issue to the High Court, I can't see the ACT legislation lasting too long - either the High Court strikes it down as inconsistent with the Marriage Act 1961, or the federal government will act to create a situation where the ACT legislation can no longer legally stand.

    As for the Constitutional aspects of it all, I think the article gets it right in saying that the ACT legislation is not clear enough in its wording to avoid being caught as legislating on "marriage", which the Commonwealth have defined such to exclude same-sex marriage.

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    1. David Stein

      Businessman

      In reply to Haydon Dennison

      I think you are probably right, Haydon. Those interested in a longer term rights agenda would be well served if the ACT just got on and passed the law and couples started to get married. Why they are wasting time talking about it rather than just getting the legislation through is beyond me.
      Knowing that the law will be overturned should make speed a priority.
      In California, couples were married from June through November 2008 when Proposition 8 put same sex marriages on a hiatus until the recent Supreme Court decision in June 2013.
      The only practical solution was to treat those couples who had been able to get to the altar between June and November 2008 as married. The mere existence of these married couples made the Supreme Court decision inevitable, regardless of the dubious grounds on which the decision was made.

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  15. James Jones

    logged in via email @gmail.com

    This may be an obtuse question, but it seems as good a place as any to ask...

    If the Act defines marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life", then how is divorce not inconsistent with the Commonwealth definition of marriage given that marriage is "for life" ?

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  16. Decortes Fleur

    Writer Researcher Producer at creative industry

    States rights are a particularly Australian issue and states should have the right to legislate.
    When it comes to the constitutional rights of free citizens to 'carry out actions' the law is based on precedent against original....and what relationship this new legislation has to the Criminal Code - if any.

    The Commonwealth Criminal Code forbids 'treachery' and GEORGE BRANDIS (big fan although he looks a bit like a Cane Toad from certain angles) may argue this.

    Missing from Pro Twomey's Sydney…

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  17. Paul Coddington

    logged in via Facebook

    SECT 88EA makes me wonder if we also have laws that explicitly nullify marriages that are the product of other religions and cultures? I am surprised people are citing SECT 88EA rather than crying out for it to be abolished.

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  18. Stefan Treyvaud

    Marcomms Specialist

    Always good to get a balanced pov from media - how refreshingly rare.
    Unfortunately - from this layman's pov - it doesn't sound promising for those of us who believe in marriage equality.
    No doubt the chance of equality is further diminished by our narrow-minded - and totally hypocritical - 'stop the progress' coalition government.
    Next term, maybe.

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