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Same-sex marriage is a pending constitutional battlefield

On the weekend it was reported that Tasmania intends to legalise same sex marriage despite the Commonwealth Marriage Act 1961 defining “marriage” as being between a man and a woman. Given that apparent discrepancy, does Tasmania have the power under our Constitution to pass a same-sex marriage law? I will briefly answer this question below. I also refer people to the detailed advice on this matter given by Professor George Williams in 2005.

Australia is a federation. Under our Constitution, power is split between the federal government (“the Commonwealth”) and the States. Most of the federal government’s powers are spelt out in section 51. Under s. 51(xxi), the Commonwealth has power over the subject matter of “marriage”: this provision provides the Commonwealth’s authority to enact the Marriage Act. However, the powers in s.51 are “concurrent” powers, meaning they are shared between the Commonwealth and the States. Hence, the States too have power over marriage.

Given that the Commonwealth and the States can legislate in the same area, there is the potential for inconsistency. Section 109 of the Constitution tells us how to resolve inconsistencies. Basically, the Commonwealth law will prevail.

So how is “inconsistency” determined? Is it likely that the Tasmanian Act would be struck down as being inconsistent with the Commonwealth Act? I speculate on this below, though it is acknowledged that there is as yet no draft of the proposed Tasmanian law. Bills, which have since lapsed, circulated in 2005 and 2008.

The first test of inconsistency is to ask whether simultaneous obedience is impossible. Does one law compel what the other demands? This test will not apply. For a start, neither the Commonwealth Act or any proposed Tasmanian Act will compel anybody to get married.

The second test is to ask whether one law confers a right taken away by the other. Certainly, the Tasmanian law would grant a right for same sex couples to get married which is not recognised under Commonwealth law. But the Commonwealth does not take away such a right: it does not prohibit same sex marriage at the State level. The Marriage Act has nothing to say about that matter.

The most likely source of inconsistency, if one exists, lies under the third test of “cover the field” inconsistency. Under this test, a State law will be deemed to be inconsistent if it is found that the Commonwealth intended for its law to be the sole law on the topic in question (ie. it intends to “cover the field”).

With regard to the Commonwealth’s intention, section 6 of the Marriage Act explicitly preserves the validity of State and Territory laws relating only to the registration of marriage. Section 6 therefore seems to implicitly exclude the validity of State and Territory laws relating to other aspects of marriage. That is, the Commonwealth has signalled an intention to cover the field of all aspects of marriage besides registration. Which is not promising for the Tasmanian law.

But what in fact is “the field” of the Commonwealth law? Identifying the field (ie the topic of a law) for the purposes of section 109 is notoriously unpredictable.

If the field is “marriage”, then the Tasmanian law would be in constitutional trouble. However, Professor Williams suggests that the field is in fact “opposite sex marriage”, thus leaving the field of “same sex marriage” open for the States. In this regard, he points to the parts of the Commonwealth Act dealing with the recognition of marriage solemnised in foreign countries. Section 88EA makes it clear that same sex marriages conducted overseas are not recognised as “marriages” under the Commonwealth law. Given the Parliament clearly turned its mind to this issue, it is significant that the law says nothing about the recognition of same sex marriages conducted in Australia. That may indicate that that field was simply vacated for the States. On the other hand, given that s88EA deals to a small extent with same sex marriage, that may make it more difficult to argue that the field of the law is confined to “opposite sex marriage”.

The explicit reference to marriage being between a man and a woman in the Marriage Act was introduced by amendments in 2004, and was clearly designed to head off arguments that the Act allowed same sex marriage. Ironically, if Professor Williams is correct, the Howard government amendments may also have the effect of reducing the field of the Commonwealth law, and opening up space for Tasmania to fill.

There are international precedents for same sex marriages being performed at a provincial rather than national level. Same sex marriage is permitted and recognised in a number of US states, but not at the federal level. They are also performed in Mexico City, and these marriages must be recognised throughout Mexico.

If Tasmania is to pass the proposed legislation, it will complete a remarkable journey. Tasmania was the last State to decriminalise same sex relations. In 1994, those laws were found by a United Nations body to breach Australia’s international human rights obligations in Toonen v Australia. The State government only reluctantly repealed the law in 1997 when it became clear that they were unconstitutional, as the Commonwealth had overriden them in 1994 in response to the UN decision. Now it seems that Tasmania may be the first domino to drop in recognising same sex marriage.

Such a law will likely face constitutional challenge, and it is not certain that it would survive. However, any victory by same sex marriage opponents could well be short-lived, as the momentum towards acceptance of same sex marriage in this country seems unstoppable.

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19 Comments sorted by

  1. Anthony Nolan

    logged in via email @hotmail.com

    In the days when Tasmania had laws on the books declaring sodomy to be a crime I wrote to the Hobart Mercury arguing that if ever a state required laws banning sodomy it was Tasmania because, as a frequent visitor, I had noted that it was impossible to be in a public space in Tasmania without receiving unwanted and gratuitous offers of sodomy. Oh Tasmania! Ah, how the worm turns. Now, as required, I will attend my son's marriage there if no other state offers such a decent and civil arrangement. The irony is wonderful.

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  2. Gil Hardwick

    anthropologist, historian, novelist, editor and publisher at eBooks West

    Public toilets everywhere in Australia were used as cottages, not just Tasmania.

    The feminists worry about girls being raped, when the pattern in this country was never explicit grooming of girls because heterosexual courting was and is seen as legitimate, desirable, but pubescent and adolescent boys.

    That pattern is extant throughout the Anglophone world. The reason I tend to refute John Paull II calling it "an Anglo-Saxon disease" is the sheer numbers of Catholic boys involved, nowhere near…

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    1. Gil Hardwick

      anthropologist, historian, novelist, editor and publisher at eBooks West

      In reply to Gil Hardwick

      Just to add here, where there are no children involved, no children's interests to be protected, and where the relationship is entirely companionable between responsible adults, there is no clear reason for the formality of marriage to start with, or for that matter any form of state involvement.

      That somebody thousands of kilometres away in Canberra, and someone else even further away in Hobart, wants to stand there bickering over the wording of a sentence on some paper somewhere, with a few queers hysterical over the outcome, in a country carrying up to 60% function illiteracy and needing help even to write a letter, what on earth difference it's going to make is entirely elusive.

      The point that seems to be being made here concerns some entirely abstract legal principle. So what?

      In the end we have so very many laws, if they were to be implemented or enforced, or even obeyed, life would be rendered impossible.

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    2. Sarah Joseph
      Sarah Joseph is a Friend of The Conversation.

      Director, Castan Centre for Human Rights Law at Monash University

      In reply to Gil Hardwick

      The question of whether the mooted law is valid is an "entirely abstract legal principle"? Hmm. Each to their own I guess.

      Perhaps you would spend your time more fruitfully reading one of the many articles that is not about law or same sex marriage, given you seem to find both topics pointless and boring. Though given that attitude, it seems strange you would then go on to comment not once but twice?

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    3. Michael Hay

      retired

      In reply to Sarah Joseph

      Sarah, the legalities leave me cold - I have a huge dislike of convoluted legal argument. To me, the problem is in the word "Marriage". It would seem that this is a religious term which has been adapted to a civilian purpose.
      I can quite see that, as the word for a religious ceremony, the term marriage should stay thoroughly esconced in religious terminology.
      Which leaves the only problem with relationships other than 'man and woman' firmly fixed in the terminology. So, is there a word which can be created or adapted to refer to relationships applicable to any mix of genders and which would be acceptable to the persons concerned, thus leaving the ceremony of marriage to the churches for their exclusive use. This 'new' term could then be written into law and the marriage act may then be dispensed with and a new act covering multiple relationships written.

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    4. Sarah Joseph
      Sarah Joseph is a Friend of The Conversation.

      Director, Castan Centre for Human Rights Law at Monash University

      In reply to Michael Hay

      Fair enough. And I know lawyers & lawyering aren't popular and a that lot of the reasoning sounds clever or gimmicky to a non lawyer. To my mind though, the above arguments aren't actually that convoluted. But I am a lawyer. I can understand that legal arguments leave others cold, just as for example I find IT language impenetrable. Cheers.

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    5. Aaron Troy Small

      Student

      In reply to Gil Hardwick

      The difficulty for mine is that the more laws we have, the less people that can possibly obey all of them. Now I realise their is selective enforcement and that the vast bulk of the population will not have their non-compliance prosecuted, but what of respect for the rule of law? If we continue, we will reach a point (I would argue we have already gone beyond that point) where only a minority actively complies with all legal requirements and stays within all legal restrictions.

      How can it be possible, given the source of a laws authority is the consent of the individual to be subject to the same, to maintain respect (and consent to live under) for the rule of law, when the majority of people are living outside the boundaries of the law, whether wittingly or unwittingly? How do parents teach children to obey the law, when children see parents breaking one or more laws consistently?

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  3. Aaron Troy Small

    Student

    It is truly astounding that here in Tasmania, with the labor market nearing the levels of the 'recession we had to have', with massive unemployment, welfare dependency and all the rest, that the main topic of conversation has turned to 'gay marriage'. I know it is unpopular to ask precisely how such self-obsessed fools gained so much power. After all, I'd have to imagine that the average, everyday, ALP voter is not particularly interested, one way or the other, in 'gay marriage', getting a job, putting…

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    1. Sarah Joseph
      Sarah Joseph is a Friend of The Conversation.

      Director, Castan Centre for Human Rights Law at Monash University

      In reply to Aaron Troy Small

      Hmm. This is an argument I've often seen in The Australian - that governments should focus on "real" (largely economic) issues rather than be distracted by things like same sex marriage.

      I disagree with it.

      First, I'm no expert on the competence of the Tas government but most governments should be able to do more than one thing (to coin a phrase, walk and chew gum at the same time). Secondly, the issue is very important to many people.

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    2. Aaron Troy Small

      Student

      In reply to Sarah Joseph

      Most governments can indeed multitask (an example apposite to this situation is that Nero did in fact manage to fiddle whilst Rome burned). That is hardly the point. This is not 'core' business, it is at best irrelevant (and at worst absurd) to the vast majority of the electorate, especially here in Tasmania where essential services are being cut, schools are being closed, infrastructure is falling apart and industry is leaving the State.

      Unfortunately we had the option of supporting the Greens…

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    3. Aaron Troy Small

      Student

      In reply to Sarah Joseph

      Why should I and the many millions of Australian's who do not care (at least not sufficiently to warrant this obfuscatory waffle) be subjected to this crap? We don't elect politicians to have a 'conscience vote' (for starters we don't believe they have a conscience) and we didn't elect them because of their 'personal beliefs'.

      Personally I am about as interested in the day to day existence of these individuals as they are in the difficulties I face putting food on the table and paying my mortgage…

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    4. Sarah Joseph
      Sarah Joseph is a Friend of The Conversation.

      Director, Castan Centre for Human Rights Law at Monash University

      In reply to Aaron Troy Small

      "... critical importance to 25% of the population"? Where on earth is that in the Constitution?

      I hardly think a same sex marriage law would be "overbearing tyranny". You wouldn't have to get married under it! And why would it hurt you if someone else got married under it?

      I fail frankly to see how same sex marriage threatens majorities at all. Your argument seems to be, though, that same sex marriage rights are so marginal to most people they shouldn't be addressed at all. That same argument could presumably be applied to the rights of any minority (any group less than 25% - Indigenous people, Jews! Muslims etc). I could not agree less.

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    5. Aaron Troy Small

      Student

      In reply to Sarah Joseph

      You may not agree and I respect your right to so do.

      But the simple fact is the Constitution provided for an upper house to protect sizable minority opinions, such as are not adequately protected by the ostensible 50% required by Parliamentary representation. As there are 4 senators per State, that is 25% approval required.

      As to the argument being applied to the 'rights' of any minority, yes it could, anytime they attempted to duckshove what they want through both Parliament and the Senate…

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    6. Sarah Joseph
      Sarah Joseph is a Friend of The Conversation.

      Director, Castan Centre for Human Rights Law at Monash University

      In reply to Aaron Troy Small

      Yes. Ditto to you re disagreement.

      There are 12 Senators per State + 2 each from the Territories. And the origins of the Senate are as a States' house not a house for minorities.

      The latest polling indicates significant majority support in Australia for SSM, so it seems some efforts have been made with the remainder of the population. See, eg, http://www.news.com.au/national/fewer-men-than-women-support-gay-marriage-poll/story-fndo4eg9-1226444358076

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    7. Aaron Troy Small

      Student

      In reply to Sarah Joseph

      I concede that, but the fact remains it isn't an issue that the leadership of this Country saw fit to allow the population to vote on (presumably due to fear of losing critical votes), so how do they have a mandate?

      I dislike Latham intensely, but he did at least allow the population to make the decision vis-a-vis supporting the environmentalists over jobs in Tasmania when he lost the election. It seems the ALP has learned from that, not what you'd expect, that their supporters regard jobs as…

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  4. Lynne Newington

    Researcher

    I'm afraid the Catholic's point of view on same sex marriages and the need for children's rights to have both a mother and a father sounds ever so hollow to me.
    We have clergy unable to maintain their vows due to lonliness and need for intimacy, bringing children into the world and denied their rights to claim them.
    When we deal with our own issues on a hetrosexual basis, rights and needs then we can grandstand on other's family values and rights.

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  5. Chris Maheras

    Law Student

    I have mixed feelings towards the 'Cover the Field' thing.

    The Constitution is supposed to prevent any 'outside the box' bills from being passed on the state level, but acting as a brick wall for any progression in the Same Sex marriage debate is disheartening.

    I hate to state the obvious but I'd love to go back to the Federation's intentions when it created this document. I'm hoping the top priority was justice for Australian citizens; allowing Australians to live as equals in a just and fair…

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