THE CONSTITUTIONAL PROBLEM WITH STATE SAME-SEX MARRIAGE BILLS
Pre 1961 marriage was dealt with by the individual states. In 1961 the Marriage Act was enacted. It was intended to provide a code for marriage in the whole country. When the MA was introduced to Parliament in 1961 then Attorney-General, Sir Garfield Barwick, said that the purpose of the legislation was to “…produce a marriage code suitable to present day Australian needs”.
The MA did not define marriage but s.46 required a celebrant to state that “marriage according to the law of Australia is the union between a man and a woman voluntarily entered into for life”. That is the accepted common law definition of marriage. In 2004 the MA was amended to insert a definition of marriage, namely “marriage according to the law of Australia is the union between a man and a woman voluntarily entered into for life”. It also disallowed foreign Same-Sex Marriages being recognised in Australia.
88B (4) which is part of Part VA, adopts the MA definition
of marriage in relation to the question of the recognition of
foreign marriages. Section 88EA, which is also in Part VA,
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.
In my view this strengthened the position that the MA
covered the field of marriage and so any state SSM would
be inconsistent and found invalid.
Section 109 Inconsistency S.109 of the Constitution provides that where there is an inconsistency between a state act and a federal act the state act is invalid to the extent of the inconsistency. It says: “When a law of a State is inconsistent with the law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”.
Even proponents of SSM accept that after the MA was
enacted there was such an inconsistency and the states could
not legislate for SSM. Professor George Williams told the
House of Representatives Committee: “My view is that,
prior to 2004, there would have been a conflict that would
have prevented any state enacting legislation for the topic
of same-sex marriage.”
Invalidity in the context of section 109 means that the
State law is rendered inoperative as long as the Commonwealth
law is effective. If the Commonwealth law were to be repealed then the State law would revive.
There are two tests which the High Court has developed in order to determine whether a State law is inconsistent with a Commonwealth law. The first is whether there is a direct inconsistency between the laws. The second is whether the Commonwealth law evinces an intention to ‘cover the field’ and so an indirect inconsistency is created.
For section 109 to come into play, there must first be a valid law enacted by the Commonwealth parliament and an otherwise valid law passed by the particular State parliament. If one or the other law is otherwise invalid there is no need for there to be recourse to section109. There can be no doubt that the Marriage Act (including the amendment to introduce the definition of “marriage” made by the Marriage Amendment Act 2004) is a valid enactment of the Commonwealth Parliament. In Telstra v Worthing the High Court elucidated the tests for invoking section 109 when it observed in unanimous reasons: The applicable principles are well settled.
Cases still arise where one law requires what the other forbids. It was held in Wallis v Downard-Pickford (North Queensland) Pty Ltd (1949) 179 CLR 388 at 398 that a State law which incorporated into certain contracts a term which a law of the Commonwealth forbade was invalid. However, it is clearly established that there may be inconsistency within the meaning of s 109 although it is possible to obey both the Commonwealth law and the State law (Viskauskas v Niland (1983) 153 CLR 280 at 291-2)... In Victoria v The Commonwealth, Dixon J stated two propositions which are presently material. The first was ((1937) 58 CLR 618 at 630): When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.
The second, which followed immediately in the same passage, was: Moreover, if it appears from the terms, the nature of the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so inconsistent. The second proposition may apply in a given case where the first does not, yet…if the first proposition applies, then s.109 of the Constitution operates even if, and without the occasion to consider whether, the second proposition applies. The test as to whether there is a direct inconsistency between the Marriage Act and the Bill if enacted is whether the Bill would ‘alter, impair or detract’ from the operation of the Marriage Act. In my opinion there is a strong argument that it would detract from the creation of a single legislative code created to deal with the legislative topic of “marriage”.
The actual and direct impact of the MA is to establish one regime for marriage in Australia. With respect to legal relations between same sex couples, the express effect of the definition of “marriage” contained in the Act is that these are not within the definition of “marriage”. The Act fortifies that definition by saying that foreign marriages between same-sex couples must not be recognised as “marriages” in Australia. Any State SSM Bill must seek to alter that regime. It must also seek to affect the universal operation of the federal Act throughout Australia as a code in relation to “marriage” by creating an exceptional enclave and in so doing impairs and detracts from the MA. By introducing diversity, such Bills run contrary to the very purpose of the MA. Such Bills must seek to provide a recognition for State ‘marriages’ that with respect to foreign “marriages” is forbidden by section 88EA. It seems likely that such Bill, if passed into law would be found to be inconsistent with the MA. If I am wrong in this view on direct inconsistency, there is an equally strong argument that the MA covers the field in relation to marriage in Australia and so if the Bill were passed there would be an indirect inconsistency between the MA and State legislation. The MA sets up a complete regime in relation to marriage in Australia. It is intended as a ‘complete statement of the law’ in Australia. Any State law would enter into the same field and so detract from the operation of the Marriage Act. It is therefore likely to be held invalid. I also consider that since 2004, when the Marriage Act was amended to define “marriage”, the Commonwealth extended the legislative field of that Act to provide an exhaustive definition of “marriage”. That institution cannot be validly re-defined by State law.
Neville Rochow SC and I and the other lawyers in Lawyers for the Preservation of the Definition of Marriage (LPDM) are not alone in this view. In an opinion published in the Constitutional and Policy Review in 2006, Professor Geoffrey Lindell in relation to an SSM Bill previously before the parliament in Tasmania (the Same-sex Marriage Bill 2005) was of the view there was a direct inconsistency between the 2005 Bill and the MA. Dr Augusto Zimmermann in a recent paper entitled “The Constitutionality of Same- Sex Marriage in Australia and Other Related Issues” has expressed a similar view. Proponents of SSM bills argued that the 2004 amendment inadvertently created a loophole in that in defining marriage the Federal Parliament restricted itself to different sex marriage and left open the space for SSM Bills in the States. Professor Williams told the House Committee: “The effect of the 2004 amendments was to make it crystal clear that the federal Marriage Act only extends to heterosexual marriage. This has the unintended consequence of now making it clear that the federal act does not deal at all with samesex marriage.
My view—and it is a view that people will take different views on—is that it actually means that the Commonwealth covers the field of marriage generally but only heterosexual marriage, and if a state wanted to legislate on this topic, it can now do so irrespective of what the Commonwealth has done to this point.” With respect, the fatal and obvious flaw in this argument is that it is contrary to the express terms of the MA. The MA does not purport to deal with different sex marriage at all. At the time of passage, there was no such legal institution in Australia. The adjectival phrase “different sex” begs the question of the possibility of “same sex” marriage, when it is clear that the intention has been to exclude such an institution from Australia. The phrase “different sex marriage” is tautological.
In 2004, there was (and continues to be) only one legal institution described as “marriage” in Australia. The amended MA defines “marriage” as a union between a man and a woman for life. It deals with and establishes a complete statement of law in relation to marriage. Any union that is outside the terms of the MA is therefore not “marriage”. And the Commonwealth legislation was passed in the knowledge that forms of de facto union were the subject of legal recognition in the respective States, including same sex relationships. For current purposes, it is sufficient to observe, firstly, as mentioned above, to speak of “heterosexual” marriage in Australia as a legal tautology and capable of providing neither logical legal space nor foundation for the concept of any other type of marriage – be it homosexual, trans-sexual, bigamous, polyandrous, polygynous or otherwise. Secondly, multiple state or territorial versions of a new legislative form of marriage – say in Tasmania, South Australia and the Australian Capital Territory – would be apt not only to cause confusion and dilution of the currently legislated institution but would run counter to the apparent legislative intent of the MA, which appears to have been to codify a single national law on the topic of marriage, leaving space for other legal relationships that are not “marriage” as defined. It will be a regressive step, in a time when the emphasis has been on the harmonisation of laws in Australia. Both of these considerations add further weight to the opinion of likely unconstitutionality of State SSM Bills if passed into law.
Professor Williams in his evidence before the House of Representatives Standing Committee on Social Policy and Legal Affairs public hearing in relation to two bills currently before the Commonwealth Parliament, did not assert his opinion was definitive in relation to state laws on same-sex “marriage”, saying that there was “no clear answer” in relation to this issue. With respect to Professor Williams, to my mind and to the minds of many other lawyers, Professor Williams’ argument is wholly unconvincing.
In Tasmania a Same-Sex Marriage Bill has been reintroduced. There is an SSM Bill before the South Australian Parliament. The Australian Capital Territory government has indicated that it will introduce an SSM Bill, and there are Bills in Victoria and Western Australia. There is a parliamentary inquiry in New South Wales.
THE POLICY ISSUES
If SSM laws are passed there will have been a substantial change in authority in relation to marriage. Halsbury’s Laws of England gives as authority for the Hyde v Hyde definition of marriage the Book of Common Prayer and the authority for the Book of Common Prayer is the Scriptures. If the definition is changed the authority for marriage will now be human emotion- an assertion that people are entitled to do what they like. Experience has shown that each experiment with marriage-like relationships has been deleterious for children. The nature of marriage will be changed from a potentially fertile union to nurture children to a union only in relation to adult affection in which the nurture of children will not be central.
If marriage was not to be between a man and a woman what is the logical basis to preclude polyamorous unions or unions between siblings? In the House inquiry a Victorian MP said that this was a big debate in her electorate as she had a lot of Middle Eastern community. The effects of the anti-discrimination legislation on churches etc will be significant, if SSM Bills are passed. In the Federal Sphere s.116 of the Constitution provides some protection from the Federal parliament passing any law prohibiting the free exercise of religion but there is no such protection at state level.
The Human Rights and Anti-Discrimination Bill is so broad it is eminently foreseeable that it will be used against those who speak against SSM, whether from the pulpit or otherwise. Paul Kelly writing in The Australian on 22 September 2012 said: “Once the state authorises SSM then religions will come under intense pressure to allow SSM, and another campaign based on a further application of marriage equality will begin.” Looking at the passions of the SS movement can this be seriously doubted? At that point the ideology of marriage equality runs into direct conflict with the idea of religious freedom, something will have to give. The passions of the SS movement will mean that it is quite likely that there will be a push in time to prohibit the free proclamation of biblical truth insofar as it suggests that SSMs are wrong according to the Bible and so there will be a move to silence unfettered preaching or at least the proclamation of Biblical truth in the public space.
The Current SA Bill though it provides an exemption for ministers of religion does not provide an exemption for churches or halls attached to churches being used for SSM ceremonies. It is entirely foreseeable for a SS couple to seek to hire a church building and if refused to bring an application under the Equal Opportunity Act 1984 for orders or compensation. Similar litigation has occurred here and overseas. The same could occur in any other State. SSM is not a human right. Two decisions of the European Court of Human Rights, in 2010 and 2012 have held that same sex marriage was not a human right under the European Charter of Human Rights (ECHR).9 This is important as the ECHR follows the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights.
Therefore one of the premier human rights courts in the world has held that SSM is not a human right. The push by the proponents is not based on any sound legal principle. It is bad governance for a state to press ahead with an SSM Bill, in the light of the obvious inconsistency with the MA. The only proper way for there to be a change of this magnitude considered, is for the issue to be put to all the people by a referendum under section 128 of the Constitution. This debate is critical, in my view, to the maintenance of sound constitutional and social policy in relation to marriage and family law. The constitutional limits must be respected. Anything else is, at its core, undemocratic. In terms of policy, the time proven, Biblical basis for marriage must be maintained for the good of our society.