The Australian Capital Territory Labor Government is set to pass legislation that would allow same sex couples to get married later this month. However, the Federal Government has signalled their intention to challenge this in the High Court, saying it is in Australia's interest to have consistent marriage laws across the nation. This has sparked a battle of constitutional law, with much dissent over whether such a challenge would prevail.
Director of the Tasmania Law Reform Institute Kate Warner explained what is and what isn't unclear.
Can states legislate on gay marriage?
Well, the position is unclear, because both the Commonwealth and the states have powers in relation to marriage. They can both legislate in relation to marriage under the Constitution. The Constitution (Section 51) has enumerated powers and that includes the power to legislate in relation to marriage, so that is a Commonwealth power. But that doesn’t mean the states can’t legislate in relation to it.
What does marriage mean under Section 51 of the Constitution?
We don’t know the answer to that. It could have its common law meaning, which is the voluntary union of a man and a wife to the exclusion of all others for life. So if it means that, then the Commonwealth can’t legislate in relation to same sex marriage in order to recognise it, because they don’t have the power under the Constitution. But they could have the power to protect opposite-sex marriage by prohibiting the states from legislating in relation to it. But that’s not clear, we don’t know whether they could do that or not and that would have to be resolved by the High Court.
So we don’t know whether the Commonwealth can legislate. But can the states?
That depends. Of course they could pass legislation in relation to same sex marriage. The question is, could that be challenged so would it be declared unconstitutional? So here, the question is what has the Commonwealth already done? You could argue that if the states legislate for same-sex marriage then their legislation is inconsistent with the Commonwealth legislation. So, let’s assume for a moment that the Commonwealth can legislate to prohibit same sex marriage. Even though they may not be able to legislate for it, they may be able to legislate to prohibit it in order to protect opposite-sex marriage. So that’s a possibility.
Has the Commonwealth legislated to protect opposite-sex marriage?
That involves an interpretation of what the Marriage Act has done. And it’s arguable both ways. Some people would argue that there would be inconsistency and others have argued that there wouldn’t, that the Commonwealth hasn’t covered the field in relation to marriage in the sense that they’ve covered it in relation to same-sex marriage. So there are a number of positions here. There’s the definition of marriage in the Marriage Act, which gives the common law definition, so it’s a union between a man and a wife, but that doesn’t mean that they’ve necessarily covered the field in relation to same-sex marriage. But there’s another provision which says the Commonwealth will not recognise same-sex marriage celebrated overseas, but it doesn’t say anything about whether or not they would recognise a same-sex marriage which had been solemnised in Australia under state law. So it doesn’t clearly indicate that state laws would be inconsistent with the Commonwealth law.
Is this going to be resolved with the High Court challenge?
With a High Court challenge they could resolve that, yes.
What about the territories— are they different to the states?
What happens with the territories is they’ve got the choice [to legislate], but the Commonwealth parliament can in fact pass legislation disallowing territory law, so that would be one way of doing it. They can’t do that in relation to states. But I think they’ve said they’re not going to do that [in the case of the ACT], they’re instead going to challenge it in the High Court, which is the only option they’ve got in relation to state same-sex marriage laws.
What about the NSW parliamentary inquiry this year that found states and territories had the power to legislate for same-sex marriage?
There are arguments both ways. Some constitutional lawyers say they can, and some say they can’t. The basic question at the moment is: would a state or territory same-sex marriage law be inconsistent with Commonwealth law? We don’t know the answer to that— that’s what the High Court will have to say.
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