The federal, state and territory governments face some constitutional as well as ethical difficulties over same-sex unions.
The debate has flared again after ACT Attorney-General Simon Corbell vowed to push ahead with legislation similar to that vetoed by the Howard Government. Initial indications were that the new Federal Labor Government would not veto it. Prime Minister Kevin Rudd said Federal Labor was not in the business of over-ruling territory law. State and territory governments were answerable to their own electorates.
But federal Attorney-General Robert McClelland later indicated that he would like to see uniform legislation along the lines of that in Tasmania. That would mean a register, rather than a system of formal ceremonies in which same-sex couples make a legal pledge to each other before an official as proposed by the ACT Civil Partnerships Bill. It would also mean gay couples would not be discriminated against under federal law, other than, perhaps, not being able to be called themselves “married”.
Let’s leave aside the Commonwealth’s undoubted constitutional power to veto any ACT law on anything or the appropriateness of the occasions on which it does so. The greater constitutional conundrum lies with the commonwealth-state relationship.
The Commonwealth’s power is limited by the Constitution. But if it makes a law within constitutional power, it overrides state legislation. If there is no Commonwealth law, the states’ legislative power is unlimited.
The Constitution gives the Commonwealth power to “make laws with respect to . . . marriage”, among other things.
The Constitution empowers the High Court to interpret the Constitution when matters (or disputes) arise over its application.
So it is for the High Court to determine the meaning of the word “marriage” and whether a law is “with respect to it”.
The Howard Government’s 2004 legislation that purports to define “marriage” as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” is, therefore, almost certainly unconstitutional as beyond the power of the Commonwealth Parliament.
The point can be illustrated with a less contentious subject matter. The Constitution gives the Commonwealth power to make laws with respect to lighthouses. That does not give the Commonwealth power to define what a lighthouse is – by saying, for example, that a lighthouse is any building more than four metres high within five kilometres of the coast — and then to legislate to insist that all things the Commonwealth says are lighthouses must be, say, painted red and white.
Constitutional law does not permit the Commonwealth to behave like Humpty Dumpty in Alice in Wonderland and announce: “When I use a word it means just what I choose it to mean.”
The Commonwealth has no power to define as it pleases words in the Constitution such as “marriage” and to legislate according to its own definition.
As it happens the Commonwealth’s definition of marriage may never be tested because nothing, at present, turns on it. No rights and duties appear to have been created by it, so there is no dispute for the High Court to hear, and the court does not entertain mere applications for declaration of principle.
The Commonwealth obviously has power under the tax, insurance, social security and foreign-affairs powers to ensure same-sex couples are not discriminated against under Commonwealth law, such a survivorship of pensions and the like.
But what if the Commonwealth decided to legislate to overturn any state legislation that purported to legislate for same-sex marriages?
Commonwealth over-riding legislation would result in rights and duties being contested. For example, siblings or parents of a deceased intestate same-sex partner would be in dispute with the surviving partner. The surviving partner would argue that they had been in a “marriage” and should inherit, whereas the siblings and parents would argue the “marriage” was invalid and they should inherit.
It would lead to an ironic position for the Commonwealth. For the Commonwealth to validly outlaw state same-sex marriages, it would have to rely on the marriage power. It would have to argue that such a law was “with respect to marriage”. Ironically, it would have to admit that same-sex unions are “marriages” in order to use the marriage power to outlaw state same-sex marriages.
It would have to convince the High Court to rule that the word “marriage” in the Constitution included same-sex unions and was not only the union of a man and a woman. Otherwise same-sex unions would not come within the marriage power and the Commonwealth would have no power to prohibit them. The field would be open for the states to legislate as the please with respect to same-sex unions. They could even call them “marriages”.
The states can behave like Humpty Dumpty and say that a word means just what they choose it to mean, but the Commonwealth cannot.
We know the Commonwealth can use the foreign-affairs power to recognise or not recognise foreign marriages – for example a same-sex marriage that took place in a province of Canada which allowed it, or a potentially polygamous marriage (where a man marries just one woman but would be permitted further wives) that took place in, say, Egypt.
Australian law recognises the latter, but not the former.
But the question remains as to whether same-sex couples resident in a non-same-sex-marriage state could marry in a state that allowed such unions, and what effect that would have –especially given the constitutional requirement for each state to give full faith and credit to each others laws.
Further questions remain about property rights of same-sex couples, married or not.
Obviously there are different views about whether same-sex unions should be recognised as “marriages”. But given the complexity and difficulty of the constitutional position, it might be better for the states, territories and the Commonwealth to arrive at a common position rather than having rights and duties made dependant on what state or territory one lives in or dependant on constitutionally untested law.