First the Howard Government, now the Rudd Government, has got itself into a constitutional bind over gay unions.
The Rudd Government’s threat to overturn any ACT law on civil unions that provides for ceremonies equivalent to marriages can be easily backed up by the Commonwealth’s power over the territories.
It does not even require further legislation because the Australian Capital Territory Self-Government Act provides that the Governor-General (advised by the Territories Minister) can disallow any legislation passed by the ACT Legislative Assembly.
How it should exercise that power, as a political or moral question, is another matter. More on that anon.
Rather, the difficulty the Feds have will come when a state wants to enact the sort of laws the ACT wants to enact.
The Howard Government fell into a constitutional trap with its amendments to the Marriage Act, with which the Rudd Government has agreed.
The amendments provide that “marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.
This is almost certainly unconstitutional and beyond the power of the Commonwealth Parliament.
The amendments also provide, “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.”
This is almost certainly valid under the external-affairs power, and possibly the marriage power.
Why is the man-woman definition amendment unconstitutional?
Well, the Commonwealth has a list of legislative powers under the Constitution. They include “marriage”, “defence” and “lighthouses”, among many other things.
When the Commonwealth makes a law that is challenged, it is for the High Court to say whether it is within power. It is for the High Court to work out the ambit of the meaning of the words of the Constitution.
A law saying, “The Minister for Defence may prohibit an organisation if in his opinion it would jeopardise the defence of the Commonwealth” would be invalid because to attract the defence power it has to be actually with respect to defence, not in respect of what the Minister thinks is defence.
A law saying, “A lighthouse is any structure one-kilometre from the coast and all such structures must be painted white” is equally invalid for the same reason. The words in the Constitution cannot be defined by Commonwealth legislation and then acted upon. If that were the case, the Commonwealth would have limitless power. It could just define any word in the Constitution in whatever way it wanted and legislate accordingly.
So it is not within the Commonwealth’s power to define marriage. It can make laws “with respect to” marriage. It is for the High Court to determine precise what “marriage” is.
It may well be that the High Court comes to the conclusion that “marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.
If so, those in the Government and among the Christian lobby who think this a splendid thing would be quite wrong. This is because if the word “marriage” in the Constitution is so tightly defined, it means the Commonwealth’s legislative ambit is also tightly confined. It means the Commonwealth has no power to override any State law that sets up a system of same-sex unions with ceremonies and state-registered celebrants and equal rights under state law as married people have – inheritance, adoption, custody of children etc.
The Commonwealth would be limited to preventing its celebrants from acting and denying rights under its bailiwick – Commonwealth employment, for example.
Ironically, only if the Commonwealth’s marriage power is wide enough to embrace same-sex marriages will the Commonwealth have the power to prohibit those marriages. You can only prohibit that which you have power over.
Those who would like to see any state same-sex marriages overridden should be hoping that the Howard amendments were a bit of meaningless grandstanding, constitutionally speaking.
Of course, if the Commonwealth marriage power does run to same-sex unions, it would always be open to a future Commonwealth Parliament to recognise them.
As to the conditions under which the Commonwealth should override ACT legislation, there is an important democratic principle. The ACT can never be a state, because the Commonwealth will always have a direct interest in the national capital on behalf of the Australian people.
But for all other intents and purposes, the ACT should be self-governing in the way states are.
So unless the Commonwealth is dealing with a national matter – such a planning, the location of government buildings and the like – it should butt out. The electors of the ACT can exercise their power to throw out or re-elect an ACT Government on merit.
As soon as you accept that the Commonwealth should overturn ACT laws on the basis of what the Commonwealth Government of the day thinks about a state-level issue, the ACT becomes the social plaything of a Federal Minister or Prime Minister who are not directly answerable to the ACT electorate.
Liberal ACT Senator Gary Humphries has been the most principled of the Federal politicians on this. Personally he opposes gay marriages, but he recognises the role of the ACT Government and its electors in determining whether they should happen here. His was one of the rare cases of a Liberal crossing the floor in the Howard years.
Labor Senator Kate Lundy has been quite inconsistent. During the Howard years she was all for ACT power and gay marriages. In Government her position has been – whatever the Labor Caucus (that is, Kevin Rudd) says I will go along with. There’s a woman of courageous principle.
For what it’s worth, I don’t think gay marriages is a big issue for most people in Canberra, but the democratic principle of people being allowed to govern themselves is fundamental.