MARRIAGE and death are among the most important things humans have to deal with. After the Howard and Rudd Governments did their best to take them off the Federal Parliament’s agenda permanently, the Greens are to use their new-found position of power to put them back on.
Both issues engender a fair amount of emotional and religious excitement, but constitutionally they are quite different. That difference is not well-understood, nor is the potential constitutional bind that supporters of same-sex marriage might find themselves in.
More on marriage anon. The euthanasia position is clearer.
The Northern Territory passed the Rights of the Terminally Ill Act in 1995 to come into force the following year. But before the Act could be used, Kevin Andrews, a Minister in the Howard Government, got a Bill into the Federal Parliament overturning it.
The Bill was passed in 1996 on a conscience vote and came into force at the beginning of 1997. Its constitutional basis was the Commonwealth’s undoubted constitutional power over the territories. The 1997 Federal Act simply amended the federal legislation that granted self-government to the Northern Territory and the ACT to say that their respective Assemblies had no power to make laws with respect to euthanasia.
Prime Minister Julia Gillard has now promised a new conscience vote on whether that disempowering legislation should be repealed.
Many current and former territory politicians say it is a matter of territory rights to govern themselves, even if they personally disagree with euthanasia.
On the other hand many MPs who spoke in 1996 said it was a moral issue of such moment that the Federal Parliament should use whatever power it had to stop it.
It is now a moot point as to whether a repeal of the 1997 federal Act would automatically reinstate the Northern Territory Rights of the Terminally Ill Act. It is likely though that, given it was never put into regular practice, some further regulation or revisiting would be required to make it work.
But even if the law is not repealed, some states are on the verge of introducing euthanasia and it is unlikely that the Federal Parliament could or would do anything about it.
The Commonwealth does not have any obvious power to do anything about a state changing its criminal law on murder and assisted suicide to allow euthanasia. Once some states introduce it, a repeal of the federal ban in the territories would probably follow.
On the other hand, same-sex marriage is constitutionally a much more tangled issue.
The Howard Government attempted to put paid to same-sex marriages by inserting a definition in the Marriage Act defining “marriage” as the union of a man and woman to the exclusion of other for life.
But that is almost certainly constitutionally invalid. The problem with that law is that the Constitution gives the Commonwealth power to make laws “with respect to marriage”. That does not mean a power to define marriage. Otherwise the Commonwealth could purport to define “marriage” as anything it liked – say, joining an industrial union – and then proceed to ban or regulate that activity as a law with respect to marriage.
Let’s illustrate the point without a moral dimension. The Constitution gives the Commonwealth power to make laws with respect to lighthouses.
That does not give the Commonwealth power to define lighthouses – say, all buildings three kilometres from the coast – and then proceed to put height and colour limits on those “lighthouses”.
The Commonwealth only has power to make laws with respect to what the High Court defines as lighthouses, not whatever the Commonwealth Parliament defines as lighthouses.
Similarly, the Commonwealth only has power to make laws with respect to what the High Court defines as marriages, not whatever the Commonwealth Government defines as marriages.
Where does that leave those who want marriage equality?
In an ideal world, a federal law would provide for same-sex marriages with their attendant rights and duties and the High Court would interpret the word “marriage” in the Constitution as now meaning a union between any two adult people and hold the law as a valid law with respect to marriage.
This is quite possible. In a 1999 case High Court Justice Michael McHugh, almost as an aside to illustrate another constitutional principle, wrote: “arguably ‘marriage’ now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others”.
If that view held in a case where it were decisive, there would be no need for state or territory law. There would be no territory-rights issue.
But it may not be an ideal world. The High Court could hold that “marriage” in the Constitution means a only a heterosexual union.
That would mean only the states and territories could deal with same-sex unions. But they could never be “marriages”. Further, they would be limited to the application of state law – succession, housing, property rights on separation and the like. Any federal application of a gay couple’s rights and duties – social security, superannuation and the like – would require federal legislation. Admittedly a lot of which is already in place.
In short, people desiring same-sex “marriages” should not be holding out for territory and state law, but for a federal law providing for same-sex marriages and a High Court decision holding that he word “marriage” in the Constitution now includes same-sex unions.
If the High Court rejects that interpretation, another option would be for the states to hand over their power to regulate relationships to the Commonwealth. Difficult stuff, but less difficult than a referendum to change the Constitution.
The worst case for proponents of same-sex equality would be this: the High Court holding that “marriage” in the Constitution means heterosexual union, and a federal law over-riding state and territory law on same-sex unions also being held valid as incidental to the marriage power because that law would be said to be upholding the sanctity and validity of heterosexual marriage. This is quite within the realm of ordinary constitutional interpretation.
In short, the message to the Greens is, yes pursue euthanasia, but be careful pursuing same-sex marriages without looking at all the constitutional difficulties. More will depend on the High Court than the Parliament.
As to territory rights, the Feds should adopt the general principle that they will treat the territories like the states and either legislate for all of them or none of them. The exception would be legislating about the national-capital aspects of the ACT.
CRISPIN HULL
This article first appeared in The Canberra Times of 25 September 2010