Advice re the Validity of the proposed Tasmanian Same-Sex Marriage Act and Same-Sex Marriage (Dissolution and Annulment) Act.

In my opinion, the proposed Same-Sex Marriage Act is inconsistent with the Commonwealth Marriage Act 1961 and would therefore be invalid under s109 of the Constitution.

It is clear that the Commonwealth Marriage Act leaves the general question of homosexual relationships and indeed of other relationships to the States. The Commonwealth could not cover the field of relationships in general because its power is limited to marriage. However, it is much less clear whether the Marriage Act covers the field of marriage, including homosexual marriage, leaving no room for State gay marriage laws. However, in my opinion it does, so that the proposed State Same Sex Marriage Act would be invalid for inconsistency. Much depends on the interpretation of the definition of marriage added in 2004 to the Marriage Act (Cth), which reads:
“marriage” means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

There are two possible interpretations of this provision:
1. it is designed to limit the scope of the Marriage Act to heterosexual marriage, leaving the filed of homosexual marriage open for State legislation. If that interpretation were adopted, the proposed Same Sex Marriage Bill would not fail for inconsistency.
2. it is designed, when looked at in the context of the Marriage Act as a whole, to cover the field of marriage in Australia to the exclusion of any State law, so that any State law with respect to marriage, including a law on same sex marriage, would fail for inconsistency. If that interpretation were adopted, the proposed Same Sex Marriage Bill would be inconsistent and invalid.

As the answer to which of these interpretations is correct depends upon the intention of the Commonwealth parliament when enacting the Marriage Act and the above amendment, arguments can be made both for and against an intention to cover the field. However, in my opinion, the Commonwealth law does intend to cover the field, so that the proposed State Same Sex Marriage Act would fail for inconsistency.

There is a strong argument that the original Marriage Act 1961 was designed to establish a uniform law with respect to marriage throughout Australia, in order to rule out the possibility of different State laws with respect to marriage, especially with respect to capacity to marry, so as to end any possibility that marriages transacted in one State would not be recognised as valid in other States. That this was one of the aims of the original Act is evident from the second reading speech, where the Attorney-General said:

‘At the present time, the marriage laws of the several States and of the Territories to which this bill applies are diverse. The recognition in one State of the marriage status acquired in another rests entirely upon the rules of private international law worked out over many generations to regulate such questions as between independent, and in relation to each other, foreign States. The bill would replace this diverse body of statutory law and render unnecessary any resort to the rules of private international law to determine, in the Commonwealth or in any Territory, the efficacy and validity of a marriage solemnised or a legitimation effected within the Commonwealth and the Territories to which the bill applies, or indeed outside the Commonwealth if the marriage is celebrated under part 4’. ([1960] 27 Hansard House of Representatives 2001. (19 May 1960)

On this view of the original Act as indicated in the Second Reading Speech, which a court may now take into account as a guide to the Acts meaning, (Acts Interpretation Act (Cth) section 15AB(2)(f)) the original Act was clearly designed to cover the field of marriage, leaving no room for State laws on the topic. The proposed law may create just the situation which the original Marriage Act was designed to abolish; marriages in one State not recognised as valid throughout the country. If the original Commonwealth Marriage Act had this intention, the State law would be inconsistent with it and would be invalid for that reason.

On the other hand, it is arguable that regardless of the original intention of the Marriage Act, the 2004 amendment defining marriage as between a man and a woman was designed to make it clear that the Commonwealth was vacating the field of same sex marriage and leaving that to the States. If that was the intention of the amendment, the Marriage Act would still cover the field of heterosexual marriage, preventing State laws and ensuring uniformity with respect to capacity in that field. However, by vacating the field of same sex marriage, it would leave that field vacant for State law, including a law such as the one proposed.

There is nothing in the Second Reading Speech on the 2004 amendment which indicates a Commonwealth desire to vacate the field of same sex marriage to the States. Instead, that speech indicated an intent to maintain a Commonwealth monopoly of the field of marriage. In introducing the bill, the Attorney-General indicated it was designed to do 2 things:
1. to reinforce the traditional basis of the institution of marriage by defining it for Australian law as the union of a man and a woman;
2. to prevent the recognition of same sex marriages entered into in another country as marriages within Australia:

‘The (Marriage) bill is necessary because there is significant community concern about the possible erosion of the institution of marriage. The parliament has an opportunity to act quickly to allay these concerns. The government has consistently reiterated the fundamental importance of the place of marriage in our society. It is a central and fundamental institution. It is vital to the stability of our society and provides the best environment for the raising of children.

The government has decided to take steps to reinforce the basis of this fundamental institution. Currently, the Marriage Act 1961 contains no definition of marriage. It does contain a statement of the legal understanding of marriage in the words that some marriage celebrants must say in solemnising a marriage that: ‘Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’

The government believes that this is the understanding of marriage held by the vast majority of Australians and they should form the formal definition of marriage in the Marriage Act. This bill will achieve that result….

As a result of the amendments contained in this bill, same-sex couples will understand that, if they go overseas to marry, their marriage, even if valid in the country in which it was solemnised, will not be recognised as valid within Australia.’ Hansard House of Representatives 24 June 2004

These statements support the view that the intention was to cover the field by restricting marriage in Australia to a man and a woman, leaving no room for State laws establishing same sex marriages. This interpretation is supported by the addition of section 88EA to the Marriage Act at the same time. This section denies recognition as marriages in Australia to same sex unions solemnised in a foreign country. There would have been little point in denying recognition to these marriages if the legislation was designed to vacate the field of same sex marriages, leaving it open to the States to permit them.

However, it may be arguable that the Marriage Act as amended in 2004 is invalid to the extent that it extends to attempting to define marriage for Australian law as distinct from Commonwealth law as a union of a man and a woman. (Defining it for Australian law rules out State laws on the subject, defining it for Commonwealth law alone does not.) There is no doubt that marriage in 1900, when the Constitution was adopted, was understood as the union of a man and a woman. At that time a law with respect to same sex relationships would have been seen as falling outside the marriage power and invalid. If we, today, must interpret the Constitution as the framers understood it, there is no doubt a general law about same sex marriage, such as a law allowing and regulating it, would fall outside the marriage power.

The High Court has not decided whether terms used in the Constitution such as marriage have the same meaning as in 1900. Some judges argue that the meaning of constitutional terms can evolve over time in light of social change. If this view were adopted, it may be that the term marriage may have evolved include same sex marriage, giving the Commonwealth a general power over such marriages.

There are cases in which the High Court has allowed constitutional terms to evolve. However, for the most part, the cases relate to issues arising from Australia’s evolution from a self governing colony in 1901 to an independent country today. So for example, the United Kingdom is now a foreign country for the purposes of determining whether an MP owes allegiance to a foreign power and is thus precluded from taking his or her seat in parliament, and British nationals are now aliens for the purposes of the Commonwealth’s lawmaking power over aliens.

The interpretation of the marriage power will be a major test of the Court’s attitude towards constitutional interpretation, whether it interprets the Constitution according to how it would have been understood in 1901 or how it would be understood in the light of current social conditions. It will be a very interesting test of the court’s attitudes on these issues, especially as it is possible to portray limiting the power to heterosexual marriage as discriminatory.

However, I do not think that it is necessary to decide these issues to determine whether the 2004 amendment can validly cover the field to rule out State laws on same sex marriage. Commonwealth powers are interpreted broadly as a general rule. Interpreting the marriage power broadly, a law designed to incorporate the traditional understanding of marriage as the union of a man and a woman into Australian law so as to prevent the solemnisation and recognition of same sex marriages can, I think, be seen as a law with respect to heterosexual marriage and hence as within the marriage power, even if that power is limited to heterosexual marriage.

One test for whether a law is within Commonwealth power is to ask whether any one of its purposes establishes a connection with the power. If a purpose of the law establishes that connection, even if it is not the dominant or most obvious purpose, the law will be valid as long as it is adapted and appropriate to that purpose.

A purpose which can be seen as establishing a connection between a law designed to cover the field of marriage so as to limit marriage in Australia to a union between a man and a woman, ruling out same sex unions, is the purpose of reinforcing the nature of a marriage between a man and a woman as a unique relationship. A way of reinforcing the uniqueness of the relationship is by denying any other relationship the status of marriage and by refusing to recognise any other relationships as marriages. A law such as the current one, defining marriage as a union between a man and a woman and intended to cover the field so as to prevent States from recognising any other relationships as marriages is in my opinion, reasonably adapted and appropriate to that purpose. In coming to that decision, as the law stands at the moment, the fact that such a law may be seen by some, even a majority, as unfair and discriminatory is irrelevant. Whether it is good social policy to reinforce marriage between a man and a woman as a unique relationship is also irrelevant. As long as the end is within power, parliament is free to determine policy it wishes to pursue and the means it will use in pursuing that policy.

If as argued the proposed Same-Sex Marriage Act is invalid, there is little point to much of the proposed Same-Sex Marriage (Dissolution and Annulment) Act as there will be no valid same sex marriages to be dissolved or annulled. However, given the definition of marriage in the latter bill, which extends to same sex unions in general and therefore has the potential to extend to same sex marriages whether entered into in Tasmania or in some other jurisdiction, including a foreign country, it is worth considering whether the law can validly give the Tasmanian Supreme Court jurisdiction over matters relating to these marriages, as it purports to do in section 5(3). In my opinion, such a grant of jurisdiction, to the extent that it purports to recognise a same sex marriage as a marriage, which it must do to grant relief in relation to it, is invalid for inconsistency with section 88EA, which states that a same sex marriage solemnised in a foreign country must not be recognised as a marriage in Australia.

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Michael Stokes studied law at the University of Tasmania, qualifying for the LLB with first class honours in 1971. In that year he was awarded the Rhodes Scholarship for Tasmania and completed an M Phil in Politics at Oxford University from 1972-1975. In 1976, he was appointed as Lecturer in the Law School at the University of Tasmania and was promoted to Senior Lecturer in 1991.