Family Law Research Paper

ily Tasmania has introduced legislation before Parliament to legitimise same-sex marriage, and New South Wales has announced it will introduce similar legislation based upon the Same-Sex Marriage Act 2012 (Tas) (‘SSM Act) before the end of 2012. This paper will discuss the merits of a High Court constitutional challenge to the validity of State legislation.

The Commonwealth of Australia Constitution Act 1901 (Cth) (‘Constitution’) sets out in section 51(xxi) that the Federal Parliament has the power to make laws for the peace, order and good Government of the Commonwealth in respect to marriage. This power is though, a concurrent power not exclusive, and until 1961 the States individually legislated with respect to marriage, and divorce.

It is argued that legislating for same-sex marriage under State law may be invalid due to the Commonwealth provision in the Marriage Act 1961 (Cth)(‘Marriage Act’), that marriage be between a man and a woman, and that would lead to inconsistency between Commonwealth and State laws, whereby where any inconsistency results the Commonwealth law prevails.

For s109 of the Australian Constitution to come into effect, there must be a valid State law and a valid Commonwealth law. The effect is that the State law yields to the Commonwealth law, but remains a valid law of the said Parliament. Practically, if then the prevailing Commonwealth Law ceases to operate, the State law automatically revives. The test for invalidity under s109 is a three fold test of inconsistency, two being direct and one indirect, though the test for standing is one which hold the greater uncertainty.

Standing - To bring a constitutional challenge to the High Court under s75 of the Constitution, a party must have standing, that is, a real interest in the matter; a person aggrieved. There would seem unlikely that any party apart from the Commonwealth would be granted standing, as the SSM Act only affects same-sex persons who have been demanding equal marriage rights for the last decade. A party or organisation could seek the fiat of the Attorney General to bring a relator action. This would mean that the person or organisation stands in the place of the Commonwealth’s standing to bring the matter. In Williams the Court put the questions of standing aside provided the Commonwealth intervened in the matter in support of the plaintiffs.

Direct Inconsistency - The first test under direct inconsistency is that it is impossible to obey both laws simultaneously,meaning that it is an impossibility to abide by both laws at the same time. There is no invalidity under this test as the SSM Act provides legislation only for same-sex marriage, not for different sex marriages, which are governed by the Marriage Act. A same-sex couple marrying under the SSM Act cannot marry under the Marriage Act and therefore there is no direct inconsistency, as the Marriage Act does not apply to them, nor are different sex couples able to marry under the SSM Act.

The second test of direct inconsistency is that of a conflict of rights, privileges and entitlements, that is, if one law confers a right, which the other purports to take away. It could be argued that there is a direct inconsistency in this regard as in Tasmania a same-sex couple would be able to marry, but that marriage not be valid under Commonwealth legislation, however, the Marriage Act doesn’t legislate against same-sex persons, it only legislates the conditions of different sex marriages, therefore both laws can be valid in an operational sense.

Indirect inconsistency - There are two questions that need to be addressed in this area, firstly to identify if the Commonwealth intended the law to be exclusive, that is, the only law on the subject, or supplementary or cumulative with other laws, more commonly known as covering the field; and secondly, whether the State law does in fact operate in the same field as the Commonwealth.
The Commonwealth is limited in its power to make laws only on the subjects listed in the Constitution, whereas the States have full legislative power to make laws on any subject not barred to them by the Constitution. If the interpretation by the High Court is that the Constitution permits the Commonwealth to make laws in relation to traditional different sex marriage, then it seems logical that the States are therefore permitted to makes laws regarding same-sex marriage. Alternatively, if found that the Constitution allows for laws to be made with regard to either different sex or same-sex marriages, then inconsistency would need to be made out.

It could be argued that the Commonwealth did intend to cover the field when it amended the Marriage Act in 2004 to specify that marriage be between a man and a woman, to exclude same-sex unions, and in particular to prohibit recognition of same-sex marriages performed in foreign countries,it does not have any provisions regarding the recognition under State law. The Marriage Act does make it clear that the Act shall not be taken to exclude the operation of any law of a State or Territory, regarding the registration of marriages, and as such, this would seem to place in doubt the intention of the Commonwealth to cover the field. The fact that the Marriage Act does not specifically identify or exclude same-sex persons in the prohibited relationships provision on grounds for voiding a marriage,also lends considerable weight that the field is not covered, along with the omission of any language purporting to bind the States.

That the SSM Act is only operating in the State of Tasmania, and only addresses same-sex persons, whereas the Marriage Act does not apply to same-sex persons, the second limb of the covering the field test seems not to have been met. The common law tests for the inconsistency provisions set out in s109 of the Constitution are implemented in 3 steps, which overlap. A finding of no inconsistency depends on all three tests, however a finding of an inconsistency may depends on more than one test.

Express provisions declaring its intention not to cover the field, whereby it is clear that related State laws operate along side the Commonwealth laws,is known as clearing the field. As mentioned above, it seems to be clear by the language used, that the Commonwealth did not intend to cover the field.

Marriages solemnised under the SSM Act legislation would not be recognised in other States or Territories, unless those States or Territories, enacted similar legislation, specifically enabling that recognition. However, the SSM Act provides for the recognition of same-sex marriages solemnised in other Australian States and Territories. There would not be automatic recognition as a married spouse under any Commonwealth legislation, however the current defacto recognition of same-sex couples would still be in effect.

It is very likely that there will be a High Court challenge to the validity of the Tasmanian SSM Act, or indeed other State or Territory legislation that is finally enacted. I have confidence, however, that it is unlikely that the legislation based in its current form, would be deemed invalid due to inconsistency under s109 of the Constitution as both Acts are operating in a different fields. My personal view is that mounting a High Court challenge on this or similar legislation is a complete waste of time and taxpayer’s money. To oppose legislation enacting equality, that is overwhelmingly supported by the Australian population, but blocked by ignorant bigoted politicians trying to ensure their re-election, goes beyond wasteful and should not be permitted.

--------------------------------------------
[ 1 ]. Same-Sex Marriage Act 2012 (Tas).
[ 2 ]. Toby Mann and Sophie Tarr, ‘NSW same-sex marriage bill likely to pass’, The Australian (online), 19 September 2012 http://www.theaustralian.com.au/news/breaking-news/nsw-to-draft-same-sex-marriage-bill/story-fn3dxiwe-1226477000596
[ 3 ]. Commonwealth of Australia Constitution Act 1901 (Cth)
[ 4 ]. Ibid s51 (xxi).
[ 5 ]. Marriage Act 1961 (Cth)
[ 6 ]. Ibid s5.
[ 7 ]. Commonwealth of Australia Constitution Act 1901 (Cth) s109.
[ 8 ]. Carter v Egg and Egg Pulp Marketing Board (1942) 66 CLR 557.
[ 9 ]. Commonwealth of Australia Constitution Act 1901 (Cth)
[ 10 ]. Williams v Commonwealth of Australia [2012] HCA 23.
[ 11 ]. R v Licensing Court of Brisbane (1920) 28 CLR 23.
[ 12 ]. Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466.
[ 13 ]. Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151.
[ 14 ]. Commonwealth of Australia Constitution Act 1901 (Cth) s108.
[ 15 ]. Marriage Act 1961 (Cth) s88EA.
[ 16 ]. Ibid s6.
[ 17 ]. Ibid s23B (2).
[ 18 ]. Ex parte McLean (1930) 38 CLR 472.
[ 19 ]. Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47.
[ 20 ]. Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237.
[ 21 ]. R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545.
[ 22 ]. Marriage Act 1961 (Cth) s6.
[ 23 ]. Same-Sex Marriage Act 2012 (Tas) s75.