MARRIAGE LAWS: by Augusto ZimmermannNews Weekly
State same-sex marriage laws are unconstitutional
, October 13, 2012
The Tasmanian Labor government, led by Premier Lara Giddings, has long been pushing for legislation for state-based same-sex marriage. The problem is that any such legislation would be subject to disallowance by the High Court were a challenge to be mounted.
The Australian constitution explicitly provides the Commonwealth parliament with the authority to “make laws for the peace, order and good government of the Commonwealth with respect to … marriage”.
The Commonwealth passed the Marriage Amendment Act 2004, which amended the Marriage Act 1961 in several substantial respects. An amendment was inserted into Section 5(1), determining that marriage, to be lawful in Australia, has to be solemnised in accordance with Section 5(1).
When the federal Marriage Act was amended, the legislators’ intention was to provide a standardised definition of marriage for the whole nation. Section 109 of the constitution resolves any conflict between federal and state laws in favour of the former, thus confirming the supremacy of the Commonwealth to regulate all matters related to marriage, children of the marriage and their welfare, matrimonial property, etc.
As long as the Commonwealth defines marriage as the union between one man and one woman, any state law providing to the contrary will automatically fall outside the scope of the state power.
Importantly, Section 6 of the Commonwealth Marriage Act preserves the validity of state and territory laws relating only to the registration of marriage, which obviously signalises the intention of the federal law to cover the field of all aspects of marriage besides mere registration.
In addition, Section 88E of the Commonwealth Act states that same-sex marriages conducted overseas are not recognised as marriages “in Australia”. It is significant that the law uses the word “Australia”, rather than the phrase “under the Commonwealth law”, which is therefore another clear indication that the Commonwealth intended for its law to cover the field, to be the sole law on the topic in Australia.
Given that Section 88EA explicitly declares that the field is to be confined to the Commonwealth’s definition of marriage, it is wrong to suppose that the field is confined only to “opposite-sex marriage”, because the federal legislator wanted to make it clear that marriage anywhere in the country means the union between a man and a woman.
On the other hand, one could argue that no inconsistency arises if both federal and state laws were capable of coexisting and the former did not enable people to be married under both laws. But surely the interpretation of the intended scope and meaning of the federal law cannot turn on the contingency of what a state law might happen to say.
Thus, what if a state law authorised same-sex marriage but it did not contain a non-bigamy clause? Would that simply imply that people could be married under the federal law and subsequently married under the state law? Such a result would be contrary to the intent of sections 23B and 94 of the Commonwealth Act, which is intended to prevent bigamy of all kinds, however marriage is defined.
Of course, the matter can only arise on the assumption that the Commonwealth Act is limited to the field of traditional marriage. And yet, the Commonwealth Act does effectively intend to cover the field, which is premised on the determination that every marriage in Australia, of all possible kinds, must be defined solely and exhaustively by the Commonwealth Act.
In conclusion, we can say the following:
• The Commonwealth Parliament has the power to pass any law dealing with the subject-matter of marriage.
• Commonwealth law supersedes contradictory state or territory law.
• Under the Marriage Amendment Act 2004, the Australian states have no power to legislate for same-sex marriages.
• If a state or territory passes a same-sex marriage law, such an act would be struck down by the High Court as inconsistent with the Commonwealth legislation.
Augusto Zimmermann, LLB, LLM, PhD (Monash University), is senior lecturer in constitutional law and associate dean (research) at Murdoch University’s school of law. He is also president of the Western Australian Legal Theory Association (WALTA) and editor of The Western Australian Jurist.