NATIONAL AFFAIRS: by Peter WestmoreNews Weekly
'Same-sex marriage' would require change to Constitution
, August 31, 2013
A leading Australian constitutional lawyer, Dr Augusto Zimmermann, has questioned whether amendment to the Commonwealth Marriage Act to permit “same-sex marriage” would be constitutional, and said that such a change could only be adopted through a constitutional amendment.
Dr Augusto Zimmermann
Dr Zimmermann was speaking at the Victorian Parliament House, during National Marriage Day celebrations on August 13.
Brazilian-born Dr Zimmermann is an internationally-recognised legal scholar who teaches at Western Australia’s Murdoch University School of Law, where he currently is senior lecturer in law as well as associate dean for research and director of postgraduate studies.
He was appointed to the WA Law Reform Commission in June 2012.
Among other things, Dr Zimmermann is the founder and president of the Western Australian Legal Theory Association (WALTA), the founder and editor of the Western Australian Jurist, a “blind” peer-review law journal published from Murdoch Law School, and a vice-president of the prestigious Australian Society of Legal Philosophy.
He said that since the Australian Constitution authorises the Commonwealth Parliament to regulate and protect marriage, there is no constitutional impediment for it to introduce legislation which prohibits same-sex marriage.
“It is undeniably within the limits of federal parliament to create law which provides for the traditional definition of marriage,” he said.
However, he suggested that to amend the Act to permit “same-sex marriage” could be unconstitutional.
He said, “While there are several competing theories regarding constitutional interpretation, … [a]ccording to the ‘orthodox rules’ of Australian constitutional interpretation, which were established and traditionally upheld by the High Court, the meaning to be given to a term is that which it had at the date of the Constitution, in 1901.”
Dr Zimmermann cited a number of High Court judgments, as well as leading constitutionalists, in support of this interpretation.
At the time the Constitution was drafted, he said, the definition of marriage was that enunciated by Lord Penzance in 1866: “The voluntary union for life between one man and one women, to the exclusion of all others.”
He quoted Professor Geoffrey Lindell, who once observed: “At the time of Federation the meaning of the term ‘marriage’ most commonly acknowledged was that contained in the cases which refused to recognise foreign polygamous marriage because such unions did not satisfy the traditional meaning of marriage now explicitly embodied in the Marriage Act 1961 (Cth).
“Not surprisingly this will make it difficult for the Court to accept that same-sex marriages now come within the meaning of the term ‘marriage’ in s51(xxi) of the Commonwealth Constitution — a view that has already attracted some judicial support.”
Dr Zimmermann said that this was not the end of the matter, because the authors of the Constitution envisaged that it could be amended, and made provision for how it was to be amended.
“They provided a mechanism in section 128 to ensure that any change to the powers set out in the Constitution should be subject to the will of the Australian people, not the mere convenience of Parliament from time to time.”
He acknowledged that some others, including Professor George Williams, had argued that the states could legalise same-sex marriage because the field of federal law is not “marriage” in general, but only “opposite-sex marriage”.
However, he explained: “The argument by Professor Williams is unconvincing for a couple of reasons.
“Firstly, as Professor [Jeffrey] Goldsworthy correctly points out, ‘[t]he purpose of granting power to the Commonwealth Parliament to legislate with respect to marriage was to make possible uniform national regulation of a vitally important legal relationship that underpins family life, child-rearing, and therefore social welfare throughout the nation’.
“Indeed, Quick and Garran [authors of the standard commentary on the Constitution] commented that paragraphs (xxi) and (xxii) in section 51 were conceived out of a ‘sense of desirability of uniform laws of marriage and divorce’.”
He said that the primary goal was to enable the Commonwealth Parliament to abolish conflicting state laws, and to establish uniformity of legislation on subjects of such vital importance as marriage and divorce.
This had been achieved through the Marriage Act (1961), and the Marriage Amendment Act (2004), the latter of which included the definition of marriage as the union of one man and one woman.
Dr Zimmermann concluded, “[T]hose who support traditional marriage may well contend that same-sex marriage could only be legislated by means of constitutional amendment, and pursuant to section 128 — popular referendum.”
A copy of the full version of Dr Augusto Zimmermann’s National Marriage Day speech is available here.