MARRIAGE LAW by Augusto Zimmermann and Lorraine FinlayNews Weekly
Can state parliaments legislate for same-sex marriage?
, December 6, 2014
Western Australia is about to become the focal point of the same-sex marriage debate in Australia, with the Same-Sex Marriage Bill 2013 potentially due for debate in the WA Legislative Council before the end of the year. This was introduced in December 2013 as a Private Member’s Bill by Greens MLC, the Hon. Lynn MacLaren.
At the time of its introduction, questions were raised about the constitutionality of such a Bill. Indeed, the question of same-sex marriage has been described as a “pending constitutional battlefield”.
Professor George Williams AO
Professor George Williams AO was recently in Western Australia to address this very issue. He expressed the view that state parliaments can pass legislation permitting same-sex marriage that will survive constitutional challenge in the High Court of Australia. We would disagree with this, and conclude that any state legislation providing for same-sex marriages faces serious constitutional hurdles.
In his recent lecture at WA’s Murdoch University, Professor Williams argued both that the constitutional power over marriage granted to the Commonwealth Parliament, under section 51(xxi) Australian Constitution, is a power shared concurrently with the states and that the plenary legislative power of the states would theoretically allow them to legislate for same-sex marriage.
This is undoubtedly correct. Under our constitutional arrangements both the Commonwealth and the states have shared legislative powers in relation to the question of marriage. This is illustrated by the fact that marriage was regulated by the states up until the introduction by the Commonwealth of the Marriage Act 1961.
This is not, however, the end of the legal analysis. The key question confronting any state-initiated same-sex marriage legislation is whether it could survive a constitutional challenge under s. 109 of the Australian Constitution. It is on this point that we disagree with the conclusion reached by Professor Williams.
While theoretically a state could legislate for same-sex marriage, any attempt to do so would raise significant questions under section 109, which provides that where there is an inconsistency between Commonwealth and state laws, the state law “shall, to the extent of the inconsistency, be invalid”.
Given that the Commonwealth has defined marriage under s 5(1) Marriage Act 1961 (Commonwealth) as meaning “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”, any attempt by a state parliament to expand the concept of marriage to include same-sex couples will likely be invalid under s. 109.
The inconsistency test that is the most relevant here is the “cover the field” test. This effectively provides that a state law will be necessarily inconsistent with a Commonwealth law that was intended to be an exhaustive statement of the law in that particular area.
In its recent decision, overturning the 2013 same-sex marriage legislation introduced in the Australian Capital Territory, the High Court of Australia unanimously declared that the Marriage Act 1961 (Commonwealth) provides “a comprehensive and exhaustive statement of the law with respect to the creation and recognition of the legal status of marriage”. Following this decision it is clear that the Commonwealth definition of marriage “covers the field”. Any attempt to introduce an alternative form of marriage at the state level will therefore be rendered inoperative under s. 109.
The High Court in that decision appeared to reject the argument that the “field” being covered by the Commonwealth was limited to heterosexual marriage, which would have left the way open for the states to legislate consistently in the field of same-sex marriage. The High Court justices found that the 2004 amendments to the Commonwealth Marriage Act “necessarily contain the implicit negative proposition that the kind of marriage provided for by the Act is the only kind of marriage that may be formed or recognised in Australia”. As a consequence, the question of same-sex marriage is now “a matter for the federal Parliament”.
That any question relating to the institution of marriage is now reserved for the Commonwealth parliament appears to have been implicitly recognised by supporters of same-sex marriage. For example, Professor Williams noted in his recent lecture that any state law would need to be drafted so as to avoid any overlap with federal legislation by setting up a separate category of same-sex “marriage” that was distinct in status from federal “marriage”. That is, state same-sex marriage legislation will only be constitutionally valid if it introduces a form of marriage that isn’t really marriage.
This leaves advocates of the WA same-sex marriage legislation in an untenable position. If what they are arguing for is truly marriage equality, then the legislation will likely be declared inoperative under s. 109. If what they are arguing for is a separate and distinct institution that is not really marriage, then they are being deliberately misleading by describing it as marriage, and are undermining the institution of marriage by doing so.
It seems that what the WA Same-Sex Marriage Bill 2013 is trying to do is to establish marriage equality in practice, while disguising it as something else, so as to avoid the potential constitutional problems. The claim that “same-sex marriage” is not really marriage is a form of doublespeak that would not be out of place in George Orwell’s novel, Nineteen Eighty-Four. An examination of the proposed legislation reveals that it attempts to create an institution that can only be described as marriage, both in name and substance.
To begin with, the word “marriage” appears over 300 times in the Bill. It appears in the title, and the Bill itself states that it is intended to provide for “same-sex marriages between adults”. Trying to claim that you are establishing an institution distinct from “marriage” is difficult when you consistently refer to that institution as a type of “marriage”. The substantive provisions of the Bill provide further evidence that the form of “same-sex marriage” proposed at the state level is inextricably linked to marriage at the Commonwealth level. To give just a few examples:
• One of the eligibility requirements for same-sex marriage is that “neither person is married under Commonwealth law”.
• Only a person registered as a Commonwealth marriage celebrant may apply to be registered as a same-sex marriage celebrant.
• The form of ceremony (including the very words to be used in the ceremony) is described in identical terms at both levels.
• The notice and declaration requirements for the solemnisation of both forms of marriage are substantially identical.
• The grounds on which both forms of marriage are void are substantially identical.
• The offence of bigamy appears to encompass both forms of marriage.
• The same terminology of “husband”, “wife” and “marriage” is to be applied when dealing with same-sex marriages.
• Consequential legislative amendments will expressly define “marriage” as including both heterosexual and same-sex marriages.
During the Second Reading Speech of this legislation, it was claimed that the Bill “sets up a form of same-sex marriage at the state level that is conceptually distinct from marriage provided for by the federal Marriage Act 1961”.
An examination of the Bill reveals that this is simply not true. In both style and substance the Same-Sex Marriage Bill 2013 (WA) attempts to expand the existing institution of marriage to include same-sex marriages. The High Court has stated that this is a question to be left to the federal Parliament.
As a result, it is likely that the Same-Sex Marriage Bill 2013 (WA), if passed, will be highly vulnerable to a successful constitutional challenge.
Augusto Zimmermann, LLB, LLM, PhD (Monash), is a senior lecturer in legal theory and constitutional law in the School of Law at Murdoch University, Western Australia. He is also a Commissioner with the Law Reform Commission of WA.
Lorraine Finlay, BA (UWA), LLB (UWA), LLM (NUS), LLM (NYU), is a lecturer in constitutional law and international human rights in the School of Law at Murdoch University.
 Sarah Joseph, “Same-sex marriage is a pending constitutional battlefield”, The Conversation, August 6, 2012.
 George Williams, “Exploring the constitutionality of the Same-Sex Marriage Bill 2013”, a public lecture delivered at the Murdoch University School of Law, October 7, 2014.
 Noting that, under s. 109, an inconsistent state law is actually rendered inoperative for so long as the inconsistency remains: see Carter v Eggand Egg Pulp Marketing Board(1942) 66 CLR 557, 573 (Latham CJ).
 Clyde Engineering CoLtdvCowburn(1926) 37 CLR 466 (Isaacs J); Victoria v Commonwealth(The “Kakariki”)(1937) 58 CLR 618 (Dixon J); New South Wales v Commonwealth(“Work Choices Case”)(2006) 229 CLR 1.
 The Commonwealth v Australian Capital Territory HCA 55, .
 See also Bret Walker SC, Chris Young and Perry Herzfeld, Memorandum of Advice:In the Matter of The Same-Sex Marriage Bill 2012(Tas)(October 11, 2013), -; George Williams, “Gay marriage is now only a matter of political will”, Sydney Morning Herald, December 17, 2013.
 Section 5(d) Same-Sex Marriage Bill 2013(WA).
 Sections 21 & 22 Same-Sex Marriage Bill 2013(WA).
 Compare s. 45 Marriage Act 1961(Cth) and s. 14 Same-Sex Marriage Bill 2013(WA).
 Compare s. 42 Marriage Act 1961(Cth) and s. 10 Same-Sex Marriage Bill 2013(WA).
 Compare ss. 23 and 23B Marriage Act 1961(Cth) and s. 6 Same-Sex Marriage Bill 2013(WA).
 Section 19(1) Same-Sex Marriage Bill 2013(WA).
 Section 47 Same-Sex Marriage Bill 2013(WA).
 Section 62 Same-Sex Marriage Bill 2013(WA).
 The Hon. Lynn MacLaren MLC, “Same-Sex Marriage Bill 2014 (Second Reading Speech)”, Hansard: Legislative Council (Western Australia), December 12, 2013, pp. 7710-7711.