10:01am Saturday 04 July 2020

Same-sex marriage laws need Commonwealth and state backing

Dr Bede Harris
Dr Bede Harris, a senior law lecturer with CSU’s School of Business, questions who has the legislative authority regarding same-sex marriage.
“The Commonwealth Constitution gives the federal parliament power to legislate with respect to ‘marriage’. This is how the former Howard government – supported by Labor – amended the Marriage Act to define marriage as ‘a union between a man and a woman’,” Dr Harris says.
“However, the federal parliament cannot define what terms in the Constitution mean – only the High Court can do that. If the federal parliament could define what ‘corporations’, ‘lighthouses’, ‘taxation’, or any other term conferring power on it meant, then the parliament could expand its powers at will. So the meaning of the word ‘marriage’ cannot be certain until the Australian High Court pronounces on it.”
Dr Harris asserts that this presents a problem for the Commonwealth and the states, because there are a number of possible constitutional scenarios that could arise, depending on who takes the initiative to change the law.
“Firstly, we can have the Commonwealth amend the Marriage Act to allow same-sex marriage, and the law’s validity is then challenged in the High Court. This allows the High Court to define ‘marriage’ to include same-sex couples, or not. If the new definition of ‘marriage’ includes same-sex unions, then the definition would not conflict with the proposed changes to the Marriage Act. If the definition remains as only between a man and a woman, then the states could enact legislation, as long as they did not mention the word ‘marriage’ and so will not conflict with existing federal law.
“But if the Commonwealth does not change the Marriage Act, and leaves the Howard-era definition of marriage, then a State can enact a law permitting same-sex unions, while avoiding the word ‘marriage’. The Commonwealth could then challenge the state law as it was inconsistent with the Marriage Act. Interestingly, no matter what the High Court found on the validity of the Howard definition of marriage, a state law would be likely to be upheld.
“If the High Court found that ‘marriage’ means only a union between a man and a woman, and that the Howard amendments were valid, then the state law on same-sex unions that does not mention the word ‘marriage’ would be valid, because it would be on a different topic than that covered by the Marriage Act.
“But if the High Court found that the current Howard definition in the Marriage Act was invalid, then a state law allowing same-sex unions is valid, whether it was called ‘marriage’ or not. In this case, only the High Court could prohibit the state from legislating on marriage or same-sex unions. This very conservative approach is unlikely.”
Dr Harris believes these constitutional uncertainties make it risky for the Commonwealth or states to move first, as any legal change is bound to give rise to a constitutional challenge.

“The Commonwealth and state governments need the political courage to jointly affect a reform that is long overdue and has public support.o High Court  A cooperative approach is needed where the states explicitly give power to the Commonwealth to enact a law permitting same-sex marriage, using the referral mechanism contained in the Constitution. Then the Commonwealth can enact the law without trouble, as the High Court would either find that the Commonwealth had the power already, or that a deficiency in power was cured by the referral.”


Media Officer : Wes Ward
Telephone : 02 6051 9906

Media Note:

For interviews with Dr Bede Harris for comment on the same-sex marriage law, contact CSU Media. Dr Harris is a Senior Lecturer in Law at CSU based in Albury-Wodonga and the author of A New Constitution for Australia.

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