Williams comments that
Marriage equality conjures up a range of passionate arguments and strongly held convictions around fairness, equality, community values and religious relief. This article examines the myths around this issue, and examine what might happen if Tasmania enacted a same-sex marriage law, and in particular, the possible challenges to such law in the High Court.In essence, the national Parliament can override statutes made by the ACT and Northern Territory. The significance of the current Bill in the ACT House of Assembly may accordingly be as a model - and spur - for development of legislation in the states.
Under s 51(xxi) of the Australian Constitution the national parliament has power to make laws with respect to ‘marriage’. There is disagreement about the interpretation of that term, in particularly whether it encompasses the marriage of same-sex couples. The Constitution does not provide a definition of marriage, implicitly because the drafters of the Constitution assumed that marriage was for life - other than in exceptional circumstances - and that it was restricted to heterosexual relationships.
In my dissertation I have noted that Hyde v Hyde & Woodmansee (1866) All ER for example characterised marriage as "the voluntary union for life of one man and one woman, to the exclusion of all others". That characterisation by Lord Penzance in Hyde was explicitly embraced in s 5 of the Marriage Act 1961 (Cth) as amended under as previous Coalition Government in 2004, ie marriage "means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life".
State law regarding marriage is valid except to the extent of inconsistency with national law under the Constitution (s 109), with the High Court determining that inconsistency and finding for the Commonwealth to the extent that the state enactment was inconsistent with that of the Commonwealth. What is the meaning of marriage in the Constitution? One argument has been that 'marriage' has to be construed in terms of its meaning for the drafters of the Constitution, in other words Penzance's characterisation. A state enactment purporting to give to same-sex couples the legal status of being ‘married’ for the purposes of law across Australia would accordingly be inconsistent - given that it supposedly provided a legal status contrary to the civil disability enshrined in the national Marriage Act and the underlying Constitutional head of power. The enactment would also not be inoperative in other state/territory jurisdictions that did not recognise same-sex marriage.
A consequence would be that the people would not be legally ‘married’ outside the particular jurisdiction, with s 48 of the Commonwealth Marriage Act indicating that marriages solemnised in Australia otherwise than as stipulated are not valid. (Section 6 of that Act concerns ‘marriages’ as defined by the Act and deals with registration - rather than the solemnisation - of marriages in relation to state law. Section 88EA of the Act might be amended by the Abbott Government to address the potential loophole identified by Williams at p 130 of his article.)
The Commonwealth statute might be held to 'cover the field', excluding state legislation.
Would the High Court adopt an originalist approach to interpretation of 'marriage' if a state sought to recognise same-sex relationships beyond the current 'marriage-lite' status implicit in civil unions?
In Re Wakim; Ex parte McNally (1999) 198 CLR 511 McHugh J commented that
many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered. Examples can be found in the powers conferred on the Parliament of the Commonwealth to make laws with respect to "trade and commerce with other countries, and among the States", "trading or financial corporations formed within the limits of the Commonwealth", "external affairs" and "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State". In these and other cases, the test is simply: what do these words mean to us as late 20th century Australians? Such an approach accords with the recognition of Isaacs J in The Commonwealth v Kreglinger & Fernau Ltd and Bardsley that our Constitution was "made, not for a single occasion, but for the continued life and progress of the community".
The level of abstraction for some terms of the Constitution is, however, much harder to identify than that of those set out above. Thus, in 1901 "marriage" was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably "marriage" now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.
But even if we continue to hold, as Windeyer J asserted in Ex parte Professional Engineers' Association, that the meanings of the words in the Constitution do not change as language changes, the meanings that we now place on the Constitution may not entirely coincide with the meanings placed on it by those who drafted, approved or enacted that document. That is because a Constitution contains implications, inferences and propositions as well as words, phrases and clauses. Experience derived from the events that have occurred since its enactment may enable us to see more in the combination of particular words, phrases or clauses or in the document as a whole than would have occurred to those who participated in the making of the Constitution. Thus we now see, although it was not seen in 1901, that freedom of communication on matters of government and politics is an indispensable incident of the system of government created by the Constitution and that the law of defamation must not be inconsistent with that freedom. Similarly, we now see, although it was probably not seen in 1901, that "industrial disputes" can be manifested by unions serving logs of claim on employers who reject them.
Furthermore, the indeterminate nature of the words "with respect to" in ss 51 and 52 may result in subjects now falling within the scope of the Commonwealth power although most people in 1901 would have denied that the Commonwealth had power in respect of such subjects. For example, by reason of the present connection of the legal profession with almost every aspect of trade and commerce, taxation, trading and financial corporations, banking, insurance, copyrights, patents, bankruptcy, insolvency and matrimonial causes, the Parliament of the Commonwealth may now have regulatory powers over the profession that would have been regarded as unthinkable in 1901.The Marriage Equality Bill 2013 (ACT) doesn't - to the apparent surprise of one journalist who has contacted me - purport to allow marriage with non-human animals, marriage with minors, marriage with siblings or polygamy. (Australians have of course frequently eschewed voluntary union between two people to the exclusion of others for life, embracing the notion of serial monogamy.)