So the ACT passed a civil union law. Whether this law and any same-s-x marriage laws introduced in Tasmania can be overturned are a funny mix of politics and constitutional law.
The federal government has the power to overturn the ACT’s civil union law under the constitution. Our constitution gives the federal government the power to make and overturn laws in the ACT and NT.
This is how John Howard overturned the ACT’s last civil union law in 2006. What’s interesting this time is the politics of whether the ALP decides to intervene to overturn the laws of another Labor government, particularly given their party platform is now pro-same-s-x marriage. Definitely one to watch.
If Tasmania were to pass a same-s-x marriage law, it would be slightly more difficult for the federal government to overturn it. That’s because the Tasmanian law would need to be found to be in conflict with the Federal Marriage Act.
This would be based on whether the Federal Marriage Act regulates all marriages or merely opposite-s-x marriages. Howard tried to pre-emptively quash any state laws introducing same-s-x marriage by introducing a definition into the Marriage Act that marriage is between a man and a woman. Whether this means that the act is regulating same-s-x marriage by defining marriage to exclude same-s-x marriage will be a question for the High Court.
In any case, even if a Tasmanian same-s-x marriage law and the federal Marriage Act weren’t in direct conflict, the federal government could pass a new law forbidding same-s-x marriage to create the conflict. Such a conflict would then mean that the Tasmanian law was inoperative.
The Gillard government would be unlikely to do this given the Labor Party platform supports same-s-x marriage (although, in the current political climate anything is possible). If the Liberals were elected, introducing a law to render the Tasmanian law inoperative would probably be one of their first roll backs of fundamental rights. Fortunately though, such a law could not be retrospective so marriages would not suddenly be legally void.
The only way a Tasmanian law for gay marriage could be found to be unamendable by the federal government would be if the federal government only had a power to legislate for opposite-s-x marriage.
The ACT Liberal Senator Gary Humphries used this argument against the federal government introducing gay marriage in the Senate inquiry into marriage equality. For this to be the case, the High Court would have to find that when the federal government was given a “marriage power” in 1901 it was only to regulate what was conceived of as marriage at the time. In other words, opposite-s-x marriage.
If the High Court endorsed this interpretation of the federal government’s marriage power, it would fall to the states to regulate same-s-x marriage. This is because while the federal government must have an enumerated head of power under the constitution to make a law, the states have broad plenary power to legislate for anything and everything.
The only limitation to this is that when a state law and federal law are in conflict, the state law is ineffective.
*Hannah Lewis has just returned from having a civil union with her partner of four years in Germany. She is currently completing a masters of law (juris doctor) at Monash University and has a particular interest in the relationship between the constitution and politics. She also works part-time in community engagement.
Thanks for the overview Hannah.
At the risk of being labelled a pedant (ok, whatever, label away!), I have some objections to your arguements though.
The Howard Government overturned the previous ACT laws by executive action, not parliamentary action. It relied upon section 35 of the ACT’s Self-Government Act to do so – which allows the Governor-General, on the advice of the Federal government, to ‘disallow’ an ACT law with the stroke of a pen. This provision was repealed earlier this year – which is probably why the ACT Govt has gone ahead with the recent laws.
Of course, the Federal Parliament retains the right to legislate FOR the territories under section 122 of the Constitution. This provision was used to amend the ACT and NT Self-Governing Acts to prohibit the elected assemblies in those jurisdictions from passing laws allowing euthanasia. So the Federal Parliament could, if it wanted, pass a law to add “marriage – whether between a man and woman or between two people” to the category of matters that ACT assembly cannot pass laws on (see here: http://www.austlii.edu.au/au/legis/cth/consol_act/acta1988482/s23.html). This would ultimately have the same effect as the Howard took in 2006, but would be open to greater parliamentary and public scrutiny.
Second, and I know this is pedantry, the Federal Government cannot ‘invalidate’ a State law. Only a Court (the High Court realistically) can invalidate a law on the grounds that it is inconsistent with the Constitution. So not only would the Feds have to introduce a conflicting law, but they would then have to challenge the state law in court as inconsistent under section 109. Same result, but different mechanism and there would always be the risk that the High Court would invalidate the Federal Law (or read it down) on the basis that it was not within the powers in section 51 of the Constitution.
Finally, I am not as confident as you that ‘Fortunately though, such a [federal] law could not be retrospective so marriages would not suddenly be legally void.’ There is no prohibition on the Federal Government passing retrospective law provided it does not usurp the juridical power of the Commonwealth. There have been several instances where the Commonwealth has legislated retrospectively in the past few years, including introducing new provisions ‘correcting’ the definition of the crime of bringing asylum seekers to Australia by boat.
And even if the Federal Government could not introduce a law that overturned previously solemnized gay marriages (and I believe it could) it could simply achieve the desired outcome by amending all other legislation so that Government bodies, welfare agencies etc… could refuse to recognise evidence of the marriage. Same [aweful] result, different mechanism.
I don’t think the Federal Government can overturn territory laws so easily anymore. I think a Greens bill last November meant that they need both houses of Federal Parliament to do overturn territory laws now. See: http://www.theage.com.au/national/law-to-give-nt-act-stronger-powers-20111101-1mtx0.html
Hi Huw and Tim,
Thanks for the comments.
Yes, you’re both right that it is now harder for the Federal government to overturn the ACT legislation. But, it’s not impossible particularly if it were to come to a conscience vote – this is why it’s interesting. Also, there’s still s122 of the Constitution. If people want more info on the changes, they should check out: http://www.theage.com.au/national/law-to-give-nt-act-stronger-powers-20111101-1mtx0.html
@Tim – my authority that such a law couldn’t be retrospective is University of Wollongong v Metwally.
But you’re right, the Federal government could still make it so that even if the marriages weren’t void, Government bodies wouldn’t recognise it. Although, there could be a potential issue then with anti-discrimination legislation and whether any such laws repealed the application of anti-discrimination laws to same-sex relationships. What do you think the outcome would be?
As to invalidating the law, I’m aware of the process by which it happens. I’ve tried to keep the article topline so that people who aren’t lawyers can enjoy it too. Hopefully though people who want more details can read your post.
Hannah
Hannah, as someone with no limited knowledge of constitutional law, I enjoyed how your article clearly and concisely presented an overview on the topic. Interesting, it has given me some extra depth to my knowledge to the the same- sex marraige issue and possible outcomes.
Thank you
Good to have a legal opinion weigh in. The whole gay marriage debate can be so weighed down by Christian opining and emotional pleas – nice to see an article broach the issue with a common sense no-nonsense approach. Would be good if there was more of this in the whole gay marriage debate!