The Commonwealth Government could get itself into a constitutional bind over same-sex unions, if the attitude it displayed last week is any guide.
We have to accept that the Commonwealth can do what it likes in the ACT. It can over-ride any legislation passed by the ACT Legislative Assembly. This is because the Constitution gives the Commonwealth power to make laws with respect to the Territories.
So Chief Minister Jon Stanhope’s same-sex union legislation is vulnerable to Commonwealth veto. His plan to provide for marriage celebrants registered by the Commonwealth to officiate at these ceremonies is especially vulnerable.
But if similar legislation were passed by a state, the picture would be different. And this is very likely. Tasmania has already put in place something like the ACT’s proposal.
I am not arguing whether same-sex unions or marriages are a “good” or “bad” things here. I am just looking at the constitutional position.
Attorney-General Philip Ruddock and Prime Minister John Howard say that marriage between a man and woman has a special place in Australian society and they are not going to see it undermined by same-sex civil unions of the sort proposed in the ACT or anywhere else in Australia, for example, if a state passed a law allowing same-sex civil unions.
To over-turn such a law they could not rely on the territories power. They would have to find some other head of power. Most of those are listed in Section 51 of the Constitution. The only one even vaguely connected is the power to make laws with respect to “marriage”.
And here is the logical bind. The Commonwealth would have to argue that its law prohibiting same-sex unions is a law “with respect to marriage” — they very thing that Ruddock and Howard argue that same-sex civil unions are not. So in order to validly ban same-sex civil unions, they first have to acknowledge they are equivalent to marriages to bring them under the ambit of the marriage power.
The Commonwealth would have to convince the High Court that same-sex civil unions are in fact marriages and that therefore a Commonwealth law stripping those unions of any rights or obligations is in fact a law with respect to marriage.
It would look pretty silly.
One way around the difficulty would be to argue that a Commonwealth law over-riding a state law on civil unions is a law with respect to marriage because it is a law that was eliminating something that was undermining marriage.
This, too, has constitutional difficulties. The first is that it is a pretty long bow. Under this argument the Commonwealth could use the marriage power to prohibit all sorts of things on the ground that they undermine marriage.
The second is that the “under-mining” argument pre-supposes that the word “marriage” in the Constitution means the union of a man and a woman because it is that concept that same-sex civil unions supposedly undermine.
Ruddock and Howard figure that the Commonwealth’s marriage power gives the Commonwealth power to determine what is and what is not a marriage in Australia. They even effected a change to the Marriage Act to define marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.
But this is a complete mis-reading of the principles of Constitutional law. It is for the High Court to determine the meaning of words in the Constitution, not the Commonwealth.
For example, the Commonwealth has power to make laws with respect to lighthouses. It cannot define lighthouses as any building a kilometre from the coast and then proceed to engage in town planning.
It may be that the High Court finds that marriage is the union of a man and a woman. But maybe not.
On another constitutional principle, the Commonwealth could not argue that its Marriage Act was “covering the field” and therefore there is no room for any state legislation because the Marriage Act is specifically NOT covering the field. It is specifically leaving out same-sex unions.
On the other hand, the Commonwealth can determine who is permitted to celebrate marriages and could pass a law saying that if a civil marriage celebrant celebrated a state or territory civil-union ceremony he or she would be struck from the list of authorised marriage celebrants. It would have the constitutional power to do this, but it would be a mean and petty thing to do.
The Commonwealth could refuse recognition of a state civil union for all purposes under Commonwealth law, but not state law. So state law could provide that same-sex couples in a civil union be treated the same as married couples for things like inheritance, adoption and state entitlements and the same as de-facto couples for property settlement on separation. And Commonwealth law could say that same the unions would not be recognised for the purposes of Commonwealth welfare benefits.
But this, too, provides a practical absurdity. The Commonwealth in trying to wreck civil unions would in fact end up making members of those unions better off. This is because most Commonwealth welfare benefits get means-tested against joint income. If there is no partner recognised under Commonwealth law the welfare beneficiary would get a higher amount.
The Commonwealth can use its foreign-affairs power to recognise or not recognise foreign marriages – such as same-sex marriages entered into in Massachusetts. But it will get into a lot of difficulty trying to override laws of Australian states giving rights and obligations under state law to members of same-sex civil unions.
u