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States could legalise same-sex marriage

An issue of concern likely to face Commonwealth Marriage Celebrants in 2013 will be whether the various states aiming to legalise Same-Sex marriage succeed.
    • Will Commonwealth marriage celebrants be able to apply to be State Registered Marriage Celebrants?
    • Would they be contravening Federal law if they apply a State law on the definition of marriage?

These are concerns that have been put on the back foot whilst the Coalition of Celebrant Associations - CoCA deals with the impact of the Cost Recovery legislation. It seems incredible to Commonwealth Marriage Celebrants who for 40 years have worked under a Commonwealth Act that applies to all states and who are regulated by the Commonwealth Attorney-General's Department that this situation could arise in law. Perhaps this article by Professor George Williams from 2010 can explain in some the rationale upon which this State action is being moved by some states.

National Celebrant e-Magazine Editor

States could legalise same-sex marriage


George Williams

Professor of Law at the University of NSW

When same-sex marriage is debated, many people assume it can only be brought about by the federal Parliament. They do so because marriage is regulated by the Commonwealth, not the states.

This belief is misplaced. Not only can the states pass laws for same-sex marriage, but some argue the Commonwealth is unable to do so.

This is a blind spot in the debate. While Bob Brown's proposal for a national law should be welcomed, it should not exclude the possibility of state action. Just as Victoria, the ACT, Tasmania and NSW have passed landmark laws allowing for the registration of same-sex relationships, so too could a state be the first to permit same-sex marriage.

As in other parts of the world, the question of same-sex marriage in Australia is likely to attract constitutional litigation. Unfortunately, unlike in other nations, the legal issue will not be one of human rights, but of the restrictions imposed by our federal system. Same-sex marriage laws can be enacted by the states, but there is considerable uncertainty about whether the federal Parliament can also do so.

Section 51 of the constitution states the Parliament can make laws on ''marriage''. When the constitution was drafted in the 1890s there was no doubt this was intended to refer to laws for the union of a man and woman.

Judges of the High Court inclined to read the constitution according to its original intent could find that the federal power does not support same-sex marriage. They might hold that the Parliament has already legislated to the limit of section 51 in defining marriage as a ''the union of a man and a woman to the exclusion of all others, voluntarily entered into for life''.

Other judges might take a different tack, deciding that the meaning given to the constitution must evolve with changes in society. That same-sex marriage is so widely regarded as a possibility in Australia - and is a legal reality overseas - supports the idea that the federal marriage power now extends to couples of the same sex.

There can be no answer to this dilemma until a federal same-sex marriage law is tested in the High Court. My view is that a majority would lean to the latter view, thereby allowing the federal parliament to provide for same-sex marriage.

Much of what has been written in Australia is based on the false premise that the ''marriage'' power is exclusive to federal Parliament, but every federal power in section 51 is held concurrently with the states.

Just as the Commonwealth can legislate for marriage, so too can the states. But in the case of the states, they are not limited by the possibility of a narrow meaning of marriage. A state can pass any law in the area that it wishes, and undoubtedly has the power to provide for both heterosexual or same-sex marriage.

Few realise that Australia's marriage laws have, for most of the life of the nation, been state and not federal laws. It was only in 1961 when the federal Marriage Act was passed that this area was taken over by the Commonwealth. Until then marriage was the domain of the states.

The opportunity now exists for a state to re-enter the field by permitting same-sex marriage. Tasmania may be most likely to do so in the shorter term. Last month a bill passed its lower house that would allow recognition of same-sex marriages entered into overseas. Earlier attempts at allowing same-sex couples to marry there have also been made by the Greens leader, and now state cabinet member, Nick McKim.

The only possible impediment to a state same-sex marriage law is that it may be overridden by an inconsistent federal law under section 109 of the constitution. But if it turns out that federal Parliament cannot pass laws for same-sex marriage, it could not override state laws on the topic.

In any event, it seems likely the federal Marriage Act does not prevent a state from legalising same-sex marriage. Amendments to the act in 2004 made it clear that the law applies exclusively to marriage between a man and a woman. This Howard government measure had the unintended effect of reducing the possibility of a conflict and thereby opening up the field of same-sex marriage to the states.

It would be better to have a single national law providing for same-sex marriage. However, such a law may not be legally possible, and in the short term may be politically unachievable. In these circumstances, we should not discount the possibility of a state leading the way.

George Williams is the Anthony Mason Professor of law at the University of NSW. 

Date  September 28, 2010

Reprinted wth permision

Last modified on Wednesday, 19 December 2012 16:50