Govt Challenge Will Test Federal Jurisdiction Over State and Territory Laws

Catholic Communications, Sydney Archdiocese,
16 Oct 2013

Under the Commonwealth Marriage Act marriage is a union between a man and a woman

Australia's founding fathers gave the Commonwealth power over marriage to ensure no matter where a couple was married within Australia, their marriage would be legally recognised by every other state or territory, says leading Constitutional Law expert, Prof Greg Craven, Vice Chancellor of the Australian Catholic University.

"More than a century later, the same principle still applies," he says and points out that in all likelihood the Commonwealth's early legislators understood the difficulties that could arise if a couple married in Melbourne, for example, moved to Perth only to find their marriage was not recognised there and that different laws applied.

"Clearly it is important that the status of marriage is uniform across the country," he says. He also emphasises that this is a principle that goes way beyond the issue of same-sex marriage that has dominated some state parliaments, including NSW, Tasmania and South Australia in recent years and is currently before the ACT's Legislative Assembly and expected to become law in the ACT before the end of the month.

Late last week, Attorney General George Brandis took the unusual step of announcing the Federal Government's intention to challenge the ACT legislation on same-sex marriage even though the Bill has not yet been passed. The legislation will be challenged in the High Court despite the fact the Commonwealth has jurisdiction over the territories and can overrule laws made by the ACT or the Northern Territory under Section 102 of the Constitution.

The High Court of Australia will decide whether Commonwealth law can overrule states or territories on same sex marriage

"The problem is it is not always easy to do this. Whether the Senate would allow the law to be overturned is an important factor," Prof Craven says.

For this reason he believes the Federal Government has flagged its intention to challenge the proposed ACT law and have the High Court decide the issue.

The question now is whether the High Court decides to uphold the ACT's Marriage Equality Legislation that will allow same-sex couples from other states as well as those living within the ACT to wed, or whether the Court will rule in favour of the Commonwealth's Marriage Act 1961 and decide the Act should overrule those of the states or territories with regard to the legal recognition of marriage in Australia.

"Whatever conclusion is reached by the High Court will have ramifications not only for the ACT but for all states as well as the Northern Territory," according to Prof Craven.
When the Federal Government's challenge is heard by the High Court, arguments will centre around the whole question of whether the ACT legislation authorising same-sex marriage is inconsistent with the Commonwealth's Marriage Act 1961 and Federal Law.

Dr Greg Craven, expert on Constitutional Law and Vice Chancellor of the Australian Catholic University

Prof Craven says under Section 109 of the Constitution where there is inconsistency between a state law and a Commonwealth law, the Commonwealth legislation will take precedence.
However the Marriage Act specifies marriage as the legal union between a man and a woman.

Same-sex marriage is not mentioned.
Prof Craven says this has led to two different schools of thought with one group interpreting the fact that same sex marriage is not mentioned, to mean that any law legalising same-sex unions is therefore not in opposition or inconsistent with the Marriage Act but another issue entirely.

This is the argument the ACT Government is expected to use with lawyers on its behalf claiming that the Marriage Equality Bill legislation applies "only" to those who could not get married under the Marriage Act.

The other school of thought which includes the Coalition Government as well as Prof Craven holds the view that as the Commonwealth Marriage Act specifically states marriage is "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life" any other kind of marriage as legislated by a state or territory would be inconsistent with the Act and therefore  Commonwealth law should prevail.
This will be an argument used by the Federal Government's lawyers in their challenge to the ACT legislation once it is passed. The Commonwealth's lawyers are also expected to argue the importance of laws governing marriage be consistent throughout the nation as has been the case for 110 years.

Commonwealth law may take precedence over the ACT's plan to legalise same sex marriage

"This is fundamental to Constitutional history and theory," Dr Craven says.

Queensland has already signalled it may line up behind the Commonwealth in its challenge to the High Court over the ACT same-sex marriage laws. Other states are may also come on board.

Although ostensibly a fight between the Commonwealth and the ACT over the legalisation of same -sex marriage, the challenge to the High Court is also a fight about territory rights and depending on the judgement handed down, with ramifications on the rights of states as well.

Saying it is impossible to predict how the High Court might rule, Prof Craven nevertheless believes the challenge by the Coalition Government against the ACT's soon to be passed Marriage Equality Bill has the "potential to be a very interesting test case" on the whole question of Federal and state or territory legislation.