ily Tasmania has introduced legislation before Parliament to legitimise same-sex marriage, and New South Wales has announced it will introduce similar legislation based upon the Same-Sex Marriage Act 2012 (Tas) (‘SSM Act) before the end of 2012. This paper will discuss the merits of a High Court constitutional challenge to the validity of State legislation.
The Commonwealth of Australia Constitution Act 1901 (Cth) (‘Constitution’) sets out in section 51(xxi) that the Federal Parliament has the power to make laws for the peace, order and good Government of the Commonwealth in respect to marriage. This power is though, a concurrent power not exclusive, and until 1961 the States individually legislated with respect to marriage, and divorce.
It is argued that legislating for same-sex marriage under State law may be invalid due to the Commonwealth provision in the Marriage Act 1961 (Cth)(‘Marriage Act’), that marriage be between a man and a woman, and that would lead to inconsistency between Commonwealth and State laws, whereby where any inconsistency results the Commonwealth law prevails.
For s109 of the Australian Constitution to come into effect, there must be a valid State law and a valid Commonwealth law. The effect is that the State law yields to the Commonwealth law, but remains a valid law of the said Parliament. Practically, if then the prevailing Commonwealth Law ceases to operate, the State law automatically revives. The test for invalidity under s109 is a three fold test of inconsistency, two being direct and one indirect, though the test for standing is one which hold the greater uncertainty.
Standing - To bring a constitutional challenge to the High Court under s75 of the Constitution, a party must have standing, that is, a real interest in the matter; a person aggrieved. There would seem unlikely that any party apart from the Commonwealth would be granted standing, as the SSM Act only affects same-sex persons who have been demanding equal marriage rights for the last decade. A party or organisation could seek the fiat of the Attorney General to bring a relator action. This would mean that the person or organisation stands in the place of the Commonwealth’s standing to bring the matter. In Williams the Court put the questions of standing aside provided the Commonwealth intervened in the matter in support of the plaintiffs.
Direct Inconsistency - The first test under direct inconsistency is that it is impossible to obey both laws simultaneously,meaning that it is an impossibility to abide by both laws at the same time. There is no invalidity under this test as the SSM Act provides legislation only for same-sex marriage, not for different sex marriages, which are governed by the Marriage Act. A same-sex couple marrying under the SSM Act cannot marry under the Marriage Act and therefore there is no direct inconsistency, as the Marriage Act does not apply to them, nor are different sex couples able to marry under the SSM Act.
The second test of direct inconsistency is that of a conflict of rights, privileges and entitlements, that is, if one law confers a right, which the other purports to take away. It could be argued that there is a direct inconsistency in this regard as in Tasmania a same-sex couple would be able to marry, but that marriage not be valid under Commonwealth legislation, however, the Marriage Act doesn’t legislate against same-sex persons, it only legislates the conditions of different sex marriages, therefore both laws can be valid in an operational sense.
Indirect inconsistency - There are two questions that need to be addressed in this area, firstly to identify if the Commonwealth intended the law to be exclusive, that is, the only law on the subject, or supplementary or cumulative with other laws, more commonly known as covering the field; and secondly, whether the State law does in fact operate in the same field as the Commonwealth. The Commonwealth is limited in...
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