Tasmanian Same-Sex Marriage Bill: the constitutional issues


University of NSW constitutional law expert, Professor George Williams, has provided a formal opinion on the constitutionality of the Tasmanian Same-Sex Marriage Bill.

In this extract Prof Williams explains why the Tasmanian legislation has a sound constitutional basis.

He draws a useful analogy with federal and state industrial awards.

"I have been asked to advise on whether the proposed Same Sex Marriage Act 2005 (Tas) is inconsistent with the Marriage Act 1961 (Cth) such that it would be rendered inoperative under section 109 of the Australian Constitution.

"The issue is to be determined by … the field covered by the Commonwealth law and whether the State law operates in this same field. If it does, the State law will be inoperative under section 109. The field ‘covered’ by a law is often difficult to discern and can require subjective judgment as the High Court has not laid down a precise test that can be applied. In this case, the field covered by the Marriage Act is likely to be either the field of marriage generally (whatever the sex of the partners) or more specifically the field of different-sex marriage.

"My opinion is that the Commonwealth Marriage Act covers the field of marriage in so far as the concept is defined by that Act, that is between ‘a man and a woman to the exclusion of all others’. The Act is definite is establishing the boundaries of marriage for the purposes of that Act as being different-sex marriage. It is also significant that the Act only seeks to prevent the recognition of same-sex marriage in respect of certain unions under foreign law. The Act says nothing about such unions if recognised by State law.

"An analogy can be drawn with the approach taken by the High Court to whether a federal industrial award overrides a State award. The court has held that, where a federal award makes no provision on a particular matter, a State award may be able to operate on that matter without being overridden under section 109.

"If the proposed Same-Sex Marriage Act had sought to gain recognition for same-sex marriages under the Marriage Act it would be inconsistent with that Act (the Marriage Act provides exclusively for the marriage of different-sex couples). However, the Tasmanian Act recognises same-sex marriage without seeking to gain recognition under federal law. The Act instead recognises a form of commitment that is given force by Tasmanian law. The consequence is that, while the federal and States Acts both refer to what they call ‘marriage’, they are two laws that operate in different fields. This is further illustrated by the fact that if the State law provided for same-sex unions without using the term ‘marriage’ they would be even more clearly seen as laws that operate in different fields. This shows how, in substance, they are not inconsistent.

"…my opinion is that the proposed Same-Sex Marriage Act would not be rendered inoperative under section 109 of the Constitution. It is not inconsistent with the Commonwealth Marriage Act because the two Acts operate in different fields."

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