Marriage and the Constitution

This week Federal Liberal Party Parliamentarians held a meeting to work out how to proceed with legislation for same-sex marriage. At the party room meeting on Monday it was decided that the Coalition Government would attempt to pass enabling legislation for a compulsory plebiscite that had been previously blocked in the Senate. This legislation failed on Wednesday. The second option was to hold a voluntary postal plebiscite of the Australian people. If this vote comes back with a majority yes vote, then the Liberal Party will give their MP’s and Senators a free vote on the floor of the Parliament. At the moment, all members of the Liberal Party are bound to vote no if legislation for same-sex marriage comes before the Parliament, as has already occurred some 13 times.

This week we are going to examine the processes that are enabled by the Constitution on this matter. This is an emotional topic and there are people with strong opinions, both for and against same-sex marriage being legislated for. At CEFA we do not advocate one side or another in any debate or issue. Our aim is to educate all Australians about the processes of government that are derived from the Constitution.

Where does the power for marriage lie in the Constitution?

Section 51 of the Constitution stipulates the powers of the federal Parliament. One of those is the ability to legislate for marriage:

Section 51 Legislative powers of the Parliament
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xxi) marriage;

At the time the Constitution was being written in the 1890’s each of the Australian colonies had their own Parliaments and their own laws on marriage and divorce. Initially in the early drafts of the Constitution these two matters were placed together in one section and it was discussed whether marriage or divorce in one state should have the same status in all the others. There was concern from the South Australians that the grounds of divorce that has been granted in Victoria and New South Wales could spread into South Australia.

In the end marriage and divorce were split into two sections in the Constitution. Qucik and Garran recorded that at the constitutional conventions marriage was described:

Marriage is a relationship originating in contract, but it is something more than a contract. It is what is technically called a status, involving a complex bundle of rights, privileges, obligations, and responsibilities which are determined and annexed to it by law independent of contract.

Even though marriage was a federal parliamentary power, federal legislation was not created until 1961. Each of the States had their own laws regulating marriage and this mean that the legality of a person’s marriage could change when they crossed a State border. In 1942 Tasmania raised the minimum age of marriage from 12 to 16 for girls and 14 to 18 for boys. This could have meant that a 12 year old married girl from New South Wales who moved with her husband to Tasmania may not have had her marriage recognised.

As you can see our customs and traditions in relation to marriage have changed. As such legislation for marriage has been altered over time to meet the expectations of Australia communities.

A definition of marriage was not inserted into the federal Marriage Act 1961. However, it was understood that marriage was between a man and a woman to be exclusive and voluntarily entered into for life. Of course, divorce was available (through state legislation until 1959 and then through federal legislation), so in some situations you could get out of a marriage. In 1975 no-fault divorces were made available to the people of Australia with the implementation of the Whitlam Government’s Family Law Act.

It wasn’t until 2004 that marriage was defined as between a man and a woman through an amendment of the Marriage Act. John Howard, who was Prime Minister at the time, has recently stated that this was done to prevent the courts from making decisions that may have recognised same-sex marriages that had been performed overseas:

What we didn’t want to happen in 2004 was for the courts to start adjudicating on the definition of marriage because that was a real threat in 2004 because some people who had contracted same sex marriages in another country had the capacity to bring their issues before courts in Australia.

Many argue that our society has changed and that the benefits of modern marriage should also be available to those in same-sex relationships. While there are others that would like to prevent any change to the Marriage Act.

The politics of change

In societies like ours, the government must balance the needs of Australians who want different outcomes. Whatever the process is towards deciding whether same-sex marriage should occur, it will need to be implemented through legislation.

There will have to be a vote in the Parliament at some stage for same-sex marriage to become the law. Before we get to that, the Government would like to ask the people to vote either in favour or against in a national poll.

The preferred option for the Government was a compulsory plebiscite where all Australian voters would have to go to a polling booth on a set day and vote yes or no. This plebiscite required legislative approval by the Parliament. The legislation to enable this has been blocked in the Senate twice, one of these times was earlier this week (on a side note, this legislation may now become a potential section 57 double dissolution trigger).

The next option the Government has chosen, is to run a non-compulsory postal vote. The government has stated that it has received legal advice from the Solicitor-General that this can be done without creating new legislation. The last time we had a non-compulsory postal vote was in 1997 under the Howard Government and legislation was passed in the Parliament to enable this.

Section 64 of the Constitution outlines how Government departments are administered:

Section 64 Ministers of State
The Governor‑General may appoint officers to administer such departments of State of the Commonwealth as the Governor‑General in Council may establish….

Government departments are run by Executive Ministers using legislation that has been implemented by the Parliament. Generally, if the Executive would like to implement new programs or spend funds within a department they need Parliamentary approval through the passing of legislation.

On Wednesday, the Independent Member for Dennison Andrew Wilkie announced that he would be party to a High Court challenge on the move to the postal plebiscite:

The Independent Member for Denison, Andrew Wilkie, will be joined by marriage equality advocate Rodney Croome AM, national spokesperson for PFLAG Shelley Argent OAM and lesbian mum Felicity Marlowe to announce a High Court challenge to the Government’s decision to go ahead with a voluntary postal vote on marriage equality. Mr Wilkie, Mrs Argent and Ms Marlowe will be the applicants in the court action.

The application was lodged in the High Court yesterday and is listed for hearing after 3.30pm today in Melbourne by Chief Justice Kiefel. There is another listed hearing that will also occur today, following an application by Australian Marriage Equality.

An Executive and Legislative dispute

The key to the High Court challenge is an examination of whether the Executive can run a national vote on same-sex marriage and spend $122 million without new legislation. People are wondering whether the existing legislation allows the Executive branch of government to conduct this poll. The High Court has the power to resolve disputes like this. This is found in Chapter III of the Constitution:

Section 75 Original jurisdiction of High Court

In all matters:

  1. arising under any treaty;
  2. affecting consuls or other representatives of other countries;
  3. in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
  4. between States, or between residents of different States, or between a State and a resident of another State;
  5. in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

And was conferred to the High Court through the Judiciary Act 1903:

Original jurisdiction conferred

                   In addition to the matters in which original jurisdiction is conferred on the High Court by the Constitution, the High Court shall have original jurisdiction:

                     (a)  in all matters arising under the Constitution or involving its interpretation;…

Normally the Australian Electoral Commission (AEC) runs elections. However, in this case the poll or survey will be conducted by the Australian Bureau of Statistics (ABS). The ABS is tasked with collecting statistics on Australians through the census every five years and other polls in between. As constitutional expert Anne Twomey has stated they are tasked with collecting and disseminating facts, not opinions. They also have no legislated method of resolving disputed elections. It has been announced that the AEC staff will be seconded to the ABS, but it is not clear what would happen if the results of the poll are disputed.

The allocation of $122 million to conduct the poll without Parliamentary approval is also a matter in the High Court challenge. Spending by the Executive Branch of Government generally needs to be approved by the Legislative branch. This is one of the checks and balances in our democracy and in recent years the High Court has found that spending by the Executive must have a legal or constitutional basis.

Other people are wondering on what legal basis the ABS will be allowed to gain access to the electoral rolls, how truth in advertising will be enforced and how people will be informed to enrol or update their details on the electoral roll. How will the survey/ballot papers be counted? Electorate by electorate, State by State or just nationally?

Will the ABS adjust the results so that they are statistically sound? The ABS has announced that the votes will not have personal identifiers on them. So, how can we be sure that people won’t vote multiple times and that there will be no voter fraud? How secure is postal voting? How many postal workers touch each letter? What if some postal workers start chucking the votes in the bin or tampering with them? How can we protect the votes? There are so many questions and voting is meant to begin next month.

It is likely that the High Court will quickly decide whether the postal vote/survey will go ahead. The Prime Minister yesterday announced that if the High Court finds that the Government is acting beyond its constitutional or legislative powers and does not allow the postal vote to go ahead, there will be no free-vote for Liberal MP’s and Senators in the Parliament.

If the High Court rules the postal vote is invalid, the issue moves straight back into the Parliament and we’ll all have to watch that space. We know this is a very emotional topic for many people. But as you can see, the constitutional processes are yet to be decided.


Subscribe and stay up to date with CEFA's Constitutional Forum