Gay marriage and the Constitution (2)

George Williams has emailed me and advised that his detailed opinion on the constitutionality of a Tasmanian Greens Bill aimed at allowing same-sex marriage is available on the Tasmanian Greens website. Melbourne University public law academic Simon Evans (whose blog I’ve just discovered) has also responded to my post of yesterday and mounted a plausible argument in favour of the constitutionality of the Greens bill (if it’s ever enacted). The issue is certainly very arguable.

Simon takes issue with my claim that the Howard government clearly intended to define marriage exhaustively for all purposes (including both federal and state law) as meaning only heterosexual marriage, and to exclude the possibility of gay marriage in Australia:

I think that equally plausibly it could be said that the government’s intention was to exclude the possibility of same sex marriage under the Commonwealth Act.

That intention would reflect a modesty about the scope of the Commonwealth’s constitutional powers that one traditionally associates with conservative governments in Australia (at least until recently …).

But of course, as I’ve argued previously (echoing historian Judith Brett), John Howard is anything but a traditional Burkean conservative or even a Deakinite liberal.

The political context of last year’s amendments to the Marriage Act was earlier and similar moves by US President George Bush to propose constitutional amendments to override moves by some US states to legalise gay marriage. It was both a “dog whistle” strategy (to appeal to the religious right and conservative American heartland generally) and a “wedge” (to force the Democrats to decide whether to accede to the proposal or oppose it and reflect the equally strong views of their left-liberal constituency).

Howard was clearly seeking to emulate Bush’s strategy and create a similar wedge/dog whistle strategy in an Australian electoral context. In the short term he failed, in that the federal ALP ultimately voted in favour of the Marriage Act amendment both in the Reps and Senate. But Howard’s strategy might yet succeed politically if Tasmanian State ALP Members vote in favour of the Greens Bill. Any constitutional challenge would then probably fall to be decided in the run-up to the next federal election, giving Howard yet another chance at a combined wedge and dog whistle.

Of course, none of this general political background would be of any assistance to the High Court in detecting or resolving any ambiguity in the Marriage Act amendments, or any consequent inconsistency between federal and state law. But the local legal history and context is certainly relevant, as are statements about the amendments by Howard himself and Attorney-General Ruddock. The legal context is usefully summarised by Jennifer Norberry in this Parliamentary Library Bills Digest:

While the Marriage Act does not define ‘marriage’, section 46 of the Act incorporates the substance of the 19th century English case law definition of marriage found in Hyde v. Hyde & Woodmansee. Section 46 says that celebrants should explain the nature of the marriage relationship with words that include:

Marriage, according to the law of Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life 1.

As indicated above, these words are a description or exhortation rather than a definition.

While it can be argued that for the purposes of Australian law ‘marriage’ does not include unions between persons of the same sex, it is also true that our understanding of who can contract a valid marriage under Australian domestic law is changing/being elucidated. For example, the Family Court was recently asked to make a declaration that a marriage between a post-operative transsexual person who had been born female (‘Kevin’) and a woman (‘Jennifer’) was a valid marriage. Both a single Family Court judge and, later, the Full Family Court declared the marriage valid. The Commonwealth had opposed the application. It intervened in the first proceedings and then appealed the single judge decision to the Full Family Court (it has not appealed the Full Family Court decision to the High Court).

Thus, the Howard government’s recent insertion of a definition of “marriage” into the Marriage Act can reasonably be seen as a response both to the Kevin and Jennifer case (although it doesn’t attempt to resolve the issue of whether “man” and “woman” respectively include post-operative transsexuals) and to the possibility that evolving common law interpretations of the concept of marriage, having regard to the absence of a statutory definition, might ultimately have resulted in same-sex marriages being held lawful.

The objective of the 2004 amendment was to foreclose the possibility of lawful same-sex marriage, not to do so only for federal law purposes while leaving open the possibility of their legalisation under state law. That this is so is confirmed by the Attorney-General’s Second Reading Speech (see House of Representatives, Hansard, 24 June 2004, p. 31459) and even more clearly by the following remarks of John Howard quoted in the SMH:

Mr Howard said the Marriage Act would be changed to include a definition of marriage as the `voluntarily entered-into union of a man and a woman to exclusion of all others’.

The laws currently do not define marriage.

“We’ve decided to insert this into the Marriage Act to make it very plain that that is our view of a marriage and to also make it very plain that the definition of a marriage is something that should rest in the hands ultimately of the parliament of the nation,” Mr Howard told reporters.

”(It should) not over time be subject to redefinition or change by courts, it is something that ought to be expressed through the elected representatives of the country.” …

“As far as the other measures are concerned, the government takes the view that not only is it a statement of its attitude towards marriage but it’s also a necessary assertion by the parliament of the country above all others to define what is regarded in our community what is a marriage.”

Clearly these remarks are not consistent with the Howard government merely having a modest intent to apply the definition of marriage only to federal law. Of course, that doesn’t necessarily mean the High Court would endorse Howard’s actual political intent as the legislative intent of the amendment. Legislative intent is an objectified concept whose elucidation sometimes leads to conclusions at variance with a government’s actual political intent. The government may have failed to achieve its actual intent through inept drafting. But certainly the High Court can look at the Prime Minister’s and A-G’s words, both in and outside Parliament, not only to resolve an ambiguity in legislation but to confirm that one exists. It might be reasonable to presume that a general and unqualified definition of “marriage” in a Commonwealth Act is nevertheless intended to apply only to federal law, but should that presumption continue to be applied in the face of clear extrinsic evidence of a contrary intention? We can’t say that the definition as drafted is necessarily inconsistent with an intention to affect both state and federal law; the most we can say is that it’s ambiguous, and at least arguably that ambiguity is resolved by reference to extrinsic sources.

Turning specifically to the section 109 inconsistency issue, Simon Evans argues as follows in relation to my argument that the Tasmanian Bill would arguably be inconsistent with the Marriage Act by application of a direct inconsistency test (as opposed to an indirect “cover the field” test):

The High Court seems to be moving away from the (pedagogically convenient but always problematic) two way (or three way) categorisation of inconsistency towards an approach that asks whether one Act alters, impairs or detracts from the operation of the other. But assume anyway that the Tasmanian Bill confers a right for two people of the same sex to marry. Does the Marriage Act remove that right? Arguably not. It fails to give them a right to marry. But it does not prohibit them from going through a marriage ceremony – precisely because the prohibitions in Part VII of the Act are directed to marriages as defined by the Act – and following the 2004 amendments those prohibitions are directed to marriages between a man and a woman.

But Simon’s formulation reverses the chronology of events. It isn’t a matter of the Marriage Act amendment removing a right that the Tasmanian Bill had conferred, but the converse. The Commonwealth’s 2004 amendments removed (or at least pre-emptively foreclosed) a right to same-sex marriage that a court might otherwise have found to exist at common law but for the amendments. The Tasmanian Bill (if enacted) will restore an effectively identical right under state law. Subject to acceptance that John Howard’s strongly expressed actual intention about the 2004 amendments was effectuated by the legislation itself, the Tasmanian Bill will clearly alter, impair or detract from the operation of the earlier Commonwealth amendment.

A similar argument arises if we apply the indirect “cover the field” test. We need to determine the field in which the Commonwealth law was intended to operate. George Williams’ opinion seeks to define the fields of operation of the Commonwealth and Tasmanian law as being discrete:

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 Tasmanian law does not, in general, operate in the federal field of different-sex marriage. With one exception, it deals with same-sex marriage.

But, as with approaching the question via a direct inconsistency test, Williams’ conclusion as to the intended field of operation of the Marriage Act is sustainable only so long as we avoid looking at the Howard government’s strongly expressed actual intention. As I conceded above, a government’s actual political intention will not always be successfully reflected in resulting legislation, but expressions of such intention are certainly admissible as extrinsic aids to interpretation.

Moreover, George Williams’ opinion contains a caveat worth highlighting:

2n the other hand, it is arguable that this is an implication that the Commonwealth law already covers the field of same-sex marriage in Australia so as to make it unnecessary to insert such a provision with respect to State law

That possibility is arguably fortified by the fact section 6 of the Marriage Act expressly preserves the effect of state laws concerning registration of marriage, but is silent on the extent to which other state laws affecting the field of marriage may operate alongside the Commonwealth Act. Williams goes on to concede:

While section 6 is thus not explicit on the issue, it is likely that a Court would find that the Commonwealth Marriage Act is intended to be exclusive within its field. The detailed and comprehensive regime in the federal Act as well as the problems of having two sets of laws dealing with marriage are strong indicators of this.

His opinion is therefore dependent on his conclusion that the federal and state laws would have discrete fields of operation, a conclusion thrown in doubt by the Howard government’s actual political intention.

It is possible to advance reasonable arguments both for and against the constitutional validity of the Tasmanian Greens’ same-sex marriage Bill. However, I suspect we may never get a definitive answer. I would be very surprised if the Tasmanian ALP government votes in favour of the Greens’ Bill. If they don’t recognise for themselves the danger of falling into the ‘wedge’ trap set by John Howard, you can be sure that Kim Beazley’s advisers will point it out to them in no uncertain terms.

  1. or words to that effect[]
  2. O[]

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
This entry was posted in Law. Bookmark the permalink.
Newest Most Voted
Inline Feedbacks
View all comments
2024 years ago


Ken Parish
Ken Parish
2024 years ago

What do you mean test? Is that all you’ve got to say? BTW I got the tickets for this evening.

Dave Ricardo
Dave Ricardo
2024 years ago

Tasmania being Tasmania, it would be fitting if the bill allowed marriage between two brothers, or two sisters.

2024 years ago

Dave that’s just scary.

John Morhall
John Morhall
2024 years ago

Ken, I agree that reality suggests that there are few votes in the issue, and the States have already shown their ticker re a stoush with the Feds over GST. I cannot see the Tasmanian Government leading the charge on this when they will probably need to spend their allocated ‘constitutional law dollars’ to avoid being screwed over the GST fall-out. A s109 “when is a marriage not a marriage” case does not have IMO broad voter appeal.
That having been said, it is nonsensical IMO that same sex couples, many of whose relationships last longer than the average heterosexual relationship, cannot get some form of equitable legal formalisation of their relationship if they wish.

Mark Bahnisch
Mark Bahnisch
2024 years ago

Not a close follower of Tasmanian politics, but I wouldn’t be at all surprised if Lennon is a bit of a social conservative.

Ken Parish
Ken Parish
2024 years ago


I’d be surprised if he wasn’t (socially conservative, that is).


Yes, I agree with all your comments. Although clear and equal legal rights for same-sex couples are essential, it would be just plain dumb for the Tasmanian ALP (or any other state government) to fall for Howard’s wedge and concur in a state law legalising gay marriage.

I took the opportunity of exploring some of the black letter law nuances of this issue, because Simon Evans and George Williams ably put the other side of the argument. To the extent that readers bothered following the discussion, I think we clearly demonstrated that the legal analysis of Howard’s 2004 “marriage” definition amendment is highly debatable. It’s impossible to avoid the conclusion that this legal ambiguity was a designed feature of the legislation. Howard wasn’t really interested in clarifying the law (if he had been, it would have been very easy to draft the law more clearly). He was interested in creating a combined dog whistle and wedge, that would place federal Labor in a dilemma about whether to support the amendments, and possibly tempt a State government into legislating for gay marriage. That would then give Howard the chance to stand up in support of marriage, family, footie, mateship and the ANZAC spirit while characterising the ALP as dangerous leftie radicals who threatened all those things.

The outcome of any subsequent litigation wasn’t really important to that strategy. Indeed the deliberate ambiguity of his Marriage Act amendments was essential to the strategy. Legislating clearly to outlaw gay marriage (including state laws about it) would merely have produced an immediate constitutional challenge from gay activists. That wouldn’t have served Howard’s purpose, because it wouldn’t have lured the ALP into taking a definitive stance that could be used against it politically. These amendments had very little to do with meaningful legal reform, and everything to do with politics.

One of the things I aim to achieve with this blog is to explore the interface between politics and black letter law in public law controversies. Legal academic writing tends (properly) to eschew the political dimension except by way of brief background explanation, while political scientists (with some honourable exceptions like Brian Galligan and John Warhurst) tend to avoid the black letter law nuances. I think a blog like this one can allow that gap to be bridged in an interesting way, by drawing on the diverse knowledge and perspectives of readers and other bloggers. It runs the risk of descending into confusion and incoherence on occasion, not to mention boring some readers stupid, but I think it’s worth the effort.

Mark Bahnisch
Mark Bahnisch
2024 years ago

The moustache is a giveaway, Ken!

Simon Evans
2024 years ago

Ken: I don’t want to bore your readers stupid, as you say, so I’ve commented over at my place: Some politics, more law.