University of Adelaide Academics defend constitutionality of same-sex marriage before the Senate

 On Friday, 4 May 2012, Professor John Williams and Gabrielle Appleby from the Adelaide Law School appeared before the Senate’s Legal and Constitutional Affairs Committee to give evidence in support of the submission made by a number of University of Adelaide scholars. The full submission, and a brief overview of it, is available here.

On Friday, 4 May 2012, Professor John Williams and I appeared before the Senate Legal and Constitutional Affairs Committee in their inquiry into the Marriage Equality Amendment Bill 2012. We appeared on behalf of a group of University of Adelaide academics who had made a written submission to the inquiry. Associate Professor Dan Meagher and James Farrell from Deakin University gave evidence alongside us. We appeared before four Senators – Senators Abetz (Liberal), Crossin (Labor), Hanson-Young (Greens), and Pratt (Labor).

We were given the opportunity to make a very short opening statement, in which John and I made three main points. We decided that given our strength as constitutional specialists, we would limit our submissions to assisting the Committee in relation to the constitutional questions raised by the Bill. We said:

  1. There are strong arguments that the Commonwealth Parliament has power to pass the Marriage Equality Amendment Bill.
  2. Even if there is some doubt about the Parliament’s power to pass the Bill, this is not itself a reason for the Commonwealth to decline to do so. Australia’s constitutional history is replete with other examples of the Parliament passing laws in areas of uncertainty. That’s not to say Parliament can pass laws that are clearly unconstitutional, but recognises that the separation of powers under our constitutional system means there will always be a level of uncertainty where the High Court has not directly considered a question in the past.
  3. If the Commonwealth were not to pass the Bill, there should be an amendment made that allows the States and Territories to regulate this area, if they chose to. This will allow for federal experimentation and diversity to operate, giving more legitimate expression to local community values.

 The Senators were predominantly interested in the question of the Bill’s constitutionality, and pursued two main lines of inquiry.

First, they asked whether it would be more prudent for the Parliament to take the question to a referendum rather than pursue reform where there was an element of uncertainty. Again, we noted that in our constitutional system, there always remains some uncertainty until the High Court definitively addresses an issue. It misunderstands Parliament’s role to say that it is more prudent to wait for a referendum where there is constitutional uncertainty. Indeed, many important legislative developments have been made in areas where there was some uncertainty. We also made the point that a constitutional amendment may lock in a definition of marriage that prevents any flexibility in its application in future.

Secondly, the Committee asked us whether, by analogous reasoning, if the marriage power could extend to support legislation regulating same-sex marriage, it could also extend to polygamous marriage. We responded by referring the Committee to the High Court’s decision in the Marriage Act Case (1962), where there were obiter comments to the effect that regulation of polygamy is not within the marriage power, but criminalising polygamy is within its incidental aspect. Unlike same-sex marriage then, the High Court has indicated that part of the fundamental characteristics of marriage is that it is a union of two persons to the exclusion of all others. Further, unlike same-sex relationships, there is no legislative history that evidences a changing social acceptance of polygamous relationships. In Rowe and Roach, the Court looked to legislative changes which they said were of constitutional significance to determine the nature of representative government today. The recognition in Australian anti-discrimination legislation that sexual orientation is an irrelevant characteristic differentiates same-sex marriage significantly from polygamy.

 The Senate Committee will report on the Marriage Equality Amendment Bill 2010 on 6 June 2012.

Gabrielle Appleby is a Senior Lecturer at the Adelaide Law School. The Hansard from the hearing before the Senate Committee can now be accessed through the Parliamentary website, here.

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2 Responses

  1. Steve McDonald says:

    Do you think there is scope for an argument that the marriage power necessarily includes, to some extent, the power to define what *is* a marriage, and/or *who* may marry? the latter would seem to permit same sex marriage. The former might even support the legalization of polygamy. This kind of approach would make the precise bounds of the power difficult to define, but shifts the emphasis away from historical considerations. The High Court might find it attractive for both those reasons. Compare s 51(xix) (aliens): both heads of power concern a legal concept or status, and it has been held that in the case of aliens that affords the Parliament some measure of power to define the concept (albeit still subject to certain limits) see, eg, Singh v The Commonwealth (2004) 222 CLR 322 per Gleeson CJ.

  2. Gabrielle Appleby says:

    Absolutely – I think there are good analogies to be made with the aliens power and the marriage power. Both are legal concepts that the common law/Parliament historically defined prior to federation. It would make sense that the framers intended the Parliament to continue to be able to define these concepts after federation. A good analogy may also be made here with the trademarks power (s 51(xviii). Then of course the question becomes what are the ‘limits’ that the Constitution sets, and must these remain as intended back in 1901. For example, is one of those limits “a man and a woman”? This is why I still think it is necessary for the Court to come back to historical considerations and look at what the essential characteristics of the institution are and whether these can/have evolved. Could the parliament define the institution to be “between two people to the exclusion of all others”? Could the parliament define the institution to be “between any number of people to the exclusion of all others”? I think this is where the Court will consider the changes since 1901. There is certainly legislative developments to support the idea that same-sex relationships are to be treated equally with heterosexual relationships. There is nothing to this effect in relation to polygamous relationships.