The marriage power: constitutional issues.

When Australia became a nation on 1 January 1901, it also became a federation. The federal system then created by the Constitution divides power between the Commonwealth and the States. Under this system, the task of the High Court is to ensure that the constitutional powers of each level of government are properly respected. It does so by striking down any federal or state law which is contrary to the terms of the Australian Constitution.

Where there is a conflict between a federal and a state law, and the subject of the law refers to a concurrent power--that is, one which is vested in both the Commonwealth and the States--section 109 of the Constitution must be applied: "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former, to the extent of the inconsistency, be invalid."

The areas of Commonwealth legislative power are listed in sections 51 and 52 of the Constitution. They grant the Commonwealth legislative power over 40 specific areas, including marriage and divorce. Since the Engineers' case (1920), the High Court has adopted a "generous" approach to the interpretation of federal powers, thus reading the enumerated powers of the Commonwealth expansively. As Stewart and Williams point out: (1)

  "The Court has taken a liberal approach to the process of
  'characterisation'. So long as a law deals with a subject that is
  within the heads of power, it does not matter that it can also be
  characterised as being about a subject that falls outside those
  heads. Nor is it relevant that the principal concern or motive of the
  legislators may have been to regulate the latter subject ...
  [Moreover], and with only a few exceptions, the Court has refused to
  interpret the various heads of power by reference to any concept of
  'mutual exclusiveness'. The fact that one head of power may be used in
  such a way as to go beyond the limits of another power does not mean
  that the first power will be construed narrowly so as to prevent an
  overlap."

In reality, the High Court's interpretation of the Commonwealth power in s51 has been "heavily influenced by the Engineers' doctrine, which established that each paragraph of s51 must be given its widest literal meaning". (2) In Polyukhovich v Commonwealth (1991) 172 CLR 501, for example, High Court Justice Deane argued for the majority that all "the grants of legislative power contained in s51 [including the marriage power] must be construed with all the generality which the words used admit and be given their full force and effect". As Moens and Trone explain: (3)

  "The need to give a broad and liberal construction to the provision
  conferring legislative power on the Commonwealth was strongly affirmed
  in the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd
  [The Engineers' case] (1920) 28 CLR 129 and has generally been
  recognised by the High Court since.

  "A law may be upheld as being with respect to a subject matter of s51
  even though it also concerns matters falling within State residuary
  power. See, for example, Murphyores Incorporated Pty Ltd v
  Commonwealth (1976) 136 CLR 1 at 22 ...; Actors and Announcers Equity
  Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 184, 193-4;
  Commonwealth v Tasmania (1983) 158 CLR 1 at 151, 270 ...; Alexandra
  Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271
  at 279 ...

  "One question which has been before the High Court in a number of
  notable cases is to what extent the Commonwealth may, by legislating
  under a head of power contained in s51, interfere with the power of a
  State ... [T]he Engineers' case ... pointed out that s107 could not be
  regarded as 'reserving any power from the Commonwealth that falls
  fairly within the explicit terms of an express grant in s51, as that
  grant is reasonably construed, unless that reservation is as
  explicitly stated' (at 154). The [State] reserved powers doctrine has
  now been 'exploded' (Airlines of New South Wales Pty Ltd v New South
  Wales (No 2) (1965) 113 CLR 54 at 79). See similarly, Strickland v
  Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 485; Commonwealth v
  Tasmania (1983) 158 CLR 1 at 280-1 ...; New South Wales v Commonwealth
  (1990) 169 CLR 482 at 507 ..."

A very good example of expansionary interpretation is concerning the power over workplace relations. The closest the Constitution comes to giving the Commonwealth such a power is in a carefully limited form in section 51(xxxv), which refers just to the conciliation and arbitration of interstate industrial disputes. Thus, to introduce a national industrial relations regime, the Federal Government had to rely upon the corporations power in s51(xx), to set out the conditions of employees working for every constitutional corporation in Australia. On 14 November 2006, the High Court delivered its long-awaited judgement on the validity of the Work Choices legislation. In New South Wales v Commonwealth (2006) HCA, the court held, by a five-to-two majority, that the Federal Government has the constitutional power to enact this legislation. According to Stewart and Williams: (4)

  "To pass the Work Choices legislation, the Howard Government was
  forced to be creative. It did not have at its disposal a general power
  in the Constitution over industrial matters. Instead, it had to
  legislate indirectly by using the corporations power in section 51
  (xx). It makes no mention of workplace issues in conferring power only
  over 'foreign corporations and trading or financial corporations
  formed within the limits of the Commonwealth' ... Central to the High
  Court's reasoning was a general statement about the scope of the
  corporations power, especially the finding that it can be used for a
  law regulating the activities, functions, relationships and business
  of constitutional corporation. This finding was applied in the
  specific industrial context to uphold the Work Choices law, but could
  equally be applied elsewhere in the future. It is certainly not
  limited to any one context, there being nothing in the words of the
  power that could justify this."

Under the Australian Constitution, the Commonwealth Parliament has an express power to make laws with respect to marriage. This power comes from the marriage power which is conferred by s51 (xxi) of the Constitution. Given the High Court's expansive interpretation of the Commonwealth's constitutional power, and also the fact that the Court has broadly construed s109 of the Constitution in enabling federal laws to override their states' counterparts, a federal marriage bill overriding state laws would be perfectly constitutional.

In addition to the express federal power to legislate on marriage, the parliament has also valuable incidental powers to regulate and protect the institution of marriage. There are two types of incidental power which relate the head of powers mentioned in s51: "express incidental power" and "implied incidental power".

The express incidental power is conferred by s51 (xxxix) and it states that the Commonwealth Parliament has power to make laws with respect to "matters incidental to the execution of any power vested by this Constitution in the Parliament". In contrast, the "implied incidental power" gives the Commonwealth the power to legislate with respect to any matter which is incidental to the main purpose of an express head of power, including marriage. According to Mills and Bagaric: (5)

  "The distinction between the express incidental power of s51(xxxix)
  and the implied incidental power was again referred to by the High
  Court in Gazzo v Comptroller of Stamps (Vic) (1981) 7 Fam LR 675 at
  680; FLC parags 91-101 per Gibbs CJ, Stephen and Aickin JJ (the
  majority). There, Gibbs CJ explained that the express incidental power
  concerns matters which are incidental to the execution of one of the
  other substantive heads of constitutional power, while the implied
  incidental power concerns matters which are incidental to the subject
  matter of a substantive head of power. Together they enable the
  parliament to make any law which is directed to the aim or object of a
  substantive head of power, and any law which is reasonably incidental
  to its complete fulfilment."

This obviously gives the Commonwealth the authority to enact any laws regulating any relationship directly or indirectly connected with the subject of marriage. In respect to the High Court doctrine of interpreting constitutional powers expansively, and also to the very nature of judicial precedent, the High Court would have to logically interpret the marriage power "generously".

Because of the High Court's "generous approach" to the interpretation of federal powers, the marriage power can certainly regulate, for instance, matters concerning the formal and essential validity of marriage, children of the marriage and their welfare, matrimonial property, etc. Laws relating to de facto relationships, both heterosexual and homosexual, also fall under the scope of the marriage power of the Commonwealth.

The marriage power, therefore, extends itself to the regulation of same-sex relationships and civil unions. It is indeed very clear that the Commonwealth Parliament might, under the marriage power and section 109 of the Constitution, enact any federal law overruling any state law which creates a quasi-marital status attracting almost the same rights and benefits as marital status. In other words, state laws which regulate de facto relationships can certainly be overruled by federal law, because to be a law with respect to marriage it is sufficient that it deals, directly or indirectly, with circumstances or things which somehow might affect the institution of marriage as it is defined by federal law.

The definition of marriage was given by Lord Penzance in Hyde v Hyde (1866) LR 1 P & D 130 as being "the voluntary union for life of one man and one woman, to the exclusion of all others". The definition is now reflected in the statutory definition of marriage that was added into the Marriage Act 1961 (Cth) in 2004. To be lawful, a marriage has to be solemnised according to the provisions of the Marriage Act 1961. Under s5 of this federal Act, "marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life". A paraphrase of this definition, informs s46(1) of the Act, must be declared by a civil marriage celebrant when celebrating a marriage:

  "Before a marriage is solemnized by or in the presence of an
  authorized celebrant, not being a minister of religion of a recognized
  denomination, the authorized celebrant shall say to the parties, in
  the presence of the witnesses, the words: 'I am duly authorized by law
  to solemnize marriages according to law. Before you are joined in
  marriage in my presence and in the presence of these witnesses, I am
  to remind you of the solemn and binding nature of the relationship
  into which you are now about to enter. Marriage, according to law in
  Australia, is the union of a man and a woman to the exclusion of all
  others, voluntarily entered into for life.'"

To the extent that an amendment to the Marriage Act 1961 might be interpreted in the light of the sections and principles of constitutional interpretation above mentioned, there is no doubt that it should be considered constitutionally valid. This obviously includes the power of the Commonwealth to introduce an amendment overruling state laws which reduce the significance of the institution of marriage by creating quasi-marital status for de facto relationships, homosexual or not.

1. A. Stewart and G. Williams, Work Choices: What the High Court Said (Sydney: Federation Press, 2007), p.10.

2. S. Ratnapala et al, Australian Constitutional Law: Commentary and Cases (Oxford University Press, 2007), p.467.

3. G.A. Moens and J. Trone, Lumb & Moens' The Constitution of the Commonwealth of Australia Annotated, Sydney, Butterworths, 2001, pp.202-03.

4. Id, pp.167-68.

5. E. Mills and M. Bagaric, Family Law, (Sydney: Butterworths, 2nd Edition, 2005), p.12.