Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share this | Hansard source

by leave—I move amendments (1) and (2), as circulated in my name, together:

(1) Schedule 1, item 1, page 3 (lines 4 and 5), omit the item, substitute:

1 At the end of subsection 35(2)

Add "if the enactment is inconsistent with a law of the Commonwealth. Without limiting the application of this subsection, the Assembly may not enact any law that is inconsistent with the Marriage Act 1961".

(2) Schedule 2, item 1, page 3 (lines 4 and 5), omit the item, substitute:

1 At the end of subsection 9(1)

Add "if the law or the part of the law is inconsistent with a law of the Commonwealth. Without limiting the application of this subsection, the Assembly may not enact any law that is inconsistent with the Marriage Act 1961".

The effect of the opposition amendments would be to add the words, at the end of the principal operative provision of the bill, 'if the enactment is inconsistent with a law of the Commonwealth' and to add the further sentence, 'Without limiting the application of this subsection, the Assembly may not enact any law that is inconsistent with the Marriage Act 1961'.

The purpose of the opposition's committee stage amendments is to do two things. First of all, they correct an anomaly that would appear in the bill were it to be carried in its current form—that is, under the combined effects of sections 51 and 109 of the Constitution the states may not legislate in areas reserved for the legislative power of the Commonwealth if there is an inconsistency between a Commonwealth law passed under one of the section 51 heads of power and a state law. That inconsistency can arise in one of two principal ways. There may be a direct inconsistency—for example, if there were to be a Commonwealth law passed under a section 51 head of power which provided to a certain effect and a state law on the same topic which provided to the opposite effect. That is the plainest case of inconsistency under section 109 of the Constitution, and as a result of the operation of that provision the state law would be struck down.

Very commonly a state law is found to be inconsistent with a Commonwealth law, not because of a direct inconsistency but because the Commonwealth law—to use the phrase that the High Court uses—covers the field. So if, for example, the Commonwealth were to pass a law under a section 51 head of power which was intended to be comprehensive in relation to that particular topic, then an inconsistent state law, or a state law which sought to regulate the same topic in a manner at variance from the manner in which the Commonwealth law sought to regulate the topic, would also be struck down under section 109 because the Commonwealth law would be considered to cover the field. We in the coalition consider that the Marriage Act is such a law, although I acknowledge that the proposition is controversial; and some, including Professor George Williams, have formed a view that it is not the case, particularly in relation to same-sex marriage. If this bill were to be passed in its existing form, without the qualification that we are introducing here, we would have the unusual situation that the territories would have broader legislative powers than the states, because section 109 of the Constitution applies to state laws, not territory laws. So the device of this amendment is to apply the same test to territory laws as section 109 of the Constitution imposes upon state laws.

There is controversy about the reach of the Marriage Act 1961 and, in particular, the 2004 amendments to the Marriage Act, which were introduced by the Howard government—and I might add that those amendments in 2004 were supported by the Labor Party. These amendments introduce section 88EA into the Marriage Act, which prohibited same-sex marriage.

The qualifying words of the opposition's amendments, which are really inserted out of abundant caution, are to make it perfectly clear that an inconsistency between a territory law in relation to marriage and the Marriage Act will result in the Marriage Act prevailing. The better view, as I said earlier, is that the Commonwealth Marriage Act covers the field in relation to marriage, and that is the view of most constitutional lawyers. But there is a minority view that it does not. In order to deal with the possibility that the Marriage Act does not effectively prohibit same-sex marriage, these additional words are introduced to ensure that no territory law may be inconsistent with any provision of the Marriage Act, including, in particular, though it is not set out specifically, section 88EA. So, we really believe that the House should accept these amendments as part of a belts and braces approach, one of abundant caution. I would urge the House to consider these very sensible changes.

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