Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share this | Link to 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.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

The Greens will not be supporting these amendments. The amendments run completely contrary to the spirit of the bill. The bill gives recognition to the fact that in the ACT and in the Northern Territory we have mature debating chambers that are able to govern the people who have elected them. For this parliament to determine in advance what those chambers may or may not legislate about reflects the kind of paternalism that this bill is seeking to redress. This bill is seeking to restore the position that exists under the Constitution. There will still be a capacity in the unamended bill for this parliament to pass a law if it considers that any territory has done anything it should not have done. That position remains and the constitutional supremacy of this parliament remains. For those reasons, we will not be supporting the amendments.

Craig Emerson (Rankin, Australian Labor Party, Minister for Trade) Share this | Link to this | Hansard source

The government's clear legal advice is that the opposition's amendments are unnecessary. It is already the case that any territory law inconsistent with Commonwealth law on marriage, just as with any other subject, would be invalid. The Commonwealth parliament also has the broadest possible power under the Constitution to make laws for the government of any territory. That is set out in section 122. The Commonwealth parliament could use this power to override any territory law, even a territory law that is not currently inconsistent, by making a new inconsistent Commonwealth law.

I would add that it is not appropriate to tack on provisions singling out the Commonwealth Marriage Act to a bill concerned with the general role of the Commonwealth executive government in territory law-making processes without very careful consideration of the specific effects and more general implications. The opposition amendments do not deal in any detail with the differences between the ACT and Northern Territory self-government acts. It is also not appropriate to tack on provisions singling out the Commonwealth Marriage Act to a bill concerned with the general role of the Commonwealth executive government in territory law-making processes. From a policy perspective, the territories bill is not concerned with marriage or any other particular area of social policy. The territories cannot make laws that are inconsistent with the Commonwealth Marriage Act or any other act. This position will not change if the territories bill is passed.

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

I do not wish to unnecessarily detain the House, but it is disappointing to hear the member for Melbourne and, in particular, the representative of the government, the Minister for Trade, reject these amendments. There is supposed to be bipartisan support from all members of the House for the traditional definition of marriage, and we are opposed to changing that definition within the Marriage Act. I would have thought that the government has had abundant experience lately to realise that some of these questions can be controversial. This question, in particular, is controversial, and there are different schools of law. Even though we would agree that the government's legal advice is correct, there are certainly others within the legal fraternity who would reject it. As I said when I introduced these amendments, they go to being abundantly cautious and making sure everybody understands what this parliament means when it passes this act and that this parliament reaffirms that we support the traditional definition of marriage.

Craig Emerson (Rankin, Australian Labor Party, Minister for Trade) Share this | Link to this | Hansard source

The contribution that has just been made by the member for Stirling highlights legitimate suspicions about the motive for this legislation. If I heard correctly, the member for Stirling asserted that this means the government does not support the Marriage Act. That is complete bunkum, rubbish, and the sort of thing you would expect from the opposition. We have now seen the real motivation for these amendments being put forward, and that is so that the opposition can go around falsely claiming that the government does not support the Marriage Act.

What we are saying is that taking on an amendment to this territories legislation—which is about the status of the territories legislation and the capacity, or otherwise, of the Commonwealth to override it—has of itself nothing to do with the Marriage Act. Let us have a debate about the Marriage Act at some time, but let us not have the motivation of the coalition in this matter being to misrepresent in the broader community the position of the government on this matter. This is general legislation about the territories, and that is what we are debating.

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

What I was saying—and the Minister for Trade might care to listen to this because he has just misrepresented the position that I put about two minutes ago—is that we believe there is some discussion within the legal fraternity about what this bill exactly means. So we are moving, out of abundant caution, to make sure that it is fully understood that this parliament reaffirms its support for the traditional definition of marriage. We understand that the Labor Party are deeply conflicted about this question. They have people who do not believe that, and they are being forced to toe the line, even though we know that there is great dissension within the Labor Party about whether they should or should not support the Marriage Act.

I am not seeking to run a scare campaign. The opposition is not seeking to run a scare campaign about any of this. We are seeking to legislate consistently so the will of this legislature remains perfectly clear. That is exactly what these amendments are trying to achieve.

Craig Emerson (Rankin, Australian Labor Party, Minister for Trade) Share this | Link to this | Hansard source

I agree that the second half of the initial contribution from the member for Stirling was related to questions in the minds of the coalition as to whether the legal advice is persuasive or not. The member for Stirling has used phrases such as an 'abundance of caution'. The advice to the government is that no such amendment is necessary. But in the second half of the contribution just now of the member for Stirling he has sought to create a debate around the Marriage Act. That says to me that the true motivation for these amendments is not the role of either a minister or the parliament in making laws or overriding laws of the territories but one thing and one thing only and that is base politics.

I now expect the coalition in my own area of Rankin will say, 'This proves that the member for Rankin does not believe in the Marriage Act.' For the record, any such claim would be false. I expect nothing more of the Liberal Party because they resort to misleading tactics. We are happy to support this legislation that has been put into the parliament today, but I will not stand here and cop the misrepresentation of motives on the part of this government in supporting this legislation. If there is in the future to be a debate about the Marriage Act, let us have a debate about the Marriage Act. This is simply another politically opportunistic manoeuvre on the part of the coalition to go around electorates and seek to misrepresent the views of various members of parliament. For the record, for the 50th time, as the member for Rankin, I consider marriage to be a union between a man and a woman as set out under the Marriage Act. That does not mean in any way, shape or form that we do not or cannot support this legislation. We do support the legislation. They are completely consistent propositions. Question put:

That the amendment (Mr Keenan's) be agreed to.

The House divided. [17:15]

(The Speaker—Mr Harry Jenkins)

Question negatived.

Bill agreed to.