Constitutional Critique

Earl Grey, famous for his family’s tea, has another claim to fame in Australia. He was the first person to achieve Julian Assange’s ambition – to be elected to an Australian Parliament while living in London, without any intention of travelling to Australia to take up the seat. To be fair to the Earl, he did not ask for this honour. In the mid-1800s, a person could be nominated without his consent, and he was.

Earl Grey’s nomination, like that of Assange, was more about making a political statement. In the 1840s, the people of the Port Phillip District of New South Wales did not like being governed from Sydney. They thought that Sydney-siders knew as much about them and their wishes as people in London. So they nominated as their candidates the Duke of Wellington, Lord Palmerston, Lord Brougham and Earl Grey, electing Earl Grey on 20 July 1848. Despite never visiting Australia, Earl Grey, who was Secretary of State for the Colonies, was a Member of the NSW Legislative Council until November 1850, when his seat was vacated due to his failure to attend a sitting. The Sydney Morning Herald criticised the ‘flagitious mockery of the Port Phillip voters’ in electing the Earl and suggested that they be whipped for trifling with the solemn duties imposed upon them by their country. But they were successful in making their point. Earl Grey responded in 1850 by the enactment of legislation to separate the Port Phillip District from New South Wales, creating the State of Victoria and permitting it to have its own Parliament.

Julian Assange’s proposed nomination for the Australian Senate is just as much a political statement and just as controversial. Unlike the 1840s, Australia now has far more rigorous laws and constitutional provisions concerning the election of candidates. Even if Assange can rely on the continuing ‘flagitious mockery’ of Victorian voters in electing him, he also has legal and constitutional barriers to surmount.

The first hurdle is the validity of his nomination. The initial problem faced by Assange was that he had lived overseas for many years and was not on the Australian electoral roll. To be nominated, a person must be at least 18 years old, an Australian citizen, and on the electoral roll or qualified to be on it. He could enrol as an ‘eligible overseas elector’, but only within three years of ceasing to reside in Australia and only if he intended to return within six years of departing. Biographical material on Assange, which may not necessarily be accurate, suggests that he ceased to reside in Australia as long ago as 2007, meaning that any such application would be out of time.

Assange’s application for enrolment is apparently based upon the fact that he returned to Australia to visit his mother in June 2010. He appears to be claiming to have ‘ceased to reside’ in Australia in 2010. There is a significant difference, however, between visiting Australia and ‘residing’ in Australia. In order to have ‘ceased to reside’ in Australia, Assange would need to show that he was actually residing in Australia in 2010. That would normally involve residence for a period (usually at least a month) and some evidence that it was his principal place of abode, not just a holiday visit. For example, when it was alleged that a Christian Democrat candidate could not fill a casual vacancy in the NSW Legislative Council because he really resided with his family in Queensland and was not validly on the NSW electoral roll, he had to show evidence that he actually lived in his rented accommodation in New South Wales, including utility bills and evidence of the movement of furniture to his new residence. It is unknown whether Assange would be able to produce such evidence.

The fact that the Electoral Commissioner ‘accepted’ his enrolment is not significant. The Electoral Commission is extremely limited in its power to reject enrolments. Section 172 of the Commonwealth Electoral Act provides that ‘a nomination shall be rejected by the officer to whom it is made if, and only if, the provisions of section 166, 167, 170 or 171 have not been complied with in relation to the nomination’. The nomination can therefore not be rejected on any other grounds. The critical provision is s 170. It provides that a nomination is not valid unless the person nominated declares that he or she is qualified under the Constitution and the laws of the Commonwealth to be elected as a Senator. Hence, if Assange made such a declaration and complied with all the other requirements for nomination set out in those sections, the Australian Electoral Commission would not be entitled to reject his nomination, even if his declaration was incorrect. This was confirmed by Justice Dawson in Sykes v Australian Electoral Commission (1993) 115 ALR 645, where he stated at 649 that the officer to whom the nomination is made is not required to determine whether the person nominated is actually qualified – only that the relevant declaration has been made.

The real question, therefore, is not whether Assange’s nomination was ‘accepted’, but only whether anyone will challenge the validity of his nomination or election in the courts on the ground that he is not qualified under the Constitution or a Commonwealth law. If so, the question of establishing his ‘residence’ will be crucial.

If Assange were elected, there are other possible grounds upon which his election might be held invalid. For example, there is a constitutional prohibition upon the election of a person who is ‘under any acknowledgment of allegiance, obedience or adherence to a foreign power’ or who is ‘entitled to the rights or privileges of a subject or a citizen of a foreign power’. It is unclear what Assange’s relationship with Ecuador is and whether it would result in a violation of this constitutional provision.

Assange’s election could be challenged within 40 days of the election by any candidate or person qualified to vote at the election. The challenge could only be brought before the Court of Disputed Returns (which is the High Court). The Electoral Commission also has the power to dispute an election. The Court would have the power to declare that he was not duly elected or that the election was void. The decision of the Court is final.

If no such challenge is made within the requisite time, the Senate may also refer any question about the qualification of a Senator to the Court of Disputed Returns. This can occur at any time within a Senator’s term.

If a court were to hold that Assange’s election was invalid, then his political party would not be entitled to choose a replacement for him. His election would be held void, resulting in a recount of votes to ascertain the person next entitled to election as a Senator. This approach was taken by the High Court in In Re Wood (1988) 167 CLR 145. Senator Wood was not an Australian citizen at the time of his election. The High Court held that he had therefore not been duly elected and that the election was void, rather than there being a casual vacancy.

If, on the other hand, Assange was validly elected but could not take up his seat for fear of arrest, then he could resign and his resignation would be treated as a casual vacancy. His seat would then be filled at a joint sitting of the Victorian Parliament by a person of the same political party. If Assange didn’t resign, but did not attend the Parliament, he would face two constitutional problems. First, s 42 of the Constitution provides that every Senator ‘shall before taking his seat make and subscribe before the Governor-General… an oath or affirmation of allegiance’. If he did not attend Parliament to make the oath, he could not ‘take up’ his seat. Further, s 20 of the Constitution states that the ‘place of a senator shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the Senate, fails to attend the Senate’. If Assange did not attend within that period, he would meet the same fate as Earl Grey, with his seat being vacated. The House of Representatives did once give leave of absence to a Member of Parliament, Mr Adair Blain (known as 'Chill'), who was elected while being held a prisoner of war during World War II. However, it is doubtful that the Senate would treat self-inflicted incarceration in the Ecuadorian Embassy to avoid arrest on the same level as being held involuntarily as a prisoner of war while serving his country.

Finally, it is worth noting that if Assange walks out the door of the Ecuadorian Embassy as an Australian Senator, this would not give him any immunity from arrest on criminal charges. While some degree of immunity protects Senators from obligations to attend court during and immediately before and after parliamentary sitting days, it does not extend to immunity from arrest on criminal charges, such as the breach of bail conditions. No Australian politician is above the law, even though some seem to regard themselves as beyond its reach. This is something that one might imagine Wiki-Leaks would applaud.

A shorter version of this post was first published in The Spectator – Australia, 20 April 2013, p vii.

The recent death in an Israeli prison of an Israeli-Australian citizen, Ben Zygier, has escalated into a multidimensional drama. Claims of spying and counter-spying, speculations about Zygier’s plans and their potential to damage Australian-Israeli relations, have multiplied. Allegations of anti-Semitic motives on the part of critics of Israel’s response face allegations of Israeli complicity in Zygier’s death.

In its latest iteration, the drama has moved beyond the particular, and reached into the policy of dual citizenship for Australians. More than one commentator has suggested that dual citizenship should be questioned and perhaps ruled out, in cases where the Australian citizen works for the secret service or even just the government of another country. Some have implied that dual citizenship as such should be reconsidered.

These are knee-jerk responses. Apart from their impracticality, they overlook a long and cautionary history surrounding citizenship laws. It was not until well after the Second World War that dual nationality was accepted by the international community, and then, in many countries, only reluctantly, and in some still not at all. Before then, embarrassments in diplomatic relations, the threat of divided allegiance in wartime, and the principle of single family citizenship were regularly advanced as reasons against permitting what was then called ‘double nationality’. This policy produced many hardships for individuals. Persons who had acquired citizenship by the accident of birth in a country that practiced the jus soli rule (for example, Britain and its Dominions until relatively recently, and the United States, still, as guaranteed by the Fourteenth Amendment) found themselves unable to acquire the citizenship of the country in which they lived, and, as aliens, were consequently denied the rights and security of abode that come with citizenship. Refugees, driven by crisis or persecution, were unable to take the citizenship of their country of refuge or were forced to abandon their former citizenship and therefore, in many cases, their right eventually to return home.

Under the laws of virtually every country in the world (including Australia and, notwithstanding its apparent constitutional guarantee, the United States), between the mid-nineteen century and the mid-twentieth century, women who married foreign men were automatically stripped of their citizenship, in part because it was assumed that they would acquire their husband’s citizenship, and dual nationality was not permitted. Where new citizenship was not acquired, the women were rendered stateless - one of the most pitiable experiences a human being can suffer. Countless other hardships were produced, for example, for women who were deserted by their husband, who, even in their own country, could not regain their former citizenship and, thus, were condemned to live as aliens. The decades-long campaign against these laws was finally successful, with the UN Convention on the Nationality of Married Women in 1958, but its success depended in significant part on the willingness of countries to accept dual nationality.

We recognise, today, that dual nationality is a matter of considerable convenience in the lives of those many who live and work in more than one country, that it facilitates commerce and is an core aspect of globalisation. We also need to remember that the denial of dual citizenship would have commensurable negative consequences, and would create problems going well beyond the scale of anything at issue in the Zygier case.

The constitutional framework needs to be understood. Australian citizenship is not guaranteed or defined under the Constitution, but the Commonwealth parliament has the power, under the ‘Naturalization and aliens’ provision (section 51 (xxix) ) to pass laws with respect to the acquisition of citizenship and governing the conditions on which it can be held. Australia did not permit dual nationality until 2002 (much later than most ‘western’ countries). Before then, an Australian who was naturalized in another country (or who automatically acquired a foreign citizenship, for example, by marriage) lost their Australian citizenship. Those who acquired Australian citizenship by naturalization were, however, able to hold more than one. While the Australian naturalization oath for a time required ‘new Australians’ to renounce their former nationality, it had no such legal effect. Australia could not control whether the laws of other countries did or did not permit their citizens to hold another nationality. The naturalization oath today requires a pledge of loyalty to ‘Australia and its people’; that loyalty does not have to be exclusive, nor can Australia, in practice, require it to be.

Those who are currently suggesting that Australia should reconsider its approval of dual citizenship overlook the fact that it can be acquired by naturalization, as well as by birth and parentage. It would be a dramatic, and internationally-questionable step to offer naturalization only to those immigrants who had, prior to the ceremony, legally renounced their former citizenship, rendering themselves, for a time at least, stateless. It would also be irrational to deny dual nationality to Australians by birth or parentage for fear of hostile allegiances, but not to those who acquired Australian nationality by naturalization. No one, surely, is arguing that naturalization should be prohibited.

The Constitution does include a provision in which issues of dual nationality and allegiance are addressed. Section 44 (i) disentitles a person who is ‘under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen … of a foreign power’ from standing as a candidate for either House of federal Parliament. The High Court held in Sykes v Cleary in 1992, that this extended to dual citizens and had the purpose, in the words of Justice Deane, of ‘prevent[ing] persons with foreign loyalties or obligations from being members of the Australian Parliament.’ The 1890s Federal Convention debates reveal that the concern of the framers of the Constitution was primarily with the possibility that Members of Parliament might, during wartime, hold loyalties to an enemy state. The High Court concluded that dual citizens wishing to stand for Parliament needed to take every available step to divest themselves of their non-Australian citizenship.

This may be hard on individuals who stand but are not successful, and who find themselves, thereafter, deprived of the second (or more) citizenship they once held. But, it is limited and proportionate, and serves a clearly-defined purpose. Whatever the hardship, it can be assumed that the prospect of a seat in Parliament has been weighed against the loss of citizenship status. But, in no case, does the Constitution force an individual to renounce his or her citizenship for other reasons. Nor does it require or even assume a policy of single Australian nationality or a demonstration of exclusive allegiance. This, too, should be remembered by those who are currently over-excited by the citizenship implications of the Zygier affair.

The storm of protest that greeted the Commonwealth’s Exposure Draft of the Human Rights and Anti-Discrimination Bill last month was just the latest affirmation that rights instruments, whatever their form, are inherently controversial. We tend to think of Americans and their Bill of Rights as joined at the hip, but let’s not forget that the U.S. Constitution’s framers decided against one in 1787, setting off an intense political debate before the first ten amendments were ratified in 1791. More than two centuries later, bills of rights and controversy still go together. And so it has proved in the United Kingdom, where, just before Christmas, the Commission on a Bill of Rights released its much-anticipated report: two volumes, entitled 'A UK Bill of Rights? The Choice Before Us.'

The appointment of the Commission in March 2011, ten months after the election of the Conservative – Liberal Democrat coalition government, followed a history of inconclusive inquiries and official reports: a Labour Green Paper in 2007 which proposed developing a British statement of values and a British ‘Bill of Rights and Duties’; an all party parliamentary Joint Committee on Human Rights whose report in 2008 was entitled 'A Bill of Rights for the UK?'; a second Green Paper, in 2009, on ‘Rights and Responsibilities.’ All were careful and dispassionate in tone, but in the background loomed a long-running, angry debate over the respective rights of prisoners, accused persons, asylum seekers, terrorist suspects and members of minorities, against the rights of the general public. In simple terms, the antagonists saw each other as either too soft or too hard on rights, as bleeding-heart liberals or cruel-hearted conservatives. The UK Human Rights Act (1998), the European Convention on Human Rights and the rulings of Strasbourg provided the libretto.

The Conservative Party’s 2010 Election Manifesto had included a pledge: ‘To protect our freedoms from State encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.’ But the realities of coalition with the Liberal Democrats saw the Commission’s terms of reference confined to investigating the creation of a UK Bill which incorporated and built on the European Convention, while examining the operation of the Convention and consulting widely (including with the devolved governments) and considering ways of promoting a better public understanding of Britain’s rights obligation. Whether the existing Human Rights Act should be jettisoned was a secondary consideration.

In the eyes of many, the task was doomed from the start. The Chair, Sir Leigh Lewis, alone was a self-declared neutral, but the eight commissioners, appointed by the Minister for Justice and the Deputy Prime Minister, personified the lines of division: variously, champions of UK parliamentary sovereignty or the European Court, universal human rights or distinct national rights, together on the same platform. At times at least, each side appeared to believe that the other was getting the more sympathetic hearing. One of the commissioners resigned in early 2012, publicly claiming that the goal of repatriating rights from Europe to the UK parliament had been sidelined. Two members, Helena Kennedy and Philippe Sands, wrote a minority report, ‘In Defence of Rights’, which they re-published in the London Review of Books in January this year, claiming the opposite.

The Commission’s Report begins ominously, with the admission that, unlike many government commissions, the members already had ‘well defined views on the protection of fundamental rights.’ A tone of weariness pervades what follows: two volumes of summaries of conflicting views and surveys of how things are done in other countries. It comes as no surprise that the sole decision was to delay deciding. The impact on the devolved governments of any changes, it was agreed, needed further consideration and nothing could be done before the Scottish independence referendum in 2014. After that, a Constitutional Convention should be held. The Commission itself was wound up. The Report’s title captured the moment: no conclusions, only 'choices', and these remained to be made.

The likelihood that time and the referendum result will blur the lines of disagreement seems small. The minority report’s re-publication was accompanied by its authors’ observation that the circumstances of the Commission’s appointment ‘were not auspicious’; the composition (unimaginable in an Australian analogue) – all white, all men except for Kennedy herself, and ‘almost all lawyers and London-based’ – had undermined its legitimacy from the start. The conservative government, Kennedy and Sands wrote bitterly, had always been committed to ‘tearing up’ the UK Human Rights Act, which many Tories saw as ‘little more than a charter for foreign terrorists and local criminals.’

The Report itself is more courteous. The commissioners, it notes, had treated each other’s views with respect, and their most significant source of disagreement was over how ‘creative’ the courts should be in applying existing rights (not a small disagreement, it must be said). Nevertheless, it regretted that public debate had too often been characterised by ‘polarised and sometimes exaggerated polemic’; cases involving extraditions or deportations had attracted particularly high levels of media attention; ‘stereotypes and caricatures’ abounded. In the Report’s melancholic words: ‘Into such waters was the Commission launched.’

The sense of déjà vu is strong, at least for those who took part in Australia’s National Human Rights Consultation and the debate following its 2009 proposal that the Commonwealth should adopt a UK style Human Rights Act. The only real surprise was the relatively small number of ‘substantive’ submissions received by the Commission (around 1,000, out of a population of more than 63 million). Perhaps, however, rather than lack of interest, this may have indicated the complexities involved. Among those who responded to the public consultations, some thought that the UK Human Rights Act should not change because they feared getting something worse; others because they were happy with it; some thought it should be amended to reduce the rights it protects and others to enlarge them; still others thought a British Bill of Rights should replace it for similarly negative or positive reasons; some wanted the Act, or a new Bill, to be supplemented with a special Bill for Northern Ireland, and so on. The permutations were exhausting even to a Bill of Rights junkie.

In the end, the schisms seemed unbridgeable: between those who wanted more justiciable and legally-enforceable rights (socio-economic rights, in particular, such as education and housing) or more powerful judicial review, and those who wanted the courts to play a more restricted role in rights enforcement or to butt out altogether; between those who have faith in the courts and those who have faith in parliamentary processes; between those who wanted greater internationalisation, and those who wanted less.

Three ‘lessons’ for Australians emerge. First, public confusion about what’s at stake in adopting or declining a national bill of rights happens in other countries too. The first task of any government wanting to understand why ‘stereotypes and caricatures’ abound is to recognise this. It was evident to me, as an outsider attending the Charter 88/IPPR Constitutional Convention in Manchester back in 1991 (at which a Bill of Rights was promoted as a panacea for virtually all of Britain’s social ills), that aspirations and legal capacity are not comfortable partners. Then, during a sabbatical semester in London in 2009, as well as on my many visits over the years, I learned that ‘ordinary’ Britons – even well-educated ones - do not understand, for example, the precise differences between the UK Human Rights Act and the European Convention; between the European Union and the Council of Europe; between judicial review of legislation and judicial enforcement of laws; between international law and foreign law.

Analogous confusions can be found in Australia, although there are also important contextual differences. Unlike in Britain, where it has happened many times, Australia has never experienced a direct terrorist attack; Australian law is not subject to the supervision of an extra-territorial court; it is also geographically more isolated. The stakes are higher and the fear more present in Britain. It would be easy to overlook this in assessing the public mind or taking a position on what Kennedy and Sands call the ‘delusional idyll’ of an earlier age of national sovereignty.

Secondly, debates about rights are complicated, because the issues themselves are complicated. Rights, as the famous expression goes, ‘collide’, and so do views about their protection. No one should be surprised. One of the virtues of a democratic system is its encouragement of alternative perspectives and debate. While the issue of whether to renovate or replace the UK Human Rights Act needs to be settled at some time, the UK Commission should celebrate the diversity of views it drew forth (as Australia’s parallel debates have done), rather than regret it.

Thirdly, all those in Australia who, during the debate on the proposed Human Rights Act, worried about our ‘pariah’ status and lamented that Australia, alone in the democratic world, lacked an entrenched bill of rights, should take heart. The British feel similarly about themselves! Despite its long tradition of parliamentary democracy, it sees itself – so we learn from the Report – as standing alone among the democracies without a written national constitution in which rights can be entrenched. Even Australia comes out clean in comparison. Indeed, Australia’s lacuna is scarcely noticeable, at least to the British. Australia is barely on the radar. The Commission’s Report contains a lengthy survey of the constitutions of democratic countries and their rights protection regimes. A team of top UK Post-Graduate students, we learn, was enlisted to help with the relevant research. They would have done better to shoot off a couple of emails. The survey of our constitutional rights is confused and incomplete, and it is almost amusing to find that Australia’s Constitution Act is dated 1960 – not just once, as might happen with a typo, but twice, clearly and unambiguously. If we are fretting about how the world sees us, we can relax. Even the country whose parliament passed our Constitution Act in 1900, hasn't noticed.

While royal babies largely fall within the domain of gossip magazines and ‘celebrity’-worship, the impending birth of a child to the Duke and Duchess of Cambridge has also given birth to fascinating constitutional debates in the various Realms (being the countries of which Queen Elizabeth II is Sovereign). Agreement to change the rules of succession to the throne was relatively easily reached, in principle, in Perth at CHOGM in October 2011. Implementing that agreement has proved vastly more difficult. In Australia, Queensland has objected to the Commonwealth’s proposed legislation, not because it objects to the potential outcome in relation to royal succession, but because it is concerned that such a law will subordinate the State Crown to Commonwealth control.

The Canadian Bill

Canada, too, has its own federal problems with Quebec. The way it has sought to resolve them is, to a constitutional lawyer, quite bizarre. The Canadian approach appears to be either constitutionally invalid (purporting to return Canada’s Constitution to a pre-patriation position) or completely ineffective. Instead of enacting changes to the law of succession as it applies in relation to the Crown of Canada, it has instead introduced a Bill which merely assents to the British Succession to the Crown Bill 2013, as if the British can still legislate in relation to Canadian constitutional arrangements. Not even the British would still purport to have the power to do this. The Explanatory Notes to the British Bill make clear that it only applies to the United Kingdom, British Crown Dependencies and British Overseas Territories. It does not purport to apply to any other Realm.

The Succession to the Throne Bill 2013 (Canada) has only one substantive provision, which states:

The alteration in the law touching the Succession to the Throne set out in the bill laid before the Parliament of the United Kingdom and entitled A Bill to Make succession to the Crown not depend on gender; to make provision about Royal Marriages; and for connected purposes is assented to.

Hence, all that the Canadian Bill appears to do is to agree to a change in the law of succession in relation to the British Crown that does not in any way affect, or purport to affect, the succession to the Crown of Canada. The consequence would be that if the eldest child of the Duke and Duchess of Cambridge was a girl and a later child was a boy, the girl would become Queen of the United Kingdom and the boy would become King of Canada (assuming that neither jurisdiction had become a republic by that time).

Even more strange is the fact that the Canadian Government contends that this Canadian Bill, assenting to the alteration in the law made by the UK Bill, would have the effect of changing succession to the Crown of Canada. This is despite the fact that the UK Bill does not purport to apply to Canada and that s 2 of the Canada Act 1982 (UK) expressly provides that UK legislation can no longer apply in relation to Canada.

The most plausible argument that could be made to support this outcome would be that the Canadian Constitution requires that the person who is Sovereign of the United Kingdom be the Sovereign of Canada. Such an argument might have been based upon s 2 of the British North America Act 1867 (Imp) which previously stated that the provisions of that Act referring to the Queen extended to ‘the Heirs and Successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland’. That provision was repealed, however, in 1893. The equivalent provision remains as covering clause 2 of the Commonwealth of Australia Constitution Act 1900 (Imp). Nonetheless, three Justices of the High Court of Australia, in the case of Sue v Hill (1999) 199 CLR 462, [93], rejected the notion that this meant that any change in the British laws of succession would affect the succession to the Australian Crown. Chief Justice Gleeson and Justices Gummow and Hayne observed that only Australian legislation could change the rules of succession to the throne with respect to Australia and that a change to the British law could have no effect in Australia since s 1 of the Australia Acts 1986 (UK) and (Cth) came into force. Section 1 of the Australia Acts states that no Act of the Parliament of the United Kingdom shall extend, or be deemed to extend, as part of the law of Australia. Likewise, s 2 of the Canada Act 1982 provides:

No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law.

It would therefore seem to be abundantly clear that a Canadian law that simply ‘assents’ to a British law that changes succession to the British throne, does not and cannot affect succession to the throne of Canada.

Canada and the role of the Provinces in constitutional amendment

So why have the Canadians taken this course and on what conceivable basis could it be argued to be effective? The ‘why’ is pretty easy to identify – fear of dealing with the Provinces. Section 41 of the Constitution Act 1982 (Can) states that an amendment to the Constitution of Canada in relation to ‘the office of the Queen’ can only be made by the proclamation of the Governor-General where authorized by resolutions of the Canadian Senate, the Canadian House of Commons and the legislative assembly of each Province. If s 41 applied to any Canadian legislation changing the rules of succession to the Canadian throne, resolutions of the legislative assembly in each Province, including Quebec, would therefore be required. While in Australia, it is currently proposed that each State Parliament will pass legislation requesting the enactment of Commonwealth legislation concerning succession to the Australian throne, the Canadian Government has balked at this prospect.

It is not overwhelmingly clear that s 41 would apply to Canadian legislation concerning succession to the Canadian throne. This is because it is not clear whether (a) such legislation would be an amendment to the ‘Constitution’; and (b) whether such legislation relates to the ‘office of the Queen’. [For a more detailed discussion in an article from which this blog is drawn, see: A Twomey, ‘Changing the rules of succession to the throne’ [2011] Public Law 378.]

The only judicial authority on the subject is that of the Ontario Superior Court of Justice in O’Donohue v Canada (2003) 109 CRR (2d) 1, which concerned a challenge to the law of succession to the throne on Charter grounds. Justice Rouleau decided that the matter was not justiciable because although the rules of succession were not part of the written Constitution of Canada, they were ‘part of the unwritten or unexpressed constitution’ and were therefore not subject to the Charter. Justice Rouleau also suggested at [33] that if the rules of succession with respect to the Queen of Canada were to be changed in Canada (by a court or Parliament) this would ‘bring about a fundamental change in the office of the Queen without securing the authorizations required pursuant to s 41 of the Constitution Act 1982.’ While these statements were merely obiter dicta, they are enough to suggest that it is plausible that s 41 might require the agreement of all Provinces to changes to the law of succession to the Crown of Canada, although there are also good arguments for the opposite view.

Canada and the Statute of Westminster

In order to avoid facing that federal problem, the Canadian Government has instead reverted to the position prior to the patriation of the Canadian Constitution when the United Kingdom could still legislate for Canada.

Prior to the enactment of the Statute of Westminster in 1931, the United Kingdom Parliament had full power to legislate in a manner that bound its Dominions (including Australia and Canada) by laws of paramount force. Section 2 of the Statute of Westminster removed the ‘paramount force’ of such laws by permitting their local amendment or repeal and s 4 limited the future extension of British laws to the Dominions to cases where the Dominion had requested and consented to such an enactment. Section 4 provided:

No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.

While sections 2 and 4 immediately applied to Canada when the Statute of Westminster came into force, they did not apply to Australia, New Zealand or Newfoundland until adopted by the Parliament of the relevant Dominion. Because of this disparity in application, the recitals in the preamble to the Statute also provided in paragraphs 2 and 3 that:

it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.

…it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion.

As Wheare has noted, these recitals and provisions declare three conventions and a legal requirement. These are as follows:

1. Dominion legislation that alters the law touching succession to the throne requires the assent of the Parliaments of the United Kingdom and other Dominions (preamble, paragraph 2 - convention);

2. United Kingdom legislation that alters the law touching succession to the throne, whether or not it is intended to extend as part of the law of the Dominions, requires the assent of the Parliaments of the other Dominions (preamble, paragraph 2 - convention);

3. United Kingdom legislation that alters the law touching succession to the throne and which is intended to extend to any Dominion, as part of its law, requires the request and consent of that Dominion (preamble paragraph 3 - convention); and

4. United Kingdom legislation that alters the law touching succession to the throne shall not extend, or be deemed to extend, to a Dominion as part of its law, unless it is expressly declared in that Act that the Dominion has requested, and consented to, its enactment (section 4 – legal requirement).

Underlying these interconnected provisions is the assumption that a Dominion may itself change the rules of succession to its own throne (because it could now legislate in a manner that was contrary to British laws, such as the Act of Settlement, that had previously applied by paramount force). If so, the Dominion should, by convention (but not as a legal requirement), seek the assent of the UK Parliament and other Dominion Parliaments. Equally, the UK Parliament could seek to change the law of succession with respect to the British throne only, in which case it should seek the assent of the Dominion Parliament. However, the UK Parliament could also change the law of succession so that it also applied to all the other Dominions as well as the United Kingdom. In those cases where s 4 of the Statute of Westminster had not yet been adopted, the third paragraph of the preamble set out a convention that it would only do so at the request and with the consent of each relevant Dominion. Where s 4 did apply, there was a legal requirement that such an Act not be deemed to extend to a Dominion as part of its law unless it was expressly declared in the Act that the Dominion has requested and consented to its enactment.

The abdication of Edward VIII in 1936 and the need to exclude him and any children he might have had from the line of succession, meant that these conventions and laws had to be put in practice. Canada, New Zealand and Australia sought to have the British law extend to them as part of their own laws. The Statute of Westminster applied in full to Canada, so conventions 2 and 3 and legal requirement 4 applied in its case. The consent and request of Canada to the enactment of His Majesty’s Declaration of Abdication Act 1936 was given by way of executive order in council on 10 December 1936 and recorded in the preamble to that Act (satisfying convention 3 and legal requirement 4). In order to meet the parliamentary assent requirement of convention 2, the Canadian Parliament later enacted the Succession to the Throne Act 1937 (Canada). It provided that:

The alteration in the law touching the Succession to the Throne set forth in the Act of the Parliament of the United Kingdom intituled “His Majesty’s Declaration of Abdication Act, 1936” is hereby assented to.

It is this provision upon which the 2013 Canadian Bill is modeled, despite it only forming a negligible part of Canada’s response to the 1936 abdication and despite subsequent constitutional changes, including the 1982 repatriation of the Canadian Constitution.

Section 4 of the Statute of Westminster had not yet been adopted by Australia or New Zealand in 1936, so it was not necessary to gain and record their request and consent for the UK law to extend to them. It extended to Australia and New Zealand of its own force without any further legal steps. Assent, under convention 2, and its mention in the preamble to His Majesty’s Declaration of Abdication Act 1936 (UK), was regarded by R T E Latham as a ‘matter of courtesy’. Australia’s Parliament was the only Dominion Parliament to indicate its assent prior to the enactment of His Majesty’s Declaration of Abdication Act. It did so, however, by way of resolutions of each House, rather than legislation, because of doubts as to whether there was a constitutional head of power that would support the enactment of legislation. New Zealand indicated its assent in advance by way of executive act, but later passed a parliamentary resolution in each House which ‘ratified and confirmed’ that assent for the purposes of convention 2. It appears that neither Dominion formally requested and consented to the enactment of the British Act, in accordance with convention 3 (although this might be implied from its assent).

As His Majesty’s Declaration of Abdication Act 1936 (UK) extended as part of the law of Canada, Australia and New Zealand as well as the United Kingdom, the effective date of the abdication in those four countries was the date of commencement of that Act, 11 December 1936, rather than 10 December, which was the day on which Edward VIII signed his declaration of abdication. The other Dominions of South Africa and the Irish Free State did not wish the British Act to apply to them. South Africa gave an initial executive ‘assent’ prior to the enactment of the British law, but then later enacted its own law, His Majesty Edward VIII’s Declaration of Abdication Act 1937. It gave parliamentary assent to the British law (in accordance with convention 2), but then enacted the changes itself as part of South African law and dated the abdication back to 10 December, being the day on which Edward VIII signed the instrument of abdication. The Irish Free State did not assent to the British Act at all. It enacted its own law, the Executive Authority (External Relations) Act 1936, implementing the abdication and changing the laws of succession to the throne on 12 December 1936. The abdication therefore took effect in the Irish Free State on 12 December 1936.

The consequence was that there were different Kings in different Dominions during the period 10-12 December 1936 marking the divisibility of the Crown in the personal, as well as the political, sense. As Wheare described it, the Commonwealth was ‘partly dismembered’ during this period.

The relevance of the Statute of Westminster today and the effectiveness of the Canadian Bill

The important lesson for the purposes of the current Canadian exercise is that the parliamentary assent, given pursuant to convention 2, only had the effect of making the change in royal succession applicable to a Dominion where that Dominion was still subject to the paramount legislative power of the Westminster Parliament (because it had not yet adopted s 4 of the Statute of Westminster). In the case of South Africa, to which the Statute of Westminster fully applied, assent under paragraph 2 of the preamble did not apply the British law to South Africa or in any way affect succession to the Crown of South Africa. It was simply a matter of courtesy. South Africa had to enact its own law to apply the change to South Africa (as it did). Alternatively, it could have taken the Canadian path of requesting and consenting to the application of the British law to it, as Canada did by way of executive order-in council. This was possible because of the application of s 4 of the Statute of Westminster.

The history of the Statute of Westminster and its application clearly shows that the proposed 2013 approach by the Canadian Parliament of simply assenting to the British Bill will not have the effect of applying the relevant change to the Crown of Canada.

Moreover, s 4 of the Statute of Westminster has now been repealed with respect to Canada (Constitution Act 1982 (Canada), s 53 and Schedule, item 17) and the United Kingdom can no longer legislate for Canada (Canada Act 1982, s 2). It is therefore extremely difficult to see how the UK changes to the rules of succession can apply with respect to the Canadian Crown and how the Succession to the Throne Act 2013 (Can) could achieve that outcome, unless Canada was to revert to its pre-patriation and pre-Statute of Westminster position of being subject to British laws of paramount force.

Conclusion

It is likely that the Canadian Government took the gamble of this approach in order to avoid the hassle of obtaining the agreement of the Provinces while banking upon the likelihood that no one would have the standing or motive to challenge it. Moreover, if the Duchess of Cambridge has a first-born son, it will avoid the problem of having a female monarch of the United Kingdom and a younger brother who becomes the monarch of Canada. Hence, the chances of getting by with such a constitutionally shoddy arrangement are reasonable.

Nonetheless, it shows a disappointing lack of understanding of the Crown and its divisible nature and a willingness on the part of Canadian politicians to sacrifice Canadian independence to avoid having to engage with the Provinces.

(An edited version of this entry appears in The Conversation, 24/1/13)

Australia lacks a national bill of rights and the many attempts of Labor Governments over the years to adopt one – whether statutory or constitutional - have failed. But Australia already has a raft of human rights laws, including many anti-discrimination Acts. The Gillard government has now turned to these Acts, proposing their consolidation into a single Human Rights and Anti-Discrimination Bill. The government’s stated aim is to harmonise and simplify the law, and to facilitate compliance. That the existing Acts have created a complicated, sometimes inconsistent, rights landscape is not open to doubt. But, many who campaigned in 2009-10 against the Human Rights Act that was proposed by the National Human Rights Consultation Committee and reluctantly abandoned by the government, will be scrutinising this new Bill for signs that it is intended as a surrogate.

The Bill, indeed, goes further than simply bringing the existing Acts together. No one should be surprised that it is already deeply controversial. Among the hundreds of submissions on the ‘Exposure Draft’ that have been received by the Senate’s Legal and Constitutional Affairs Committee, many have raised objections, including about the Bill’s constitutional validity.

The legal issues are complex, but there is some relief, at least, for those who fear a ‘back-door’ bill of rights. Debate about the desirability of a bill of rights is rarely about whether ‘rights’ should be protected. Mostly, it is about the recognition of particular rights, and, in particular, about who should enforce them. Bill of rights opponents (like myself) rarely oppose the legal protection of rights but, rather, resist the idea of rights-based judicial review; that is to say, the power of courts to determine whether legislation, as such, is rights-compliant. They believe that parliament should make the law without courts looking over its shoulder, and that the courts should enforce the law, and not decline to enforce it or declare it ‘incompatible’, because, in the judges’ opinion, it does not protect rights. Contentious legislation should be subject to political debate and, if it is objectionable, ultimately ‘sentenced’ at the ballot box.

One of the main objections to the Human Rights and Anti-Discrimination Bill is that it extends the scope of rights protection, creating, in effect, new rights. But at least it does not attempt to create a ‘superstatute’ - an Act that ‘trumps’ all other Acts. The Constitution makes Commonwealth laws override inconsistent State laws, but a ‘superstatute’ would override all other Acts or laws, including those passed by the Commonwealth parliament itself. It would effectively ‘constitutionalise’ rights, making all other laws subordinate to it, and thus subject to a judicial determination about their conformity. The creation of such an Act was probably tempting. Unique among the anti-discrimination Acts, the Racial Discrimination Act (1975) includes a provision that makes the Act prevail over all other Australian laws. The government might have generalised this provision, importing it from the Racial Discrimination Act, and applying it to all types of discrimination. It has not done so. It has included a ‘trumping’ provision in the Bill, but, as before, this is confined to laws concerning racial equality.

So, whatever the government’s intention, the Bill is not quasi-constitutional, at least not in this sense. But is it constitutionally valid? Constitutional invalidity is the ultimate trump card of a law’s opponents. Every Commonwealth Act must rest on a constitutional power. The current anti-discrimination Acts rely on the Constitution’s ‘external affairs’ power which, among other things, permits the parliament to incorporate Australia’s international treaty or convention obligations into legislation. The Bill makes it clear that this is its ‘main constitutional basis’. (It names several supplementary powers, but these are unlikely to be controversial.) The recitation of constitutional powers, however, does not make an Act constitutionally valid.

Law Professors, Nicholas Aroney and Patrick Parkinson, believe the Bill gives the Commonwealth powers that exceed what the Constitution grants. The Act’s provisions extend to persons in non-official roles (including volunteers) and even in informal settings, under the broad heading of ‘public life’. Additionally, discrimination can be claimed because a person, in public life, feels insulted or offended. School yard bullies, rude customers, gossiping employees, abusive sporting spectators, Aroney and Parkinson suggest, may become liable. But, as they know, this is not a constitutional argument.

The Bill, they add, goes beyond the terms of the human rights conventions upon which the parliament relies. Those conventions target particular ‘vertical’ conduct: that of employers, providers of services, and so on, people in positions of power. They do not require, or authorise, the regulation of all ‘public life’. Furthermore, Aroney and Parkinson say, the Bill ‘cherry-picks’ among obligations, protecting certain rights over others, whereas the conventions require implementation, and balancing, of all rights. The Bill also breaches the Constitution’s freedom of political communication, by making political opinion that offends (in a work context) a ground for alleging discrimination. (This particular argument has attracted the greatest attention in the media, and made odd bedfellows of critics across the political spectrum.) Additionally, the Bill gives excessive power to the Commonwealth, depriving the States of their constitutionally protected sphere of power.

So, are Aroney and Parkinson right? Is the Bill unconstitutional?

The High Court has overseen a significant expansion of the external affairs power over the years. Few limitations now surround what the parliament can do with this power, so long as the law in question concerns a geographically external matter. International conventions are unquestionably ‘external.’ But adherence to a convention must be bona fides; that is, not merely an excuse for expanding Commonwealth power. The latter, however, is almost impossible to demonstrate, and no Act has been struck down under that test. Furthermore, although the High Court has questioned the validity of laws relying on vague and open-ended international aspirations, it has rejected claims that all of a convention’s obligations must be included in an Australian Act or that the Act must precisely reflect the convention’s terms. Still, an Act must be reasonably appropriate and adapted to, or in conformity with, the convention upon which it relies. Aroney and Parkinson write that parts of the Bill ‘rely upon tenuous extrapolations from the texts’ of international treaties; if the Court agreed, these parts, at least, might be in doubt. The Court, however, has been fairly deferential to the parliament in identifying conformity to a convention, and in allowing the parliament to decide the manner of implementing international obligations.

International human rights conventions are not the only aspect of the external affairs power upon which the Bill relies. The Bill also states that the Act relates to ‘matters of international concern’, and ‘matters external to Australia’. These expressions are drawn from cases where legislation has been held to be valid, notwithstanding the absence of a relevant international instrument. Australia’s law that criminalises ‘sex tourism’, for example, is valid under these tests. But it will be harder to demonstrate that the regulation of Australian conduct in ‘public life’ is a matter of international concern. Again, however, no law has yet been struck down on this ground.

The current case law, it must be said, is not highly encouraging for the Aroney and Parkinson argument. They themselves describe the chance of success only as ‘not weak’. On the other hand, no constitutional power is entirely open-ended. The argument that a law giving effect to a convention cannot stray too far from the convention’s terms has a reasonable chance of success (the federalism argument is probably weaker). In the past, after decades of expansion in other constitutional powers, the Court has drawn a line. The external affairs power may now be ripe for line-drawing.

In contrast, the freedom of political communication argument is relatively strong, since the court has previously ruled against laws that inhibited political speech, even though the latter was intentionally offensive. But this would only result in the ‘severing’ or removal of the political opinion offence section from the Bill. Unless the external affairs argument succeeded, the rest would remain.

The current Court is difficult to predict. Not only has it recently enjoyed two new appointments, its record is mixed. In the recent past, it has given expanded application to the Constitution’s rights provisions. In the 2012 Schools Chaplains case, it reined in Commonwealth executive power. But, in the same year, in the tobacco plain packaging case, it rejected the argument for expanding property rights and the consequential restriction of Commonwealth power.

In any case, constitutional challenges are uncertain, time-consuming, and costly. Aroney and Parkinson make the valid point that many claims of discrimination are best handled outside the law. The same should apply to this Bill. The Bill clearly goes too far in subjecting non-coercive conduct to the courts (or the alternative dispute resolution table). Even the Australian Human Rights Commission questions the ‘offend or insult’ discrimination ground. The Attorney-General should take note of public opinion, amend the Bill, and not wait for a legal challenge. Political common sense is always preferable to litigation; it should prevail.

CRU Associate, LUKE BECK, has contributed the following post on the ramifications of the Williams case on school chaplains for the use of military chaplains by the Australian Defence Force:

You have probably heard of security contractors working alongside conventional military personnel in war zones. Well, you may also soon hear of religious contractors working with military personnel.

At the moment, the Australian Defence Force employs chaplains. They are commissioned officers of the Army, the Royal Australian Navy or the Royal Australian Air Force. According to the Defence Jobs website their work includes religious ministry, pastoral care, character training and administration and staff duties.

ADF chaplains are currently on deployment in places like Afghanistan. They obviously have a much tougher job than school chaplains do

There is also an important constitutional difference between ADF chaplains and school chaplains.

In the recent School Chaplains Case, the High Court unanimously found that the National School Chaplaincy Program did not violate section 116 – the religious freedom provision – of the Constitution. It did, however, strike down the program on the basis that it was not supported by any legislation. Parliament immediately sought to overcome this ruling by passing legislation.

If school chaplains are constitutionally okay in terms of s 116 then ADF chaplains must be okay too, right? Well, no.

The ‘religious tests clause’ of section 116 of the Constitution – which was the clause in issue in the School Chaplains Case – states that ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’ The High Court found that the school chaplains did not hold an office under the Commonwealth and therefore the religious tests clause did not apply.

In the School Chaplains Case, it was a case of government outsourcing. The Commonwealth paid its money to chaplaincy provider organisations. Those organisations employed chaplains and deployed them to schools. The Commonwealth had no direct relationship with the chaplains. The High Court said this meant the school chaplains did not hold an office under the Commonwealth.

It is a very different situation with ADF chaplains. They are members of the ADF just like all other military officers. They are appointed and employed directly by the Commonwealth. This would suggest that ADF chaplains hold an office under the Commonwealth.

The key question is whether ADF chaplains are subject to a religious test. In other words, is there some sort of religious selection criteria, entry requirement or condition of employment that must be met in order to become an ADF chaplain?

The answer is yes. The Defence (Personnel) Regulations 2002 set out who may be appointed as a chaplain in the ADF. The regulations say that a person must not be appointed unless ‘the person is a member of a church or faith group approved by the Religious Advisory Committee to the [ADF]’.

The Army is currently looking for chaplains. The Defence Jobs website says that a would-be chaplain in the Army must:

“Be from an endorsed denomination or faith group represented within the current religious diversity of Army personnel. These denominations are currently the Anglican Church, Catholic Church, Uniting Church, Presbyterian Church, Baptist Union of Australia, Lutheran Church of Australia, Churches of Christ, Salvation Army and Council of Australian Jewry.”

In other words, if you don’t belong to any of these religious groups there is no point in applying because you won’t get the job; you are simply not eligible.

ADF chaplains therefore appear to be unconstitutional. Or more specifically, the selection criteria for ADF chaplains are invalid because they impose a religious test for Commonwealth office.

Those criteria appear to be central to the purpose of the ADF having chaplains. The ADF wants to ensure that the religious affiliations of its chaplains mirror the religious affiliations of the ADF personnel to whom they will be providing services. As the Defence Jobs website says:

“The denominational role of the Army chaplain is to provide opportunity for Army personnel to practice their chosen religion by acts of public worship in a manner to which they are accustomed and as conveniently as can be arranged, both in peace and war.”

Simply changing the selection criteria is therefore not necessarily a workable solution to the constitutional problem.

But outsourcing chaplaincy services may well be a workable solution. The Commonwealth can get around the religious tests clause through outsourcing – the High Court said so in the School Chaplains Case.
Whether ADF chaplains get their constitutional marching orders any time soon depends on someone raising the matter in the High Court (or the Commonwealth unilaterally deciding to make changes, which seems a bit unlikely).

Luke Beck

While a Tasmanian proposal to introduce same-sex marriage was defeated in the Tasmanian Parliament, other States are considering introducing bills on the subject. In doing so, they will no doubt look to the Tasmanian Bill for some guidance. CRU intern, Sophie Maltabarow, has analysed the Tasmanian Bill and the constitutional and legal problems that would have potentially arisen from it, if it had passed, particularly in relation to jurisdictional issues. Here is Sophie Maltabarow's analysis:

'In September 2012, marriage equality supporters shifted their gaze from the Commonwealth parliament to Tasmania in the hope that it would become the first state to legalise same-sex marriage. These hopes were dashed when the Same-Sex Marriage Bill 2012 was defeated in the Tasmanian upper house.

The Tasmanian Bill was rushed through Parliament in an attempt to be first State to permit same-sex marriage and perhaps win the associated tourist dollars. Given that constitutional uncertainty was one of the main grounds cited for why the Tasmanian Bill failed, other States and Territories will need to look closely at the way in which any future legislation on same-sex marriage interacts with the federal legislation.

Same-sex marriage is more than a symbolic issue of equality. State and Territory legislation in this area will affect the legal rights of people in terms of their property upon divorce and custody of their children. The States and Territories that are currently considering same-sex marriage – South Australia, NSW and the ACT – would be wise to look closely at the Tasmanian Bill and see what gaps need addressing before introducing their own legislation. The following discussion looks at the now hypothetical issues raised by the Tasmanian Bill.

Legal recognition

The Tasmanian Bill creates a legislative scheme for a new legal category of ‘same-sex marriage,’ which includes dissolution and nullity (Part 3), proceedings for financial adjustment and maintenance (Part 4), financial agreements (Part 5), and authorised celebrants (Part 6).

No doubt the first question that the out-of-state same-sex marriage tourist would ask before heading to Tasmania would be: what happens when we get home?

State same-sex marriage legislation needs to be clear on what happens to legal rights and relationship recognition when a person married in that state resides in or moves to another state within Australia.

The Tasmanian Bill was drafted in the hope that other states would eventually follow suit with similar legislation that provides for reciprocal same-sex marriage recognition. Section 75 of the Tasmanian Bill recognises same-sex marriages registered under corresponding laws in other Australian jurisdictions.

Until these corresponding laws eventuate, it appears that out-of-state couples married in Tasmania would have to rely on their legal rights as same-sex de facto couples under the Family Law Act 1975 (Cth) and other federal or state legislation. If the Bill had been passed, Tasmanian same-sex marriage would have initially been recognised in Tasmania only.

While the majority of couples choosing to solemnize a same-sex marriage in Tasmania would probably be recognised as de factos under Commonwealth law, a small number of couples may fall through the gap. For these couples, despite their same-sex marriage, their relationship may not have been recognised at all outside of Tasmania.

Clarification within the Bill as to the legal effect of the same-sex marriage outside of Tasmania in States which do not recognise same-sex marriage would help remove legal uncertainty for future newlyweds.

Constitutional issues

Constitutional uncertainty was one of the reasons why the Tasmanian Bill was defeated. The uncertainty is created by potential inconsistency with federal laws. Where there is inconsistency between a federal and a state law, s 109 of the Constitution provides that the federal law prevails and the state law is invalid to the extent of that inconsistency.

Section 51(xxi) of the Constitution gives the Federal Parliament concurrent powers with the States to legislate with respect to marriage. Section 51(xxii) provides legislative power with respect to ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’. State Parliaments, in contrast to the Commonwealth, have plenary powers and historically marriage was dealt with under State and Territory law.

De facto relationships

Section 51(xxxvii) of the Constitution permits States to refer ‘matters’ to the Commonwealth so that the Commonwealth Parliament can enact laws with respect to these matters. This has been used to ‘plug’ some of the gaps in the Commonwealth’s powers. All states except Western Australia have referred to the Commonwealth the matter of ‘guardianship, custody, maintenance and access’ in relation to ex-nuptial children. In addition, all states have referred the matter of property and partner maintenance issues arising from the breakdown of a de facto relationship (see: Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)).

In Tasmania, this matter was referred to the Commonwealth by the Commonwealth Powers (De Facto Relationships) Act 2006 (Tas). Section 4(1)(b) of this Act refers to the Commonwealth, among other things, ‘financial matters relating to de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships between persons of the same sex’. An important question here is whether the referral gives the Commonwealth exclusive powers, or whether the power to make laws with respect to that matter can be exercised by the Commonwealth and Tasmania concurrently. Even if the referral allows for concurrent powers, section 109 of the Constitution continues to operate in respect of inconsistent State laws. The federal legislation for corporations provides an example of this problem. In 2003 Justice French, as he then was, noted that ‘the Corporations Law 2001 seeks to overcome the risks of inadvertent inconsistency by expressly denying any intention ‘to exclude or limit the concurrent operation of any law of a State’.” The only express mention of concurrent operation of State and Territory laws in the Commonwealth Family Law Act 1975 is section 114AB(1), which states that the provisions dealing with injunctions and powers of arrest ‘are not intended to exclude or limit the operation of a prescribed law of a State or Territory that is capable of operating concurrently with those sections.’ Does this suggest that the remaining provisions are intended to exclude or limit state laws? A couple who marry in Tasmania are likely to be recognised as de factos outside of Tasmania. This may give rise to an inadvertent inconsistency, although as discussed below the Tasmanian Bill largely adopts the same language as the relevant sections of the Family Law Act.

Marriage vs. ‘same-sex marriage’

The Marriage Act 1961 (Cth) introduced a national marriage code. Interestingly, there was no definition of marriage in the original Marriage Act. Senator Gordon, who introduced the Bill, was content to rely upon the common law definition which would have allowed some scope for the definition to evolve along with society’s changing conception of marriage. However, the Act was amended in 2004 under the Howard Government, and s 5(1) now provides a definition of marriage: ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’. This amendment was described by former Chief Justice of the Family Court of Australia, Alistair Nicholson, as ‘one of the most unfortunate pieces of legislation that has ever been passed by an Australian Parliament.’

Unlike the recently defeated federal marriage equality bills, the Tasmanian bill does not expand the current Commonwealth definition of marriage to include ‘the union of two people, regardless of their sex, sexual orientation or gender identity’ (see: Schedule 1, s 1 of the Marriage Equality Amendment Bill 2012 (Cth)). The Tasmanian Bill was drafted in an attempt to avoid any inconsistency with the current federal legislation on marriage. The Bill legalises ‘same-sex marriage’, defined in s 3 of the Bill as ‘the lawful union of two people of the same sex, to the exclusion of all others, voluntarily entered into for life’.

As the Bill avoids the use of the stand-alone word ‘marriage’, certain provisions of the federal Family Law Act that generally apply to married people across Australia would not apply to people married under the Tasmanian Bill. The Bill attempted to fill these gaps itself by adopting the relevant parts of the federal Marriage Act and Family Law Act and replacing ‘marriage’ with ‘same-sex marriage’. Couples married under the Tasmanian Same-Sex Marriage Bill may simultaneously be recognised as de facto couples under state and federal legislation.

Parallels with the Marriage Act

Part 2 of the Tasmanian Bill deals with the application of same-sex marriage and its solemnisation. Section 5(2) states that the Bill applies to ‘all same-sex marriages solemnised, or intended to be solemnised, in Tasmania’. Section 6 provides that the same-sex ‘marriageable age’ is 18 (this is the same as under the Marriage Act, although the Marriage Act also provides that persons who have attained 16 years of age may apply to a judge or magistrate for authorization with appropriate consent (s 12). This option is not available under the Tasmanian Bill, possibly because the age of consent in Tasmania is 17). The grounds on which same-sex marriages are void (s 7) are the same grounds as set out in s 22 of the Marriage Act.

Division 4 deals with the solemnisation of same-sex marriages. This division substantially replicates Part IV, Division 2 of the Marriage Act, ‘Marriages by authorised celebrants.’ It is interesting to note the difference between the words the authorised celebrants are required to use to explain the nature of the relationship about to be entered into by the couple. Under the Tasmanian Bill, the celebrant must state: “According to the Same-Sex Marriage Act 2012, this wedding recognizes that you are voluntarily entering into a lawful and binding union, for life, to the exclusion of all others” (s 13). In comparison, under the Marriage Act the celebrant must state: “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” (s 46(1)). The drafters of the Tasmanian Bill have clearly avoided the use of the word marriage in this explanation.

Another difference worth pointing out is that s 47 of the Marriage Act, which provides that there is no obligation on an authorised celebrant who is a minister of religion to solemnise any marriage, is not replicated in the Tasmanian Bill. However, as it is optional for ministers of religion to apply to become registered same-sex marriage celebrants in the first place under the Tasmanian Bill, this is unlikely to cause any problems in practice.

Division 5 sets out the offences under the Same-Sex Marriage Bill, which closely reflect the offences provided in Division VII of the Marriage Act. These include same-sex marriage by a person who is already married (s 19; bigamy in s 94 of the Marriage Act) and marrying a person under the marriageable age (s 20; s 95 of the Marriage Act).

Part 7 of the Tasmanian Bill establishes a register of authorised same-sex marriage celebrants. This text substantially duplicates the text of Part IV, Division 1 of the Marriage Act, ‘Authorised celebrants’. However, the Tasmanian Bill omits Subdivision A of the Marriage Act, which provides for the registration of ministers of religion who may then solemnise marriages at any place in Australia. The Tasmanian legislation does not preclude ministers of religion from registering as a same-sex marriage celebrant. Ministers of religion are mentioned only once in s 14(1), which provides that if a same-sex marriage is solemnised by a minister of religion, it may be solemnised according to any form and ceremony recognised as sufficient by their religious body or organisation. A person who is registered as a same-sex marriage celebrant is only entitled to solemnise same-sex marriage within Tasmania (s 82).

Another minor difference is that under s 39B(4) of the Marriage Act, all information contained in the register must be available on the internet. Perhaps with the possibility of harassment in mind, this provision has not been replicated in the Tasmanian same-sex marriage bill.

Parallels with the Family Law Act

As the Same-Sex Marriage Bill creates a new status of legal union beyond the scope of the Commonwealth’s definition of marriage, it must also be capable of dealing with the legal effect of a same-sex marriage break-down. Parts 3, 4 and 5 of the Tasmanian Bill go beyond the scope of the Marriage Act to territory covered for heterosexual marriages and de facto relationships under the Family Law Act 1975 (Cth).

Part 3 deals with the dissolution and nullity of same-sex marriage. Section 27 provides that the Supreme Court of Tasmania has jurisdiction and in order for proceedings to be initiated, one of the parties must be an Australian citizen and ordinarily a resident of Tasmania at the relevant date. On the basis of this provision, it is not clear how out-of-state same-sex marriage ‘tourists’ would go about dissolving their union. The requirement of Tasmanian residence seems to make this impossible, leaving them bound in an eternal Tasmanian same-sex wedlock. Section 29 provides for making an application for a dissolution order and the language is taken directly from the Family Law Act provision on divorce (s 48). The provisions which deal with nullity of the same-sex marriage are also the same as those in the Family Law Act.

The Tasmanian Bill does not provide additional considerations that need to be taken into account before a divorce will take effect if the couple have children. This is dealt with in s 55A of the Family Law Act. Indeed, no specific part of the Tasmanian Bill deals with children (see: Part VII, Family Law Act). This seems to be a glaring hole in the Bill, and presumably other state and federal legislation would serve to ‘gap-fill’ this area of same-sex marriage breakdown. The Tasmanian Bill refers directly to children just twice in Part 4: Proceedings for financial adjustment and maintenance (ss 45 and 51) and also twice in Part 5: Financial Agreements (ss 68 and 73).

Part 4 of the Bill provides that the Tasmanian Magistrates Court or Supreme Court have jurisdiction to address applications for financial adjustment and maintenance upon the break-down of a same-sex marriage (s 41). The Family Law Act, in contrast, confers jurisdiction upon the Family Court, the Federal Magistrates Court, the Supreme Court of NT, and each court of summary jurisdiction in each territory to hear de facto financial causes (s 39A). It appears that same-sex couples married in Tasmania can still apply to the Family Court if they satisfy the criteria of a de facto relationship under the Family Law Act. A same-sex marriage in Tasmania may in fact help a couple to qualify as de facto, as s 4AA(2)(g) of the Family Law Act provides that one of the relevant factors to consider is whether the relationship is or was registered under a prescribed law of a State or Territory.

Part 5 deals with financial agreements, and substantially mirrors Part VIIIA of the Family Law Act. Same-sex couples who choose to marry in Tasmania are likely to fall within the definition of a de facto relationship under the Family Law Act, which includes a relationship ‘between 2 persons of the same sex’ (s 4AA(5)(a)). Interestingly, s 90RC(2) of the Family Law Act states that the Parliament intends the Family Law Act’s de facto financial provisions – those dealing with the finances of a couple when the relationship breaks down – are to apply to the exclusion of any State or Territory Law. For example, the current Tasmanian Relationships Act 2003 provisions on financial maintenance and adjustment for de facto couples are now largely redundant.

The Tasmanian Bill’s property adjustment and financial provisions may be saved because the Bill does not refer specifically to de facto relationships, only to same-sex marriage. Section 90RC(2)(b) requires that the State or Territory Law deal with those matters ‘by referring expressly to de facto relationships (regardless of how the State or Territory law describes those relationships)’. It would be helpful for any future same-sex marriage legislation to explicitly deal with how it will operate with federal legislation concerning de factos.

Tasmania’s Relationships Act 2003

Under current Tasmanian legislation, same-sex couples can register a ‘deed of relationship’ if they are in a ‘significant relationship’. ‘Significant relationship’ is broadly defined in s 4 as a relationship between two adult persons who have a relationship as a couple and who are not married to one another or related by family. A couple cannot register their relationship unless they live or ordinarily reside in Tasmania. They also cannot register if they are currently married or a party to a deed of relationship (s 11). Section 15 provides that a deed of relationship is revoked by the marriage of either party to the deed. A same-sex marriage – either in Tasmania or in another State or Territory – would therefore likely revoke the deed of relationship. This revocation may affect a couple’s rights if, for example, certain pieces of Commonwealth or State legislation recognised the Tasmanian deed of relationship but not same-sex marriage.

Conclusion

The Tasmanian Bill creates a new category of legal union – the same-sex marriage – which is distinct from both marriage and de facto relationships. In this respect, the Tasmanian Bill perhaps does not provide the full equality sought by same-sex marriage supporters. However, Tasmanian gay rights activist Rodney Croome made the point that the States were first to recognise same-sex de facto relationships, legislating one-by-one. It wasn’t until 2008, when States referred this matter to the Commonwealth, that the federal government amended legislation to ensure same-sex de facto couples had the same rights as heterosexual de facto couples across several areas of law. As States and Territories are also likely to lead the way with same-sex marriage legislation, it is important that the legal rights of those wed under such legislation, both in the place of marriage and across Australia, are carefully considered, and that the interaction between State or Territory law and federal law is clarified.'