« October 2012 | Blog home | January 2013 »

December 2012

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.'

While most of the discussion of the impending royal birth falls into the category of fawning adulation, dismissive contempt or celebrity gossip, the one substantive issue that has arisen concerns the rules of succession to the throne and the attempt to change them. This blog post seeks to illuminate the legal and constitutional issues involved with respect to Australia.

The current rules

The rules concerning succession to the throne are a complex mix of common law and legislation. On the common law side, the rules are based on a form of primogeniture that favours males over females. Male heirs inherit, in order of birth, before any female heir, even if she was born first. A female heir may only inherit if she has no living brothers and no deceased brother who had children. This bias has long been removed from English laws concerning the inheritance of property, but remains fossilised in the rules concerning succession to the throne. One of the proposals agreed by the Realms in a side-meeting at CHOGM in 2011 was to remove the bias against females, but otherwise retain the system of primogeniture.

On the legislative side, the Bill of Rights 1688, the Act of Settlement 1701 and the Accession Declaration Act 1910 require that the monarch be ‘in communion’ with the Church of England and declare himself or herself to be a faithful protestant. This does not necessarily mean that the monarch must be a member of that Church, as George I and George II were both Lutherans. The Bill of Rights and the Act of Settlement also state that any person who is in communion with the Church of Rome or who shall profess a Popish religion or marry a Papist shall be excluded from inheriting the Crown or exercising any regal power, authority or jurisdiction and shall be treated as dead for the purposes of succession to the throne. This means that a person who marries a Catholic loses his or her place in the line of succession, although his or her children may still inherit the throne as long as they are Protestants who are in communion with the Church of England and are not married to a Catholic. The other proposal agreed by the Realms at CHOGM in 2011 was that a person would not lose his or her place in the line of succession if he or she marries a Catholic. However, to be monarch, a person must still be ‘in communion with the Church of England’ and not be a Catholic.

The British Government also proposes to repeal the Royal Marriages Act 1772 and replace it with more limited legislation. The Royal Marriages Act requires all descendants of George II to obtain the monarch’s consent ‘signified under the great seal and declared in council’ before marrying. If not, the marriage is void (except for princesses marrying into foreign families or persons over 25 who go through a formal process that permits the UK Parliament to disapprove of the proposed marriage). Given that the number of descendants of George II is now significant, and many would not know that they were descendants of George II, it is likely that there are many marriages that are technically void. The British Government intends to validate such marriages and to restrict the need for permission to marry to the first few (probably six) in line to the throne.

The application of the rules of succession to Australia

To what extent do these laws apply to Australia? The Bill of Rights 1688, the Act of Settlement 1701 and the Royal Marriages Act 1772 formed part of British law at the time Australia was settled. The common law arrived in Australia with its settlers. Doubts about the extent of reception of British statutes led to the enactment of the Australian Courts Act 1828. From then, at the latest, the Bill of Rights 1688, the Act of Settlement 1701 and the Royal Marriages Act 1772 applied as part of the law of the Australian colonies. In some States, these laws have been formally re-enacted as part of the State’s laws (see the Imperial Acts Application Acts in the ACT, NSW, Qld and Vic). For example, s 6 of the Imperial Acts Application Act 1969 (NSW) provides that these Acts are declared to have remained in force in NSW since 25 July 1828 and to continue in force. While there is debate about whether these laws applied by paramount force, it is generally accepted that the colonies and their successor States had no legislative power to change them.

The Statute of Westminster 1931 permitted the Commonwealth Parliament (and the Parliaments of the other Dominions) to enact laws that were inconsistent with laws of paramount force. Recognising that this could potentially affect the laws of succession, the preamble to the Statute provides 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.’ The problem for the Commonwealth, however, is that it has limited heads of power. In 1936 the Commonwealth approved of the changes to succession resulting from the abdication, but did so by way of resolution rather than statute, because of doubts that it had any legislative power to enact a law about succession to the throne.

The States remained bound by laws of paramount force until the enactment of the Australia Acts 1986. Section 2 gives the States ‘all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State’. Hence it arguably gives the States the legislative power to make laws concerning the succession in relation to the Crown of the State. This, however, depends upon whether there are separate State Crowns, or only one Commonwealth Crown. This was a matter left unresolved by the Australia Acts.

The Australia Acts also terminated the power of the United Kingdom to legislate for Australia. Hence, any changes made by British law to the succession to the British Crown would not affect the Act of Settlement or the Bill of Rights to the extent that they form part of Australian law.

The final complicating factor involves the references to the Queen in the Commonwealth Constitution. The oath set out in the Schedule to the Commonwealth Constitution refers to allegiance to ‘Her Majesty Queen Victoria, Her Heirs and successors according to law’. It does not specify which law. However, covering clause 2 in the Commonwealth of Australia Constitution Act states that the provisions in that Act (s 9 of which contains the Commonwealth Constitution) that refer to the Queen ‘shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom’. Whether this provision imposes a requirement that the ‘Queen’ referred to in the Commonwealth Constitution must be the person who is Queen of the United Kingdom, or whether it is simply a redundant interpretative provision, remains a matter of dispute.

The different approaches to the meaning of covering clause 2

There are three views as to how covering clause 2 operates in Australia. The first is that it mandates that whoever is the sovereign of the United Kingdom is also, by virtue of this external fact, sovereign of Australia. According to this view, a change in the United Kingdom law of succession would have no legal application as part of Australian law, but if it had the effect of changing the sovereign (eg as a result of abdication) then the new sovereign of the United Kingdom would automatically become the new sovereign of Australia because of the operation of covering clause 2.

The second view is that covering clause 2 is merely an interpretative provision which simply assumes, but does not enact, the existence of a succession law that is operative in Australia. According to this view, covering clause 2 operates to ensure that references to the sovereign are not taken to be confined to the sovereign at the time of the enactment, but extend to whoever happens to be the sovereign from time to time in accordance with the applicable law. This view is consistent with the position in Canada where the equivalent provision was repealed because it was regarded as a redundant interpretative provision, rather than a substantive requirement. The consequence in Australia of this approach is that, as the United Kingdom can no longer legislate for Australia, the applicable law would be the pre-existing law of succession as altered by Australian law.

The third view, which falls between the two extremes is that covering clause 2 incorporated by reference into the Commonwealth of Australia Constitution Act the British laws of succession to the throne. Under s 4 of the Statute of Westminster, those laws could be amended or repealed by United Kingdom legislation to which Australia had given its request and consent. That is no longer the case as s 1 of the Australia Acts provides that no Act of the United Kingdom Parliament may now extend to Australia as part of Australian law. In Sue v Hill (1999) 199 CLR 462, three Justices of the High Court of Australia noted that covering clause 2 identifies the Queen ‘as the person occupying the hereditary office of Sovereign of the United Kingdom under rules of succession established in the United Kingdom’. Their Honours went on to state at [93]:

The law of the United Kingdom in that respect might be changed by statute. But without Australian legislation, the effect of s 1 of the Australia Act would be to deny the extension of the United Kingdom law to the Commonwealth, the States and the Territories.

The argument here is that the rules of succession have been effectively patriated with the Australian Crown and while they continue to exist in their current British form, they may only be amended or repealed by Australian action.

Covering clause 2 could have been amended or its effect clarified at the time of the enactment of the Australia Acts 1986, but it was not. The issue was too contentious and was swept under the carpet, leaving the application of covering clause 2 unclear. However, given the nationalistic approach of the High Court and the view of three judges in Sue v Hill, it is likely that a future court would hold that no British changes to the law of succession could have either a direct or indirect effect upon the law of succession with respect to Australia and that Australian legislation would have to be enacted to effect such a change.

Changing the rules of succession in Australia

What power, then, permits a change to the rules of succession with respect to Australia? Given that the Queen plays an integral role in relation to State Constitutions and State Parliaments and given the Commonwealth’s lack of a specific head of power to deal with succession to the throne, the preferable approach is to employ s 51(xxxviii) of the Constitution. This entails State legislation requesting the enactment of a law by the Commonwealth that only the United Kingdom Parliament could have enacted at the time of federation. Such an approach would be consistent with both a single federal Crown or a heptarchy of State and Commonwealth Australian Crowns.

The only problem with using s 51(xxxviii) is the fact that the succession would be formally placed in a Commonwealth law and there is insufficient jurisprudence yet to be certain that the only way of amending or repealing that law would be through another law supported by s 51(xxxviii). The States might wish to ensure that the law is framed in such a manner as to make clear that it can only be amended or repealed by the same procedure.

Other sources

A full academic article on these issues, including the continuing application of the Statute of Westminster and the constitutional issues that arise in other realms was published in [2011] Public Law 378-401 and is available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1943287