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.

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 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.

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.

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.

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

'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.'

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

Andrew Forrest and the beleaguered Fortescue Metals Group had a victory in the High Court last week against the corporate watchdog. A unanimous judgment held that Mr Forrest’s statements on binding agreements with State-owned Chinese entities back in 2004 were not false or misleading. This decision would have come as a personal relief for Mr Forrest, as the High Court found that he had not breached his Directors duties to exercise the level of degree of care and diligence required by s 180(1) of the Corporations Act 2001 (Cth). Fortescue Deputy Chairman Herb Elliott stated that ‘ASIC's allegations have been an expensive distraction. We can now focus our full attention to ensuring the continued success of Fortescue Metals Group for many years to come.’ Fortescue Metals was also successful in an appeal against the decision of the Australian Competition Tribunal in September. But Mr Forrest has another legal proceeding underway: Fortescue Metals filed a statement of claim in the High Court on 22 June 2012, challenging the constitutionality of the Minerals Resource Rent Tax (MRRT) which came into effect 1 July 2012.

The MRRT taxes profits made by companies mining iron ore and coal. In working out a mining corporation’s profit, the amount paid by it in State royalties is first deducted. This ‘loophole’ equalizes the effect of different State royalties on the overall burden of the tax on miners. It means that the higher a state royalty, the lower the MRRT paid and the lower the revenue received by the Commonwealth. Greens leader Christine Milne has introduced a private member’s bill in the Senate to close this loophole in the MRRT. The Minerals Resource Rent Tax Amendment (Protecting Revenue) Bill 2012 provides that any increases in State or Territory royalties after 1 July 2011 should be disregarded when calculating royalty credits for the MRRT.

Big Mining has spoken out against any amendment to the MRRT. If it has to accept the tax, it wants to keep the loophole.

It is no surprise that the Greens are taking on Big Mining in an attempt to protect tax revenue. Nor is it a surprise that mining companies want to preserve their current protection from any rise in State royalties. The credibility problem here for Big Mining is that the Fortescue Metals Group has also sought to challenge the constitutional validity of the tax in the High Court and it relies on the argument that this very loophole causes the MRRT to be unconstitutional.
Fortescue’s challenge is most likely based on an assumption that by the time the High Court decides the case there will be a change in government. The tactical benefit to the constitutional litigation is that if the MRRT is struck down by the High Court, a future coalition government would not have to get its repeal of the tax through the Senate. If the Gillard Government together with the Greens removes the loophole, however, the constitutional challenge would be destroyed.

Mitch Hooke, chief executive of the Minerals Council of Australia, has reportedly said that any change to the MRRT would ‘simply add to the instability and uncertainty of Australia's taxation regime’ and negatively impact on mining investment in Australia. Surely a constitutional challenge, if Fortescue Metals believes that it has any chance of having the MRRT struck down, also adds to the uncertainty? The line from Fortescue Metals is that by challenging the tax, it is being a ‘good corporate citizen’. It seems clear, however, that both these approaches to the MRRT are motivated by self-interest. The miners complain that the loophole makes the MRRT unconstitutional because it is discriminatory, but at the same time they are lobbying to keep it because it benefits them.

In fact it was Big Mining that negotiated the loophole in the first place. After the federal government abandoned the ‘Resource Super Profits Tax', a renegotiation deal was done behind closed doors. Three of the largest mining companies in Australia - BHP Billiton, Rio Tinto and Xstrata – negotiated with the federal government for the MRRT in its present form. The States and smaller mining companies were not party to these discussions. The large mining companies successfully negotiated the deduction of State royalties from mining profits before the tax applies and removed a clause which would have capped the amount that could be deducted. The miners are not going to let their loophole go without a fight, even though Fortescue Metals is challenging its constitutional validity.
All the grounds of purported constitutional invalidity raised by Fortescue Metals rely on the MRRT liability being reduced by State royalties. First, Fortescue Metals argues that the MRRT is in contravention of s 51(ii) of the Constitution, the taxation power, because it discriminates between States. Fortescue Metals argues that, all other things being equal, whether a miner will have to pay either more or less of the MRRT in a particular State will depend on the royalty rates in that State. Further, as State governments have the power to raise, reduce or grant exemptions from royalty rates, the MRRT liability may be subject to variation. And therefore this variation amounts to discrimination between the States. Success in this argument will depend upon the High Court taking a highly literal interpretation of the Constitution and the meaning of ‘discrimination’, as the effect of the loophole is to ensure that the overall liability to pay State royalties and the MRRT is equalised for all miners regardless of the State in which they are operating mining projects.

Fortescue Metals is arguing that the effect is to prevent a State from using its power to adjust its royalties rates to encourage economic development, gain a competitive advantage or discourage mining where it is damaging to the environment. The High Court has given some sympathy to such a prima facie discrimination argument in a different context. In the 1988 decision of Bath v Alston Holdings, a majority held that a Victorian law, which would have removed the potential competitive advantage of inter-state tobacco wholesalers selling to Victorian retailers when they did not have to pay tax on tobacco in their home State, was discriminatory and protectionist and therefore contravened s 92 of the Constitution. The minority instead looked to the practical operation of the legislation and made the point that the ‘economic effect of the tax is the same’, regardless of whether the retailer purchases the tobacco from wholesalers within or outside of Victoria. If Fortescue’s challenge is heard by the High Court, it will be interesting to see whether the discrimination between States argument in s 92 can be applied in the context of s 51(ii).

Second, Fortescue Metals submits that the MRRT is unconstitutional because it impairs or curtails the capacity of a State to function as a government with control over the economic development of its natural resources. This is because it removes a State’s capacity to create a competitive advantage by varying its royalty rates. It would have the effect of ‘rendering illusory or inefficacious’ any attempt by a State to differentiate itself from other States or countries. The difficulty here will be showing that the capacity of States to vary royalty rates with economic impact amounts to a constitutional power of the State which is protected by the Constitution. It is unclear whether the Melbourne Corporation doctrine, which preserves the rights of the States to carry out essential governmental functions, would extend to protect control over the use of natural resources and to the capacity to promote the economic development of the State through royalty rates. Regardless of the chances of its success, this argument still relies on the effect of the loophole to challenge the MRRT’s validity.

Third, Fortescue Metals asserts that the MRRT gives preference to one State over another in contravention of s 99 of the Constitution. Again, this argument relies on the loophole. It argues that a State with higher royalties is, in effect, given preference by the MRRT, because it gains additional revenue without damaging its competitive position in the market.

Recent High Court authority suggests this argument will not be successful. In the 2004 case of Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vic), the High Court upheld the validity of a mirror tax scheme. The Commonwealth Places (Mirror Taxes) Act 1998 (Cth) imposes taxes on Commonwealth places (such as airports) which are equivalent to the relevant state taxes, and then returns that tax revenue to the state. One of the arguments made against the scheme was that it contravened s 99 of the Constitution because it gave preference to one state over another. The High Court rejected this argument. It stated that while the tax scheme ‘may produce differences in revenue outcomes between States,’ this simply reflected the difference in taxation regimes from State to State, and that the differences were ‘appropriate and adapted to a proper objective’.

Finally, the MRRT is challenged on the basis of s 91 of the Constitution, which provides that ‘nothing in this Constitution prohibits a State from granting any aid to or bounty on mining for gold, silver, or other metals’. The assertion is that, because the MRRT has the effect of removing any competitive benefit for a State to have a lower royalty rate, it prevents a State from aiding the mining industry through a reduction in royalties. This argument may prove difficult, as the High Court has previously said in 1978 in Seamen’s Union of Australia v Utah Development Co that s 91 ‘neither grants power nor withholds it. It merely limits the scope of the prohibition in s 90,’ which gives the federal government exclusive power over customs, excise, and bounties. There is no positive right for the MRRT to impinge on.

It is also interesting to consider the States’ stance on the ‘loophole’ issue, keeping in mind that they were not included in the final negotiations on the MRRT. The loophole presents an obvious cash-raising opportunity for the States. The Sydney Morning Herald reported that the federal Treasurer Wayne Swan has written to States and territories, saying that he intends to penalise dollar-for-dollar any attempts by States to make a revenue-grab by increasing their royalty rates. NSW has already increased its royalty rates since the MRRT was passed by parliament, and Queensland has announced it intends to do the same. Interestingly, Queensland has also announced that it will join Fortescue Metals in its challenge to the MRRT’s constitutional validity. It may well find itself in a similarly logically-uncomfortable situation.

If Senator Milne’s bill passes through parliament before any challenge is decided by the High Court, miners will be left without their current protection from rises in State royalties and the grounds for Fortescue Metals’ constitutional challenge will be destroyed. Even if the challenge does make it to court, Fortescue Metals’ chances of success are not high. It may well be prudent for Mr Forrest to listen to the words of his Deputy Chairman in response to their win against ASIC and the end to ‘expensive distractions’.

Bob Katter’s campaign against free trade faced another set back in August, with the Joint Standing Committee on Treaties (JSCOT) recommending that his Treaties Ratification Bill 2012 not be passed. While academic opinion regards the Bill as likely to be constitutionally valid, it would present some serious practical and political implications for treaty-making in Australia.

Mr Katter introduced the private member’s bill on 13 February 2012. His Australian Party’s website expresses concern about free trade agreements and states that it ‘is committed to providing support and protection to Australian industries and reversing this madness, bringing jobs back home and reviving our once proud manufacturing and agriculture industries.’ The Treaties Ratification Bill forms part of the Australian Party’s policy platform, which also includes preventing any further free trade agreements and ensuring that, where practical, all Governments purchase only Australian goods.

The Bill has only one substantive provision. It states:

'The Governor-General must not ratify a treaty unless both Houses of Parliament have, by resolution, approved the ratification.’

The effect of the provision is to make positive approval by both Houses of Parliament a condition precedent to the ratification of any treaty by the executive government.

Treaty ratification in Australia – a democratic deficit?

Katter is not the first to raise the issue of parliamentary approval of treaty ratification. The power to enter into a treaty is an executive power, but many have raised concerns that there is a democratic deficit in treaty-making and proposed measures to ameliorate it. In 1983, Senator Harradine tried and failed to establish a Senate Standing Committee on Treaties. The Australian Democrats introduced a Parliamentary Approval of Treaties Bill in 1994, but it was not passed. The Senate Legal and Constitutional References Committee, in its Trick or Treaty? Report in 1995 considered the question of parliamentary approval of treaty ratification, but opted first to try greater parliamentary scrutiny through the establishment of JSCOT and other accountability measures such as the tabling of treaties and the publication of national interest analyses. These measures were introduced in 1996 and for a time quelled concerns about a democratic deficit in treaty-making.

Bob Katter believes that the current measures do not go far enough. His Bill requires positive approval by both Houses of Parliament before the executive may enter into any treaty. However, the Bill lacks the subtlety and flexibility of the current arrangement. It fails to address the different requirements of urgent or sensitive treaties, and also the large number of administrative or minor treaties. Further, it does not address parliamentary involvement in treaty amendments or withdrawals.

Constitutional questions

The question raised is whether Parliamentary approval as a condition precedent to treaty ratification by the executive is constitutionally valid. The power to enter into a treaty is an executive power, exercised under s 61 of the Constitution, whereas the power to implement the treaty by legislation is exercised by the Parliament under s 51(xxix) of the Constitution. While it is undisputed that the Parliament can legislate to abrogate the executive’s prerogative powers, it is unlikely that Parliament could go so far as to confer executive powers upon itself. This would threaten the separation of powers, to the extent that it exists, between the Parliament and the Executive.

Constitutional law experts Professor Twomey and Professor Williams, both witnesses at the JSCOT Inquiry’s public hearing, were of the opinion that parliamentary approval prior to treaty ratification would most likely be constitutionally valid. Legislating to create a condition precedent does not go so far as to usurp the executive’s prerogative power to negotiate and enter treaties themselves. The Bill merely modifies this power, and this modification is likely to be within the Parliament’s legislative powers.

Practical and political issues

Professor Twomey, in her submission to the Inquiry, noted that aside from constitutional issues the Bill raises a number of practical difficulties. First, requiring positive approval of all treaties by both Houses of Parliament would lead to an ‘unwieldy and impractical’ demand on Parliament’s time. JSCOT has reviewed over 600 treaties since 1996, an average of almost 40 treaties per year. The majority of these treaties are uncontroversial. Even Bob Katter conceded in Parliament on 25 June that the practical effect of the Bill would be to ‘gum up the operations of the Parliament of Australia,’ which suggests that Mr Katter intends to use this Bill to limit the number of treaties Australia enters into. The JSCOT report commented that this isolationist approach is ‘unrealistic and counter to Australia’s national interest’ in the 21st century. Second, the Bill’s blanket requirement for Parliamentary approval of treaties does not allow any flexibility to deal with urgent treaties. As it stands, the Bill would seriously limit Australia’s ability to act in the case of an international emergency.

The Bill raises further political difficulties because it requires the approval of both Houses of Parliament. In recent Australian politics, minor parties or independents have often held the balance of power in the Senate. Mr Laurie Ferguson voiced his concern during parliamentary debate, arguing that the effect of the Bill would enable minor parties in the Senate to hold the government to ransom and potentially cripple Australia’s capacity to conduct international negotiations. On this basis, JSCOT’s Inquiry into the Treaties Ratification Bill 2012 recommends that the bill should not be passed.

Mr Katter may have seen the Treaties Ratification Bill 2012 as an ingenious way to rein in the growing number of international free trade agreements. But the JSCOT report makes clear that the Bill’s one blanket provision is insufficient to deal with magnitude and complexity of Australia’s international agreements. The Bill is unlikely to pass.

The reserve powers are powers exercisable by the Governor-General or a State Governor without, or contrary to, the advice of his or her responsible Ministers. They are primarily exercised in circumstances where the Governor-General does not have ‘responsible’ advisers (eg when the Governor-General is appointing a new Prime Minister or where the Prime Minister has lost the confidence of the lower House and seeks an election or to continue to govern without confidence, in which case the Governor-General can refuse a dissolution or dismiss the Prime Minister) or where there is a breach of the rule of law (eg the Prime Minister persists in acting in breach of the law, in which case he or she may be dismissed). Although the appointment of every Prime Minister is technically an exercise of the reserve powers, it is normally uncontroversial because it is clear who has the support of a majority in the lower House. For the purposes of this post, a reference to the ‘reserve powers’ means the refusal of a dissolution, the dismissal of a government or the appointment of a Prime Minister or Premier who does not or may not hold the confidence of the House.

Excluding Lord Hopetoun’s blunder, the very first exercise of a reserve power by a Governor-General in Australia was the refusal of a dissolution to the first Labor Prime Minister, terminating Labor’s first term in office after a mere four months. Prime Minister Chris Watson had lost a crucial vote on an industrial relations bill. He had made it clear that the vote would indicate confidence in his government. He asked the Governor-General to dissolve Parliament and hold an election. The Governor-General, Lord Northcote, sought the advice of the Chief Justice of the High Court, Sir Samuel Griffith. After listening to that advice, he refused Watson a dissolution and asked Watson to stay in office until a new administration could be formed. George Reid was then asked to form a government.

In 1905 Reid’s Government was defeated on the Address in Reply, which is the equivalent of a vote of no confidence. Reid sought a dissolution but was also refused. Although it is likely that Griffith advised the Governor-General (as he did in relation to other constitutional matters), there are no documents to establish whether or not he did, leaving this the only example of the exercise of such a reserve power at the Commonwealth level in relation to which we cannot be sure that a High Court judge advised.

Certainly, Griffith advised in relation to the third exercise of the reserve powers, being the refusal of a dissolution to Fisher Government in 1909. He also advised the Governor-General on the extent of his discretion in relation to the grant of a double dissolution in 1914 and advised how the Governor-General should deal with the resignation of Fisher as Prime Minister in 1915. Edmund Barton, when a High Court Justice, was also a frequent adviser to the Governor-General. Both Barton and Griffith advised on whether a referendum could be held over conscription and also on how to deal with Prime Minister Hughes’ resignation after the second conscription referendum failed in 1917.

Interestingly, the Governor-General, Sir Ronald Munro Ferguson, took the view that Griffith and Barton were entitled to advise him because they were Privy Councillors. In England, it is the role of Privy Councillors, including members of the Judicial Committee of the Privy Council, to advise the monarch. There are formal mechanisms to give this advice, such as s 4 of the Judicial Committee Act 1833, but such advice also apparently continues to be given informally to the Queen by British judges. After Sir Samuel Griffith’s retirement, the Governor-General urged the appointment of the new Chief Justice, Sir Adrian Knox, as a Privy Councillor, in order to gain the benefit of his advice.

It is not known the extent to which Knox advised the Governor-General. It may have been the case that there was no need to do so. As the two-party system solidified and majority governments became the norm at the Commonwealth level, there was no real call on the Governor-General to exercise reserve powers and therefore little need for constitutional advice. This did not mean that High Court Justices were necessarily more circumspect in their offerings of advice. Sir John Latham, for example, advised the Prime Minister on the drafting of a referendum to overturn the High Court’s judgment in the Communist Party Case.

The next occasion for the exercise of reserve powers at the national level did not arise again until the Prime Minister, Harold Holt, went missing in 1967. The Governor-General then sought the advice of the Chief Justice, Sir Garfield Barwick, as to what to do. Having taken Barwick’s advice, the Governor-General exercised his reserve power to terminate Harold Holt’s commission as Prime Minister and appoint John McEwen as Prime Minister until a new Liberal leader could be chosen.

In the meantime, at the State level, constitutional crises still abounded and advice was regularly given to Governors by judges. In 1932 the NSW Governor received advice from the NSW Chief Justice on dismissing the Lang Government, just as in 1927 his predecessor had received the Chief Justice’s advice on his reserve powers concerning the dissolution of Parliament and the ‘swamping’ of the upper House. In 1939, the next Chief Justice of the NSW Supreme Court advised the Governor about a constitutional crisis involving the defeat of the Government on a financial measure.

In Victoria, political instability and constitutional crises extended into the 1950s. In 1952, for example, the Chief Justice of the High Court, Sir Owen Dixon, along with the Chief Justice of the Victorian Supreme Court and a puisne judge, advised the Governor about a conflict very similar to that of 1975. Labor, with the support of break-away Liberals, blocked supply in the upper House. The Governor refused the Country Party Premier an election because supply would have run out during the election period. A new Premier was commissioned, who managed to achieve the passage of supply in the upper House but was then defeated in the lower House. Sir Owen Dixon first advised the Governor to refuse a dissolution and appoint the Labor leader, John Cain, as Premier because he led the largest party in the House. The Governor, Sir Dallas Brooks, replied that Cain would not accept the premiership because he preferred to go to the election as Opposition Leader. Dixon then advised the Governor to restore the former Premier to the premiership and grant him an election, which the Governor duly did. Note that Dixon was not simply advising on the scope of the Governor’s powers, but on how they should be exercised in the political circumstances.

The Victorian Governor again called upon Dixon’s aid on 2 April 1955. John Cain had been elected Premier of Victoria, but the Labor Party had split. Cain only had supply until 30 June and a faction of the Labor Party had proclaimed that it would not vote for supply when Parliament resumed. It was most likely that when Parliament met a vote of no confidence in the Government would be passed. Cain decided he wished to keep governing until the end of June without recalling Parliament to pass the supply bills. But if he resigned then, there would still have been a significant period in which the State had no supply. Dixon advised the Governor that he should ensure that there was no interval in which the services of Government were not paid. He told Brooks to tell Cain that he would not dissolve Parliament unless supply was provided or unless the possibility of a government of some kind obtaining supply was exhausted. This effectively warned Cain that rather than being permitted to go to an election as Premier, he would be replaced and a new government formed. In these circumstances, Cain agreed to the recall of Parliament in order to face a vote of no confidence. Cain’s government was defeated, he was granted a dissolution and went to the election as Premier, at which he was defeated.

Both these supply crises and the role of the Chief Justice in advising the vice-regal representative on their resolution show distinct similarities to what occurred in 1975. Interestingly, Sir John Kerr’s personal papers in the National Archives show that he took a great interest in what had occurred during the Victorian crises.

There were other occasions when Sir Owen Dixon gave advice to the Western Australian Governor. We only know this because he left behind diaries which informed the biography of Dixon written by Philip Ayres. We also know of Griffith’s and Barton’s extensive advice because their records were left to libraries and archives and because of the work of Don Markwell in writing about them. No doubt these examples are the tip of the iceberg and that much more informal advice has been given to vice-regal officers from judges over the years. In these circumstances, advice to vice-regal officers from judges can hardly be described as unprecedented, unusual or unconventional.

Looking at Sir Anthony Mason’s informal advice to Sir John Kerr through post-1975 eyes is unfair. In the context of the time, his actions were not inconsistent with those of his predecessors or his colleagues.

The primary objection to a judge giving informal advice to a vice-regal officer on a constitutional matter is that the matter might later come before the court. This was recognised by the Justices of the NSW Supreme Court when they agreed to advise the Governor in 1856 on the transition to responsible government. The Chief Justice, Sir Alfred Stephen, writing to the Governor, Sir William Denison on 8 February 1856, observed:

It is right to remind you, that in giving our views in the capacity rather of lawyers than of judges, without argument (or the means of hearing arguments) from any party to be affected by them, we may possibly hereafter, should the same question arise in the course of any judicial proceeding, see occasion to change these views, and that it will be our duty in the event of discussion to keep our minds open to change.

The other alternative is for a judge to decline to sit on a matter upon which he or she has previously advised. It should be remembered, however, that the likelihood of the exercise of the Governor-General’s reserve power to dismiss a Prime Minister being regarded as justiciable by the High Court in 1975 was extremely low. The question of whether the double dissolution criteria had been met could have come before the Court, but it does not appear that Sir Anthony advised upon that issue.

Since 1975, there have been significant changes. Some decisions of Governors-General have become subject to judicial review (see: R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council (1981) 151 CLR 170; and FAI Insurances v Winneke (1982) 151 CLR 342), but even now it is unlikely that the exercise of a reserve power would be regarded as justiciable. The High Court has also developed a stricter separation of powers, particularly when it comes to judges fulfilling roles that involve advising the executive, even as persona designata (see: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1). Yet all this, which we can see with the benefit of hindsight, could not have been seen in 1975.

Today, it would be unwise for a judge to advise a vice-regal representative. This has not, however, completely stopped this practice from occurring. In 1985, only ten years after the dismissal, the Victorian Governor, Sir Brian Murray, facing the prospect of dismissal from office, sought advice from the Victorian Chief Justice. The Chief Justice wisely refrained from advising but one of the other judges, Sir John Starke, who was shortly to retire, did provide advice to the Governor. Again, this is only known because of archival work. No doubt other examples also exist.

Perhaps the last word should go to the current Chief Justice of the High Court, Robert French. Taking into account the controversy surrounding the 1975 dismissal and the uncertainty concerning the justiciability of acts of the Governor-General, he concluded in his article ‘The Chief Justice and the Governor-General’ (2009) 33 MULR 647, at 656:

[I]t is difficult to conceive of circumstances today in which it would be necessary or appropriate for the Chief Justice to provide legal advice to the Governor-General on any course of action being contemplated by the holder of that office, whether such advice were tendered with the prior consent of the government of the day or otherwise. If, in some constitutional crisis requiring consideration of the possible exercise of reserve powers, the Governor-General felt the need to seek independent legal advice, there are plainly sources other than the Chief Justice to whom he or she could resort.

From time to time there are calls for Parliament to stop opening its proceedings with prayers. Equally, there are those who support the practice. For example, former prime minister, John Howard once said that to get rid of parliamentary prayers would be to ‘abandon our Judeo-Christian heritage’.

But why does Parliament open with prayers and is the practice legal?

Why Parliament prays

Parliament did not introduce prayers because of ‘our Judeo-Christian heritage’. It introduced prayers in response to lobbying from churches.

During the 1890s when the Constitution was being drafted, the colonial churches began a campaign of petitions calling for three things. The petitions read:

1. That in the preamble of the Constitution of the Australian Commonwealth it be recognised that God is the Supreme Ruler of the world, and the ultimate source of all law and authority in nations.

2. That there also be embodied in the said Constitution, or in the standing orders of the Federal Parliament, a provision that each daily session of the Upper and Lowers Houses of the Federal Parliament be opened with a prayer by the President and Speaker, or by a chaplain.

3. That the Governor-General be empowered to appoint days of national thanksgiving and humiliation. The Constitutional Convention drafting the Constitution received 49 petitions to this effect containing more than 36,000 signatures. That was a very large number in the 1890s.

The petitioners achieved two of their aims. The preamble to the Constitution says that in deciding to federate the Australian people were ‘humbly relying on the blessing of Almighty God’. And prayers began in Parliament in June 1901.

It is interesting to note that the Constitutional Convention did not start its day with prayers. And, only some of the colonial Parliaments had prayers. Indeed, some of them had even abandoned the practice by the time of the Constitutional Convention. Some of the delegates to the Constitutional Convention considered the parliamentary practice to be a ‘farce’, ‘a perfect piece of mockery’ and a ‘matter of … indifference’.

What are the prayers?

There are two parliamentary prayers. In the House of Representatives the Speaker reads the following prayers:

Almighty God, we humbly beseech Thee to vouchsafe Thy blessing upon this Parliament. Direct and prosper our deliberations to the advancement of Thy glory, and the true welfare of the people of Australia.

Our Father, which art in Heaven: Hallowed be Thy Name. Thy Kingdom come. Thy will be done in earth, as it is in Heaven. Give us this day our daily bread. And forgive us our trespasses, as we forgive them that trespass against us. And lead us not into temptation; but deliver us from evil: For Thine is the kingdom, and the power, and the glory, for ever and ever. Amen.

The first prayer in the Senate read by its President has a minor difference in wording.

Are these prayers ‘Judeo-Christian’? You can probably recognise the second prayer as the Lord’s Prayer. But it is not generically Christian.

There are two versions of the Lord’s Prayer: a Catholic one and a Protestant one. The difference is the line ‘For thine is the kingdom, and the power, and the glory, for ever and ever’. That line appears only in the King James Version of the Bible used by Protestants.

When the prayers were introduced in the House of Representatives in 1901, the Catholic Archbishop of Melbourne at the time called them ‘distinctly Protestant’.

The first prayer is not just distinctly Protestant it is also distinctly Anglican. It is a modified version of the ‘Prayer for the High Court of Parliament’ in the Church of England’s Book of Common Prayer.

Is it legal?

As it happens, there are also petitions relevant to this question.

The churches were not the only ones sending petitions to the Constitutional Convention in the 1890s. Petitions with almost 8,000 signatures were sent to the Convention asking it to ensure that the Commonwealth would not be able to legislate to interfere with religious liberty.

These petitions were largely organised by the Seventh Day Adventists who were worried that any reference to God in the Constitution might be seen as giving the Commonwealth power to legislate for religious matters. They feared they might be on the receiving end of any such legislation.

They got what they wanted too. At the end of the Constitutional Convention, its president Edmund Barton, who later became Australia’s first prime minister, explained what had been decided:

While, therefore, a concession has been made to the popular opinion that some reverential expression should be embodied in the preamble, due care has been taken by the Convention that no reliance upon that provision, and no far-fetched arguments based upon it, shall lead to any infraction of religious liberty under the laws of the Commonwealth which we hope to create

The due care was section 116 of the Constitution. It says:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

So, do the standing orders requiring parliamentary prayers violate section 116? The prayers appear to closely identify Parliament – the heart of the Australian state – with Protestant Christianity. After all, the first prayer says that Parliament works to the advancement of God’s glory. This might be seen as involving some sort of religious establishment.

The standing orders also rather look like they impose a religious observance. They command the Speaker (and the President of the Senate) to read the prayers. Mandatory prayer might also be seen as an interference with the free exercise of religion.

Even if all of this were accepted it would only make the prayers unconstitutional if the standing orders requiring they be read are ‘laws’. There are arguments for and against that conclusion, and the answer is not clear.

That said, one politician seems to have had a point when he said in opposing the introduction of parliamentary prayers in 1901:

What did the framers of the Constitution mean? Did they mean that the Parliament was not to impose religious observances in the streets or in the schools? Did they mean that Parliament was not to impose religious observances anywhere else but here?

If you look closely at section 116 you will see that its final clause about religious tests is not limited in its application only to laws. If it were to be accepted that the requirement to read prayers every day amounts to a religious test for the position of Speaker (and also President of the Senate) then there might well be constitutional problems with the parliamentary prayers.

Legalities aside, given that in the 2011 census nearly half of the population reported either being Catholic (25.3%) or having no religion (22.3%) it might be wondered why Parliament continues to say distinctly Protestant prayers every day.

The answer will depend upon two decisions which ultimately the High Court would have to make, assuming that the constitutional validity of the Tasmanian law would be challenged. The first is whether the Commonwealth Parliament’s constitutional power in s 51(xxi) to make laws with respect to ‘marriage’ extends to the marriage of same-sex couples. If the answer is ‘No’, then there would be no issue of a conflict between State and Commonwealth laws and a State Parliament, exercising its plenary legislative powers, could enact laws concerning same-sex marriage (although there may be an argument about whether the term ‘marriage’ ought to be used in such circumstances). If the answer is ‘Yes’, then the High Court would have to decide whether there was an inconsistency between any State law on marriage and the Commonwealth’s marriage law. If there was an inconsistency, then the Commonwealth law would prevail and the State law would be inoperative to the extent of the inconsistency.

The meaning of ‘marriage’ in the Commonwealth Constitution

Whether the Commonwealth Parliament has the power to legislate with respect to the marriage of same-sex couples will depend upon the approach to constitutional interpretation taken by the Court. If an originalist approach is taken, the Court will consider the contemporary meaning of the term ‘marriage’ at the time the Constitution was enacted in 1900. In doing so, it would take into account the common law, the statutes and the practice of the late nineteenth century. In 1866 Lord Penzance, in Hyde v Hyde, defined marriage as being ‘the voluntary union for life of one man and one woman, to the exclusion of all others’. This definition is likely to be regarded as representing the meaning of the term ‘marriage’ at the time the Constitution was enacted. It has been adopted by Australian courts from time to time in interpreting the meaning of ‘marriage’ in the Constitution. For example, Justice Brennan applied it in The Queen v L (1991) 174 CLR 379, 391-2.

The constitutional definition of ‘marriage’ cannot be expanded by the Parliament. As Justices Mason and Deane noted in Re F; ex parte F (1986) 161 CLR 376, at 389:

Obviously, the Parliament cannot extend the ambit of its own legislative powers by purporting to give to “Marriage” an even wider meaning than that which the word bears in its constitutional context.

However, the High Court can expand its meaning by way of constitutional interpretation if it is to take a non-originalist approach. It could look to the meaning of ‘marriage’ today, taking into account ‘contemporary understandings of its meaning’ including changes in the meaning of language and the different social circumstances in which the language applies. Justice McHugh explained these two contrasting approaches in Re Wakim; Ex parte McNally (1999) 198 CLR 511, where he said at 553:

[I]n 1901 “marriage” was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably “marriage” now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.

The difficulty, however, if one takes a non-originalist approach, is identifying at what point the contemporary meaning of a term has changed and what level and evidence of community support is needed to justify a change in constitutional meaning. Given the current highly contested political debate on the meaning of ‘marriage’ this would be a difficult decision for the High Court to make.

Inconsistency of laws on marriage

If the High Court decided that the Commonwealth Parliament does have the power to legislate about same-sex marriages under s 51(xxi) of the Constitution, then a question would arise as to whether any Tasmanian law on the subject would be inconsistent with a valid Commonwealth law on the subject. The Marriage Act 1961 (Cth) provides in s 5 that ‘"marriage" means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’ It picks up Lord Penzance’s definition from 1866 and would safely fall within an originalist interpretation of s 51(xxi) of the Constitution. The Marriage Act then sets out the requirements for all marriages solemnised in Australia and sets out the pre-conditions for marriage and the circumstances in which marriages are invalid.

The question would be whether the proposed Tasmanian law would be inconsistent with the Marriage Act. This would depend upon the wording of the Tasmanian law. If the Tasmanian law purported to give to same-sex couples the legal status of being ‘married’ for the purposes of all law across Australia, including Commonwealth law, this would give rise to a direct inconsistency with the Marriage Act, as it would be purporting to grant people a status which is denied to them by a Commonwealth law. It would therefore be inoperative to the extent of this inconsistency.

In any case, it would be beyond the legislative powers of the Tasmanian Parliament to purport to confer on persons the status of ‘married’ for the purposes of laws in other States or the Commonwealth. Hence, a Tasmanian same-sex marriage, even if made under a valid and operative Tasmanian law, would not give the same-sex couple any of the legal rights of a ‘married’ couple under Commonwealth law or under the law of any other State (unless the States or Commonwealth legislated to recognize the status of same-sex couples married in Tasmania or the courts interpreted existing laws widely enough to pick up a married status under Tasmanian laws). Same-sex couples married in Tasmania would most likely not, in effect, be legally ‘married’ for any purposes other than Tasmanian laws. This might dampen the anticipated tourist trade in same-sex weddings, if such a ‘marriage’ would not change the couple’s marital status on mainland Australia.

Even if the Tasmanian law was drafted so as to confine its effects to Tasmanian laws, it might still be held to be inconsistent with the Commonwealth’s Marriage Act to the extent that the Commonwealth law was regarded as ‘covering the field’ of marriage. Although the Marriage Act confines its definition of marriage to opposite sex couples, it is likely to be argued that it was intended to cover the entire field of marriage within Australia and to prohibit marriage of same-sex couples, just as it prohibits certain other marriages, including marriages between certain family members. Section 48 states that marriages solemnised in Australia otherwise than as stipulated by the provisions of the relevant division are not valid. Section 88EA also says that a union solemnised in a foreign country between a man and another man or a woman and another woman must not be recognized as a marriage in Australia. These provisions suggest an intention to cover the field. While s 6 of the Marriage Act states that the Act shall not be taken to exclude the application of State laws in so far as they relate to the ‘registration’ of ‘marriages’, this is only directed to registration – not the solemnisation of marriages and it is also confined to ‘marriages’ as defined by the Act.

Conclusion

A Tasmanian law permitting same-sex marriage, even if operative, would do little more than facilitate the holding of a ceremony, the consumption of champagne and the taking of photos. It might confer on the parties to a same-sex marriage the status of ‘married’ for the purposes of Tasmanian legislation, but it is most unlikely that they would be regarded as legally ‘married’ for the purposes of Commonwealth law or under the law of any other State and would therefore not attract any legal benefits or status accorded to a married couple.

In addition, there is a distinct possibility that such a law would be held to be inoperative because it is inconsistent with a valid Commonwealth law. It is therefore not yet time for same-sex marriage proponents to crack open the champagne.

A court decides that government activity is invalid because it is inconsistent with representative government. The government’s response to the decision is carried out in a way that marginalises the operation of representative government. Ironic?

The Financial Framework Legislation Amendment Bill (No 3) 2012 (Cth) became law on 28 June 2012 with all of the media fanfare that legislation of that title deserves. The Bill sought to authorise spending by the Commonwealth government on more than 400 executive funding schemes by amending the Financial Management and Accountability Regulations 1997 ('the Regulations') to list all of the relevant schemes. The genesis of the Bill in the High Court’s decision in Williams v Commonwealth [2012] HCA 23 and the level of parliamentary scrutiny (or lack thereof) that the Bill received in the House of Representatives are discussed by Anne Twomey in an earlier post on this Blog here: http://blogs.usyd.edu.au/cru/2012/06/parliaments_abject_surrender_t_1.html. The concerns raised in the House of Representatives by the Opposition and Greens members were repeated in the Senate. In the end, however, it seems that a feeling prevailed that it was better to do something than nothing to save the chaplains program. The unamended Bill was given Royal Assent less than 48 hours after being introduced. It became the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth) (‘the Amending Act’) and all the concerns voiced were consigned to the relevance of extrinsic material.

What the government appears to have overlooked is that the High Court’s requirement for legislative support for the chaplains program was driven in part by concerns about representative government and the lack of parliamentary oversight of Commonwealth spending on executive funding schemes. Leaving aside the substantive provisions of the Amending Act, even the government’s choice about how to effect the changes to the the Regulations suggests that giving full effect to representative government was not a priority.

Delegated legislation, of which the Regulations are an example, is commonplace in government regulation these days. Accusations of Executive usurpation of governance, at the expense of the Parliament, are frequently levelled at governments due to their increasing reliance on administration by regulation rather than legislation. The decision to locate the schemes in the Regulations rather than in an Act would have raised some eyebrows in this regard.

However, because of their ever-expanding role in administration, the making of regulations is itself strictly governed by legislation. The Legislative Instruments Act 2003 (Cth) sets out detailed requirements for the drafting, consultation, publication and parliamentary scrutiny of legislative instruments (which include the Regulations). The consultation and parliamentary scrutiny provisions apply whenever a new regulation is made, even where all the new regulation does is amend an older regulation. New regulations remain open to a disallowance motion for 15 sitting days after being tabled in each House of Parliament. A disallowance resolution can be passed by either House of Parliament within 15 sitting days of a disallowance motion being moved. However, these provisions do not seem to apply when a regulation is amended by an Act of Parliament rather than another legislative instrument. The rationale for this distinction appears clear: why subject an Act, which has already been passed by both Houses of Parliament, to further parliamentary scrutiny? If anyone had a problem with it, the problem would have been raised during the debates or committee stages. And in ordinary cases this would be a fair and complete answer to the lack of provision for disallowance.

What does all of this mean for the passage of the Amending Act and the consequential changes to the Regulations? Because the actual insertion of all of the schemes into the Regulations was achieved by an Act and not a legislative instrument, none of the schemes are open to disallowance by either House of Parliament. In the particular circumstances of the passing of the Amending Act the disallowance procedures might have been preferable from the perspective of representative government, as the following scenario demonstrates:

1. The Act would have been passed and the amending regulations duly made and registered on the Federal Register of Legislative Instruments (better known as comlaw.gov.au), thereby taking almost immediate effect to preserve all presently existing schemes.

2. Even if the amending regulations were not tabled in each House immediately, the passage of the Amending Act would have alerted the Opposition and cross-benchers to their existence and they could have obtained a copy from the register.

3. The Opposition and cross-benchers could have taken the winter Parliamentary recess to consider whether they supported each scheme in the Regulations.

4. A disallowance motion could be moved within 15 sitting days of the amending regulations being tabled in each House. On the present Parliamentary sitting calendar, that period might not expire until 20 September 2012 (later if the amending regulations were not tabled in each House until after the winter recess) and it is possible that a motion would not have to be voted on until February 2013.

5. By that stage the Opposition and cross-benchers might have agreed on at least some of the schemes that they wanted deleted from the Regulations and a disallowance motion could have had the numbers to pass the relevant House.

While the process would have delayed the provision of certainty to administrators and recipients under the schemes, it would have at least ensured that the elected representatives had the proper time and resources to consider each and every scheme carefully. In this instance, it seems that changing a regulation by Executive-made regulations would have been truer to the concept of democracy and representative government than ordinary parliamentary processes.

As to why the government chose the Act route rather than the amending regulations route, one can only speculate. It certainly can’t have been because they did not want to trouble the Governor-General for another signature. The Governor-General made a new regulation amending the Regulations on 28 June 2012 (Financial Management and Accountability Amendment 2012 (No 3) (Cth)) but this had nothing to do with the enormous change that occurred to the Regulations on that very day courtesy of the Amending Act.

Going forward, it may be open to the government to amend the schemes either by Act or by amending regulation. In either case, the broad wording of the schemes in the Regulations means that the Opposition and cross-benchers are going to have to ask detailed questions of the government to ascertain precisely what the amendment entails. And that will only arise in the cases where the Regulations need to be changed. The Amending Act permits spending pursuant to schemes that either are listed in the Regulations, belong to a class of schemes listed in the Regulations or are for a purpose of a program listed in the Regulations. When the broad wording of this power is put together with the broad wording of the schemes, it seems that the Regulations will not need to be amended very often. This means that new executive funding schemes will not be subject to parliamentary scrutiny very often. And this, together with what has already occurred, means that the High Court’s concerns about representative government that led to the Amending Act in the first place have not been allayed by it whatsoever.