Defining a marriage

The classic definition of marriage was formulated by Lord Penzance in the case of Hyde v Hyde when he said: "I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."

The ACT Government originally introduced legislation into its Legislative Assembly to allow people to register a civil union to provide the “functional equivalence” of marriage.

It later removed provisions automatically empowering civil celebrants to conduct civil unions to head off a Federal Government threat to the override the law.

It also inserted a provision reading:

A civil union is different to a marriage but is to be treated for all purposes under Territory law in the same way as a marriage.

Prior to 2004 there was no legislative definition of what is a marriage in Australia.

However, the Federal Parliament passed the Marriage Legislation Amendment Act 2004 to define a marriage as a union between a man and a woman to make clear (as the prime minister put it) “that that is our view of a marriage and … the definition of a marriage that should rest in the hands ultimately of the parliament of the nation and should not over time potentially be subject to redefinition or change by courts”.

There were probably good grounds to do this if that is your view on what constitutes a marriage.

The case of Singh v the Commonwealth considered whether the meaning of the word “alien” had altered since the constitution commenced operation in 1901.

In a footnote to the case, the High Court indicated the meaning of the term “marriage” could have changed, such that the concept of marriage could, by reason of changing circumstances, extend to a voluntary and permanent union between two people.

And in re Wakim; ex Parte McNally, a case dealing with the otherwise esoteric subject of whether a federal court could be vested with the powers of a state supreme court, Mr Justice McHugh said it was arguable that "marriage" now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.

The Australian constitution confers on the Federal Parliament power to make laws about marriage and divorce and matrimonial causes.

Some commentators have already argued that legislation purporting to be the functional equivalent to legislation breaches that part of the Self Government Act the equivalent to section 109 of the constitution, which says that where an ACT law is inconsistent with a federal law, the latter prevails.

If you take the view that “marriage” only relates to the actual ceremony conducted by a priest or civil celebrant, and that’s all, then all is well.

However, if you take the view that “marriage”, as used in the constitution means the Federal Government has the power to legislate about the concept of what constitutes a valid union between two people in Australia means you can question whether any state or territory scheme registration scheme (including the scheme in Tasmania) is valid - because of the emphatic 2004 provision saying "marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.

Many will argue that because the ACT proposes a civil union scheme, it’s OK because it isn’t called  “marriage”.

However with both marriage and civil registration, you can only be in one relationship at a time. And, for all intents and purposes under ACT law, a civil union is the same as a marriage.

To argue the ACT scheme is not an attempt to directly mimic marriage is the ultimate victory of style over substance.

Sir Owen Dixon said in Victoria v Commonwealth that if it appeared a federal enactment intended to be as a complete statement of the law governing a particular matter, a state law attempting to regulate the same matter was inconsistent and therefore unconstitutional.

So, in the case of Viskauskas v Niland, which dealt with the issue of whether NSW anti-discrimination law could operate in a circumstance where the Federal Government had comprehensively legislated in the area, the High Court found that the Federal Government intended to “cover the field” as to how to deal with discriminatory behaviour, even though it was possible for someone to obey both NSW and Federal Government anti-discrimination legislation.

Ultimately, section 6A had to be inserted into the Racial Discrimination Act to allow relevant federal and state laws to still continue to operate.

Now, if the ACT can’t establish its civil union scheme because of its functional equivalence to marriage, does it mean that same sex couples won’t be able to ever have legislative recognition of their relationships?

The answer is that the issue isn’t a state or territory one - it is federal, with the cure a further change to the amendments to the Marriage Act.

This means the argument is really the reverse of the RU486 debate.

While RU486 is a ground-up abortifacient, and the debate about whether the drug could be used in Australia led to a standard debate about abortion, the ultimate decision of whether abortion is legal is a state issue - not a federal one.

Here, while states can allow same sex couples to adopt children (for example), the issue of making laws regarding the legal recognition of couples is an assigned federal issue exhaustively dealt with by the Australian Parliament.

One suspects this issue has a way to run.