Marriage equality debate raises issues at the heart of Australia’s constitution

25 September 2017

Marriage equality debate raises issues at the heart of Australia’s constitution

Australia stands almost alone in the Anglosphere in its lack of marriage equality, with only Northern Ireland to keep it company. Canada, Ireland, New Zealand, South Africa, most of the United Kingdom, and the United States have all achieved marriage equality over the past decade-and-a-half, through a variety of judicial and legislative mechanisms.

Australia is a special case, not just because it has so far held out against what seems to be inevitable, but because it neither faces the difficulties experienced in other jurisdictions, nor can it benefit from similar circumstances. The achievement of marriage equality is both discouraged and encouraged by the Australian Constitution, and ultimately it is a lack of political will that stands in the way.

Unlike Canada, South Africa and the United States — or indeed most liberal western democracies — Australia does not have a constitutional bill or charter of rights. The limited rights protected in Australia do not include a prohibition of discrimination on the basis of gender, sex or sexual orientation. Even if the Constitution was creatively construed, there’s nothing on which to base an implied right of that nature.

As a result, same-sex couples cannot have discriminatory marriage laws reviewed by the courts. Judicial review is well-established in Australian constitutional law, but the Constitution lacks any grounds on which to find the current definition of marriage (an exclusive union between one man and one woman) in the Marriage Act unconstitutional.

In stark contrast, provincial courts in Canada and state and federal courts in the United States were able to overturn discriminatory marriage laws on the grounds of being unconstitutional. In both Canada and the United States this progressive regional approach eventually culminated in the nationwide realisation of marriage equality. And South Africa, as a unitary state rather than a federation, did not have to experience progressive regional realisation — the 2005 determination of the Constitutional Court that the discriminatory definition of marriage was unconstitutional applied nationwide immediately.

At the same time, marriage equality cannot be progressively realised by regional legislation in Australia without first amending or repealing the federal Marriage Act. By comparison, the United Kingdom has achieved marriage equality across three of its four constituent parts (England, Scotland and Wales) through ordinary legislative processes, as did ten American states and the District of Columbia between 2009 and 2013.

In Australia, jurisdiction over many areas of law is concurrent, including marriage — both the federal and state Parliaments (and territorial legislative assemblies) may make laws concerning marriage. However, if the federal Parliament intends to provide a single legislative framework — ‘cover the field’ — to the exclusion of all other laws, this invalidates state and territory legislation on that topic. The effect of this was seen when the High Court determined that the Australian Capital Territory’s Marriage Equality (Same Sex) Act 2013 was invalid for inconsistency with the federal Marriage Act.

Ireland’s realisation of marriage equality required a referendum to amend its constitution. While the Irish Constitution did not explicitly prohibit same-sex marriage, it was seen by the courts to contemplate a definition of marriage as being a heterosexual union, which the Constitution obliges the State to protect. The Irish Constitution may only be amended by legislation approved by the Oireachtas (Parliament) and by the people at a referendum. Consistent with this, the Constitution was amended in 2015 to prohibit discrimination in marriage on the basis of sex.

Australia doesn’t face this barrier. It doesn’t need to have a nationwide vote to realise marriage equality. Although the Australian Constitution can’t be leveraged for the purposes of judicial review on this matter, and while it effectively prevents the states and territories from independently legislating for same-sex marriage, it doesn’t tie the hands of the federal Parliament by requiring a referendum on marriage. The result is that the matter of whether same-sex couples will ever be permitted to marry in Australia is entirely in the hands of the federal Parliament — just 226 MPs and Senators.

Currently, however, Australia faces a legislative deadlock between its two houses of Parliament. While the House of Representatives has consistently preferred to hold a plebiscite (a non-binding national vote), the Senate has consistently rejected this in favour of holding a parliamentary conscience vote (or ‘free vote’) in which MPs and Senators are not constrained by their parties’ policies. Continuing the theme of this article, New Zealand did not face this issue when legislating for marriage equality, as it has had a single chamber since 1951.

The Liberal-National Party coalition Government’s policy of holding a plebiscite has been presented as an election promise and naturally the Government continues to refuse to back down. This has proven politically expedient for the Government, as it has been able to (with some accuracy) blame the Labor Party opposition for holding up the progress of same-sex marriage by blocking it in the Senate, while many prominent members of the Government have publicly stated their support for marriage equality, including Prime Minister Malcolm Turnbull,  Attorney-General George Brandis, and Foreign Minister Julie Bishop.

Equally, the Senate has rejected legislation for a plebiscite. The Senators are in the unenviable position of defending their view that Parliament should fulfil its function by enacting legislation without first conducting what is arguably a glorified opinion poll. It could be said that deferring to the public defeats the very purpose of electing representatives to vote according to what they believe are the best interests of their electorates.

The result of this legislative deadlock has been a shift from a compulsory and formal plebiscite to a voluntary and informal postal survey. This is attractive to the Government because it believes it does not need to pass legislation to conduct the survey, and fundamentally it sticks to the spirit of the Government’s election promise to give every voter the opportunity to have their say on the matter.

It remains unattractive to the majority of the Senate because it still outsources the decision-making process to an extent, will continue to delay the progress toward marriage equality (the result will not be known until mid-November), and, like the result of the plebiscite, it will not be binding on parliamentarians. Critics have also raised concerns about the cost of the survey (estimated at $122 million) and the competency of the Australian Bureau of Statistics to carry it out has been questioned, given the controversial running of the 2016 census. And then there are the matters that opinion polls have consistently returned a favourable result for marriage equality advocates, with an inconsequential margin of error, and that it is virtually unheard of to conduct a survey of this scale before passing legislation — why do same-sex couples need a nationwide survey before they can be equal in marriage?

Perhaps the most significant criticism is that the survey will not have the same restrictions on campaigning as would be imposed via legislation. This has led to enormous concern over the ability for the debate to be carried out in a mature, reasonable, rational or respectful manner, and the effect it might have on same-sex couples and more broadly members of the LGBT+ community.

But while campaigning has begun, it may have all been for nothing. The High Court of Australia has heard two challenges against the running of the postal survey. The first challenge was brought by Andrew Wilkie MP, Ms Felicity Marlowe and PFLAG Brisbane Inc, and the second challenge was brought by Australian Marriage Equality Ltd and Senator Janet Rice.

The challenges, which were heard together on 5–6 September 2017, alleged that the use of the Australian Bureau of Statistics to carry out the survey exceeds the Bureau’s legislative ambit and that the Government cannot spend $122 million without Parliamentary approval. While the Government was confident that the challenge would fail, constitutional law experts expressed doubts that the Government would be able to proceed with the planned survey.

The decision of the High Court was given on 7 September 2017, and upheld the Government’s position. Consequently, the planned survey is currenlty underway. If the result of the survey is in favour, Australians should see Parliament vote on legislation to establish marriage equality by the end of the year.

But regardless of this outcome, Australia is in a unique position compared to the rest of the Anglosphere. This might give Australians pause for thought. The matter of marriage equality has taken a long time to be resolved, and if it the decision had gone against the Government, the deadlock would have continued. It raises questions about the fundamental nature of the Australian federation.

The regulation of marriage at the federal level prevents states and territories from determining their own marriage laws, regardless of whether they have the political will to do so. Is it necessary to regulate marriage nationwide, or is this something best left to the states and territories?

Many progressive American states were able to achieve marriage equality via legislation, well before the Supreme Court declared that prohibitions of same-sex marriage were unconstitutional in 2015. Devolution in the United Kingdom allowed England, Wales and Scotland to choose marriage equality, and Northern Ireland to decline. What might be the result in Australia if individual states could make the same choices?

And what of those countries that have strong protection of human rights and civil liberties embedded in their constitutions? Are the rights of Australians adequately protected, or is it time to seriously consider the deficiency of the Constitution in this area and include more substantial rights protection? The process of judicial review has proven remarkably effective at eliminating discrimination elsewhere. Is it time to address the lack of power Australian courts have when considering issues of human rights?

What about the role that the people play in Australian democracy? The Irish Constitution provides not just for referenda to amend the Constitution, but also for the referral of legislation of national importance to the people. Should the Australian Constitution recognise the interest that the Australian people have in democratic processes where nationally-significant legislation is concerned? Or should it reiterate that Australia is a representative democracy in which the will of the people is expressed through elections rather than direct voting?

Marriage equality is an important issue to many Australians, but it is merely the tip of the iceberg when viewed in context. The legislative deadlock is so significant because constitutionally there is no way around it, short of holding a double dissolution election and re-electing both houses of Parliament, which actually resulted in the current Parliament. Whether Australia achieves marriage equality is entirely up to the federal Parliament — the states and territories, the people, and the courts have no constitutional power to do anything about that.