Australians are being short-changed and rushed to judgment on same-sex marriage: short-changed because their Constitution has been misinterpreted, and rushed because the politicians want to get it approved by a plebiscite and finished with as quickly as possible.
Very few people outside legal and political circles are aware that the federal government now has the power to legislate the introduction of same-sex marriage because of a highly-criticised constitutional decision by the High Court of Australia in 2013.
In enumerating the legislative powers of the Parliament the Constitution identifies a host of subjects, including marriage, in a long list of sections and sub-sections. Sub-section 51 (xxi) contains the single word “Marriage” but does not define it. Sub-section 51 (xxii) reads: “Divorce and matrimonial causes, and in relation thereto, parental rights and the custody and guardianship of infants.”
In 2004, the federal Parliament decided that marriage may be defined in the Marriage Act as: “The union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” In doing so, it was believed that such a definition was consistent with the common law and with the intentions of the framers of the Constitution that was overwhelmingly approved by the people in 1900.
Having dealt with a case in 2013, the High Court went on — unnecessarily in the view of some lawyers — to investigate the meaning of the word ‘marriage’ in the Constitution and how it should be defined. Their decision radically overturned the understanding reflected in the 2004 definition by the Parliament, and the intentions of the framers of the Constitution.
The High Court said this: “Marriage is to be understood in s.51 (xxi) of the Constitution as referring to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.”
And: “When used in s 51(xxi), “marriage” is a term which includes a marriage of persons of the same sex”
This finding has been made within a rubric of interpretation at odds with a long tradition of constitutional law. It was expressed in 1959 by a former justice of the High Court, W.J. Windeyer as follows: ‘We are not to give words a meaning different from any meaning they could have borne in 1900.”
The Constitution is the instrument by which the people of a nation declare the fundamental character of their institutions and their intention that that character be maintained until they, in their judgment, believe that the time has come for change and adaptation to what they believe to be improvements. The means at their disposal when that time comes is a referendum of the whole nation – in our case a federation – and one fitting that political arrangement .
In our present situation, a referendum is not obligatory despite the fact that the High Court’s finding confronts us with a profoundly important change to our understanding of marriage. Marriage, and the family life it best sustains, is at the centre of our society. Could there be a more important reason for resorting to a referendum instead of a mere plebiscite?
We must deal with the implications of this extraordinary and unexpected judgment that has been strongly criticised, to the point of denunciation, by distinguished lawyers and experts in constitutional law.
The charges include the claim that the High Court went beyond the accepted principles of constitutional interpretation; that the court’s proceedings took place in the absence of those who might have contradicted the court’s arguments; that the principles underlying the court’s mode of argument were flawed, and that the decision to undertake an interpretation of ‘marriage’ in the Constitution might, arguably, be seen as obiter dicta, or opinion carrying no authority.
This has created a situation where the Constitution and the understanding of the meaning of marriage have, in effect, been opened up to a change of constitutional stature without the people’s approval of a formal constitutional alteration.
At the present time, the 2004 definition of marriage in the Marriage Act is the law. To introduce same-sex marriage requires federal legislation. The Parliament has the power now to proceed at any time, with or without a plebiscite or referendum. But the Prime Minister and the Attorney-General have indicated they would like to proceed with a plebiscite to test public opinion before the end of this year.
To proceed in this way diminishes the democratic choice of the Australian people to properly determine the issue by referendum, rather than simply giving an opinion and then leaving it to the politicians. We are treating the future of marriage as of less importance than Aboriginal recognition in the Constitution — scheduled for a referendum next year.
Why not include a referendum on same-sex marriage with a referendum on Recognition at the same time? This would solve Bill Shorten’s concern about cost while giving same-sex marriage the supremely democratic opportunity its constitutional stature deserves.
Six judges of the High Court have given us their conclusion. It is appropriate and proper that it be put to judgement, and determination of the nature of marriage, by the millions of Australian citizens through the supremely democratic instrument of a referendum.
Barry Maley is a Senior Fellow at the Centre for Independent Studies and author of the paper The High Court and Same Sex Marriage.