Britain has a conservative Prime Minister; Australia has just elected one.  However, whilst Britain’s Prime Minister wants to permit gay marriage, the new Australian Prime Minister is on the record as opposing it.  In Britain the Westminster Parliament has unfettered power to legislate as it pleases, but not so in Australia where the Federal Government and the States have distinct fields of power set out in the Constitution.

Under Section 51 (xxi) the Commonwealth Federal Government has power over the subject of marriage.  However the powers reserved to the Commonwealth in Section 51 are concurrent powers, meaning that unless the Commonwealth legislates to “cover the field”, the States retain their intrinsic legislative powers.  For that reason State law defined and regulated marriage for 60 years after Federation, and the Commonwealth did not exercise its power until the Marriage Act 1961 was enacted.

This is different to the position in America, where the power to regulate marriage was left with the States.  Hence the US faces the interesting problem of some States recognising gay marriage and some States passing laws to define marriage as a union between a man and a woman.  That leads to the difficulty in America that the Constitution demands that “due recognition” be given by one State to the enactments of another.

In Australia at time the 1961 Act was passed there was no debate about the definition of marriage.  In this century, as debate intensified, socially conservative forces in the Federal Parliament amended the Marriage Act in 2004 to define marriage as a union between a man and a woman, and to declare that any existing same sex marriage from another country was not to be recognised in Australia.

This presents a potential constitutional difficulty perhaps of its own making for the Federal Government.  If marriage is to be defined as a union between a man and a woman, what is to stop a State extending the definition of marriage for its own jurisdiction to include gay marriage?  At State and Territory levels same sex marriage has a form of recognition in “de facto” relationships, but would extending the definition of marriage create an inconsistency with Commonwealth law?

In May 2013 an Ipsos poll found that 54% of respondents in Australia were in favour of same sex marriage and another 20% supported other forms of recognition for same sex couples.  If it is thought likely that Australia will follow the lead of countries such as its closely synonymous neighbour New Zealand, then it is probably only a matter of time before one of the States legislates to recognise gay marriage.

Then it will be for the High Court of Australia to determine whether the State law is inconsistent with the Federal Government’s attempt to cover the entire field in relation to marriage.  Which will bring us around to full circle, just how do you define a marriage?

It also presents the incessant problem of Constitutional interpretation, do you look at the intentions of the writers of the document (who worked on it for several years in the 1890s) or do you interpret the meaning of the word “marriage” by reference to modern mores?

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