An Australian Christian group has been circulating a legal opinion amongst members of the Tasmanian Upper House that claims state legislation creating same-sex marriages would be unconstitutional ahead of a vote on the issue on Wednesday, but a leading Australian constitutional law expert says the issue is anything but settled.
A legal opinion drafted by Neville Rochow SC for Christian group FamilyVoice Australia claims that ‘any state same sex marriage legislation like the bill, would be beyond the legislative power and competence of that state.’
‘The Tasmanian bill, if passed is likely to be unconstitutional and invalid,’ Rochow wrote.
However Rochow himself testified to the Australian Parliament earlier this year that state based same-sex marriage laws could be possible.
Rochow, who is a board member of the J Reuben Clark Law Society which ‘affirm[s] the strength brought to the law by a lawyer's personal religious conviction,’ appeared before a Senate Legal and Constitutional Affairs Committee inquiry in May to speak for the group Lawyers for the Preservation of the Definition of Marriage, and told senators, ‘there is nothing to stop [a] state passing a bill that says, “This is a bill regarding same-sex marriage.”
Rochow told senators that ‘marriage’ had been defined under the federal constitution as a union between a man and a woman, but states should be able to legislate for ‘same-sex marriage’ under state law that was defined as a separate institution for two people of the same sex.
‘For something called 'same-sex marriage' or 'gay marriage' or 'state based marriage', there would be no problem,’ Rochow said.
However Rochow told GSN that his comments in the Senate had been hypothetical in nature and at the time he had not ‘seen or considered any specific legislation.’
‘Since those committee hearings, I have been instructed by two separate clients to consider two specific bills in South Australia and Tasmania,’ Rochow said.
‘Having now considered both of those bills, and the extent of the legislative field of the federal Marriage Act and related Hansard, I am of the view that neither of them avoids the constitutional difficulties that section 109 of the Constitution presents. Both bills, if passed into law, would be invalid.’
Section 109 states that when a state law is inconsistent with a federal law, the state law becomes invalid.
Rochow said that he was ‘fortified’ in this view by the opinion of colleagues and experts he had consulted with on the issue.
However Australian constitutional law expert and author of three legal textbooks on constitutional law, Prof. George Williams, said that the issue of the law’s constitutionality was anything but settled.
‘This is an issue that only the High Court can ultimately settle,’ Williams told GSN, adding that that was not a reason for lawmakers to reject a law.
‘It is understandable that that will be used by both sides on the issue. But in the end, where social policy needs to be enacted into legislation, the common course is, if there is a good reason to do it, then the law is passed and you allow the High Court to resolve the matter.’
Williams disagreed that the Tasmanian law would be found inconsistent with federal law.
‘I think there are good reasons to believe that the Tasmanian same-sex marriage law could survive a high court challenge. One reason is that it deals with different subject matter than the [federal] Marriage Act,’ Williams said.
‘I think that it has been carefully drafted to ensure that no person can be subject to both state and federal laws at the same time in this area. I think they give rise to credible arguments [for the bill’s constitutionality] but beyond that we’re in the realm of speculation, because the High Court has never addressed this issue, and in fact a majority of new judges will be sitting on the court before it is looked at.’