Page 1628 - Week 05 - Thursday, 11 May 2006
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6. Section 109 of the Australian Constitution provides: “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.
7. While s109 declares that the inconsistent State law is “invalid”, the High Court has held that in fact it is “inoperative” (Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 at 573).
8. While s100 refers specifically to an inconsistent State law, it also applies to Territories such as the ACT. Indeed, s109 is largely replicated in s28 of the Australian Capital Territory (Self-Government) Act.
9. There are no issues about the validity of the Marriage Act 1961 in terms of it being enacted by the Federal Parliament pursuant to a relevant constitutional power. Equally, there are no issues about the capacity of the ACT Government to validly enact the Bill under ACT law insofar as it is applicable to residents of the ACT.
10. The real issue is whether inconsistency arises as between ss 5 and 19 of the Bill on the one hand and ss5(1) and 88EA of the Marriage Act on the other hand.
11. The learned authors of Australian Constitutional Law and Theory (Blackshield T and Williams G, 3rd edition, Federation Press Sydney 2002 pp371-380) have described what they consider to be the High Court’s 3 broad approaches to inconsistency under s109 as follows:
a. If it is impossible to obey both laws, there is an inconsistency.
b. If one law purports to confer a legal point, privilege or entitlement that the other law purports to take away or diminish, there is an inconsistency.
c. If the Commonwealth Law ensures a legislative intention to “cover the field”, there may be an inconsistency if the State Law operates in the same field as the Commonwealth Law.
12. The first type of inconsistency arises in relation to s19(1) of the Bill in that it directly conflicts with s88EA of the Marriage Act. The latter says, in effect, that a same sex marriage solemnised in a foreign country must not be recognised as a marriage in Australia. The former states, in effect, that a same sex marriage solemnised in a foreign country is recognised as a marriage for the purpose of Territory law.
This might change that. The advice continues:
The proposed s19(1) is, therefore, inoperative.
13. It should be noted that s19(1) purports to treat the same-sex marriages of people living as far away as the Netherlands or Canada as civil unions in the ACT irrespective of whether the couple are living in the ACT or request the ACT to recognise their relationship. Such a broad provision far exceeds the ACT’s territorial legislative competence.
14. The second and/or third type of inconsistency arises in relation to s5(2) of the Bill that thus makes this provision inoperative in the face of the definition of marriage in s5(1) of the Marriage Act (Commonwealth). It is absolutely clear that
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