THE passage of the ACT Marriage Equality Same Sex invites some reflections on the law and politics of marriage and the Australian Constitution.

It took about 60 years for the Commonwealth to exercise the power given to it in 1901 Constitution to make laws “with respect to . . . marriage, divorce and in relation thereto the custody of children”.

It enacted the Matrimonial Causes Act in 1959 and then the Marriage Act in 1961. Before then marriage and divorce were regulated by state laws.

Those Commonwealth Acts, very sensibly, took over the mish-mash of state laws. The practical aim was clear – a unified system.

Those days, no-one imagined a marriage could be between people of the same sex.

Four or five decades on, however, momentum built in western democracies to allow same-sex marriages as part of a general move to improve human rights and human equality irrespective of gender, sexual orientation, ethnicity, colour, religion, political affiliation and so on.

In Australia, the Howard Government’s response was to make a political statement that marriage is to be between a man and woman by declaring it in law in a 2004 amendment to the Marriage Act. It added a definition: “‘marriage’ means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”

The aim of Howard and other social conservatives in his government was to end any chance of state and territories enabling same-sex marriage, they were utterly mistaken.

It was great political grand-standing, but very poor constitutional law.

The constitutional position in Australia is that the states can legislate for whatever they want until the Commonwealth passes a law within the heads of power allotted to it in the Constitution. If the Commonwealth legislates within those powers any inconsistent state (or territory) law is invalid.

So Howard went about it the wrong way. If he wanted to stymie state and territory attempts at same-sex marriage he should have amended the Marriage Act as follows:

1. “Marriage” in this Act means the same as the word “marriage” in the Constitution.

2. Marriages can be created only under this Act.

3. Marriages under this Act can only be between a man and a woman.

Then the Commonwealth would have covered the field, leaving no room for marriages under state law.

But,no. The Tories had to make statements of ideology rather than enactment with legal effect.

So the key questions for the High Court will be:

First, whether, on one hand, the Howard amendment is an invalid attempt to define the word “marriage” in the Constitution when the Constitution says it is for the High Court to determine the meaning of words in the Constitution.

Or whether, on the other hand, the Howard amendment is a legally effective statement that covers the field leaving no room for state or territory same-sex marriages.

And secondly, whether, on one hand, the word “marriage” in the Constitution means only a union of a man and a woman and that is the limit of Commonwealth jurisdiction, leaving it open to the states to legislate for same-sex unions or marriages.

Or whether, on the other hand, the word “marriage” in the Constitution now embraces the possibility of same-sex unions leaving it open to the Commonwealth in the future to legislate for those unions or to legislate to prohibit them, but in the absence of that legislation to allow state and territory legislation for same-sex marriages to go ahead.

Of those four propositions, only one aligns with the Abbott-Brandis view: that the definition in the Marriage Act covers the field leaving no room for the states. My guess is that the High Court is unlikely to go for it. It is a badly drafted, usurping of the role of the High Court to define the meaning of words in the Constitution.

If that guess is right, it will force the issue in the Commonwealth Parliament.

For the Commonwealth to stop state and territory same-sex marriages it will have to legislate to specifically prohibit them. It certainly has the power to do so.

A power granted in the Constitution “with respect to” something includes the power to prohibit all or part of that something.

But it will have to do so by coming out. It will have to, by implication, admit that a same-sex marriage is within the realm of legal possibility and then specifically prohibit it.

The Commonwealth Parliament will not be able to get away with a mere grand-standing definition that marriage does not include same-sex marriages to do the legal job. The court will simply say: “We decide the meaning of the words of the Constitution even if the Parliament determines the circumstances in which they apply.”

This will then change the dynamic of any vote in the Commonwealth Parliament. It will not be a question of whether MPs in conscience want to ALLOW same-sex marriages, but whether they want to vote to prohibit them to ensure the states and territories cannot create them.

Once the states and territories validly legislate for same-sex marriages, the game will be up for the Commonwealth. The pressure will be on to unify the law as it was in the late 1950s and early 1960s.

Attorney-General George Brandis’s statement about the ACT law showed his crocodile tears.

"It would be very distressing to individuals who may enter into a ceremony of marriage under the new ACT law, and to their families, to find that their marriages were invalid," he said. Well, if he is worried about that distress, why not move to a Commonwealth same-sex marriage law?

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Speaking of unifying legislation to fix up a mish-mash of state laws, the Government says it will abolish the Charities and Not-for-Profits Commission, created last year.

Charities overwhelmingly support the commission. They are sick of having to comply with eight different state and territory regimes as well as the ATO and ASIC requirements. There are an astonishing 660,000 charities and non-for-profit entities in Australia turning over about $43 billion a year.

I was on the board of Barnardos, the children’s charity for ten years, five as chair, and had to sign the myriad of compliance documents. The preparation of those documents took time and money away from the main aim – to help children.

If the Government is serious about cutting red tape it should keep the commission.

But, no, we have a conflict of ideologies here: cutting red tape on one hand and letting religious groups get away with as little scrutiny as possible, on the other.

The common law long upheld four great charitable purposes: the relief of poverty; the advancement of education; the advancement of religion; other purposes beneficial to the community as a whole.

Any one of the four would do.

More recently, there have been moves to insist on an underlining public-benefit requirement. If that happened, the work of religious bodies in alleviating the poor or educating children would be fine, but support for cloistered monks chanting to mystical men the in the sky clearly would not -- hence the animosity of the churches towards the commission.

The churches have already got at Labor to soften reporting requirements. It would be a shame if they bullied the Liberals into abolishing the commission.

Charities need more scrutiny and support, not less. They need less red tape not more. As World Vision’s Tim Costello says, the commission is giving the pubic more confidence that their money is being properly accounted for.

crispin.hull@rubyreef.com.au