Archive for February, 2019

Explainer: Can the Commonwealth override the ACT on marriage equality?

By Anne Twomey

The ACT’s Marriage Equality Bill, which is expected to pass parliament later this month, has revived the controversy about who can legislate for same-sex marriage, with the Commonwealth proposing to challenge the territory’s law.

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Despite some bravura statements on both sides, most recognise that the issues are not cut and dried. It all comes down to matters of interpretation, and the interpretation that counts is that of the High Court – not the politicians or lobbyists.

What does the Constitution say?

The Constitution lists specific powers which the Commonwealth Parliament may exercise. They include the power to make laws with respect to “marriage” and “divorce and matrimonial causes”.

But these are not exclusive powers. The states can legislate on these subjects too. Unlike the Commonwealth, the states have full power to legislate on any subject except for a few small areas.

However, if the state law is inconsistent with the Commonwealth law, then the Commonwealth law prevails and the state law becomes inoperative to the extent of the inconsistency.

At the time of federation, each of the colonies had a law governing marriage, and these laws continued in place as state laws until the Commonwealth Parliament enacted the Marriage Act 1961, which provided a single national law in relation to marriage. All the state marriage laws were overridden and eventually repealed.

So it is not accurate to claim that marriage is a Commonwealth matter and the states can’t legislate on the subject. The states have the power to legislate about marriage, but if that law is inconsistent with the Commonwealth law, then the state law will be inoperative.

The meaning of ‘marriage’

The Constitution permits the Commonwealth to legislate with respect to “marriage”, but what does “marriage” mean? Should a court apply its original 1901 meaning, most likely being “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”? Or should it apply a contemporary meaning – and if so, how is it to be determined?

Given the high level of controversy concerning same-sex marriage, it would be difficult to claim that the term “marriage” has a settled contemporary meaning. Should the High Court take into account opinion polls, contemporary literature, dictionary meanings or the view of the parliament?

Should it consider overseas practice, international treaties or the views of religious or ethnic groups? Or should it say that the Constitution means what it meant when it was came in to force in 1901 and that it is up to the Australian people to change its meaning through a referendum if they wish to do so?

 

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In practice, the High Court has taken different approaches to constitutional interpretation. Sometimes it has applied the original meaning of a term and other times it has applied a “dynamic” approach or recognised a contemporary meaning or changed factual circumstances. One cannot know how the High Court will deal with the meaning of marriage until it actually does so.

If the High Court applied the original meaning of marriage, then the Commonwealth would be unable to rely on the marriage power to legislate for same-sex marriage, leaving this field for the states.

This would put an end to notions of marriage equality, because same-sex relationships would necessarily have to be distinguished from “marriage” in its constitutional sense. It would also raise doubts about whether such relationships could be classified as “marriage” at all.

Inconsistency between laws

If, on the other hand, the High Court interpreted “marriage” in the Constitution as including same-sex relationships, then the question would be whether the Commonwealth’s Marriage Act, even though it defines marriage as a union between a man and a woman, was intended to cover the field of all types of marriage in Australia and to exclude the solemnisation of same-sex marriages under state laws.

There are some indicators in the Act that this is the intent. Section 48, for example, states that marriages solemnised in Australia otherwise than as prescribed by the Act are not valid. Section 88EA also says that a union solemnised in a foreign country between a man and another man or a woman and another woman must not be recognised as a marriage in Australia.

These provisions suggest that the Commonwealth Parliament, when it changed the definition of “marriage” to mean a union between a man and a woman, did not intend to leave it to the states to legislate for same-sex marriage.

Nonetheless, it is still possible that the High Court might regard same-sex marriage as a separate field in which the states can legislate without inconsistency with the Commonwealth’s law.

If so, the state would have to be very careful to stay within the boundaries of this field, establishing its own institution of same-sex marriage and not purporting to give such relationships the same status as marriage under the Commonwealth legislation.

Hence, the Tasmanian bill referred throughout to “same-sex marriage” rather than marriage and avoided reference to marriage equality.

The ACT bill, however, is much less careful, referring to marriage equality and applying the Act to marriages not within the meaning of the Marriage Act. It appears much more vulnerable to attack on inconsistency grounds.

Territories – an extra complication

Added to this mix of interpretative issues is the fact that the ACT is a territory, rather than a state. It derives all its legislative power from the Commonwealth, as well as limitations on its legislative power.

Interestingly, the Commonwealth has full power (similar to state legislative power) to make laws for its territories, so it may have a broader power to deal with same-sex marriage in the territories than it does under its “marriage power”.

The Commonwealth can therefore potentially delegate a broader power to the ACT to legislate on the subject, but it can also legislate to limit that power, as it has previously done in relation to euthanasia.

Alternatively, it can take its chances with a High Court challenge and argue that there is inconsistency.

The need for certainty

Given the uncertain interpretative issues and the importance of the subject, a High Court challenge is the best course. This way, hopefully, the constitutional and legal issues will be resolved, so that Australia’s parliaments can deal with the issue of same-sex relationships with greater certainty as to their powers and the likely effectiveness of their laws.

Anne Twomey receives funding from the Australian Research Council and occasionally does consultancy work for governments or inter-governmental bodies.

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Pilgrims flock to Fatima shrine

Nearly two hundred thousand Catholic pilgrims have gathered at Fatima, one of Christianity’s most visited shrines, the sanctuary in Portugal says.

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Pilgrims celebrated the 96th anniversary of the day in 1917 when three Portuguese shepherd children reported seeing the Virgin Mary.

The Vatican’s number two, cardinal Tarcisio Bertone, was present at the celebrations in what will be his last trip before he retires as secretary of state next week and is replaced by cardinal Pietro Parolin.

“Religious indifference is the major challenge for the church,” Bertone said in his homily to the mass of pilgrims.

For the first time during the international pilgrimage, the statue of Our Lady of Fatima was not on site but had been taken to the Vatican for a short display.

In a radio interview, the 78-year-old cardinal said he was confident but could not confirm Pope Francis would make the journey to Portugal for the 100th anniversary in 2017.

Around four million pilgrims flock to Fatima each year to pray at the site, many crawling on their hands and knees up the steps and across the esplanade that leads to the shrine.

Pope Benedict XVI made the trip to Fatima in 2010, Pope Paul VI went there in 1967 and Pope John Paul II in 1982, 1991 and 2000.

John Paul II said it was Our Lady of Fatima who helped him survive an assassination attempt on Saint-Peter’s square in May 1981.

Pope Francis held a mass there on Sunday, in front of Fatima’s statue, which arrived from Portugal on Saturday and whose crown contains one of the bullets that struck John Paul.

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Relative charged in NYC baby killing

New York City detectives have solved the decades-old mystery of Baby Hope, a little girl whose naked body was discovered in a picnic cooler beside a Manhattan highway in 1991 and remained unidentified.

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They have arrested a relative of the child after he admitted sexually assaulting and smothering her.

Conrado Juarez, 52, was arrested and arraigned on Saturday on a felony murder charge. He pleaded not guilty.

Manhattan Assistant District Attorney Melissa Mourges, chief of the cold case unit and the original prosecutor on the case in 1991, told a judge Juarez had made the admissions.

Mourges said he then enlisted the aid of his sister who helped him dispose of the body.

They were cousins of the girl’s father, Police Commissioner Raymond Kelly said.

The girl’s name, age and circumstances of her death were unknown for more than two decades.

But police last week announced a new tip and a DNA test had allowed them to finally identify the baby’s mother, a dramatic turnaround in one of the city’s more notorious cold cases.

On Saturday, they also revealed the girl’s name: Anjelica Castillo, age 4.

Her naked, malnourished corpse was discovered on July 23, 1991, beside the Henry Hudson Parkway by construction workers who smelled something rotten.

Detectives thought she might have been suffocated but had few other clues as to what happened.

The case became an obsession for some investigators who nicknamed the girl Baby Hope.

Hundreds of people attended a funeral for the unknown girl in 1993. Her body was exhumed for DNA testing in 2007, and then again in 2011.

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IMF chief warns against drastic US cuts

As debate rages over the US budget and borrowing limit, International Monetary Fund Director Christine Lagarde has warned US spending cuts must not be too drastic or they could threaten global economic recovery.

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In an interview on NBC Sunday talk show Meet the Press, Lagarde said the United States must address its spending on social programs like Medicare and Social Security.

But she said, “The point is not to contract the economy by slashing spending brutally now, as recovery is picking up.

“The pace of consolidation has to be sensible in order to protect that growth which is generating jobs, and which is helping in all sorts of ways,” Lagarde added.

The United States must deal with “entitlement (spending) that will come up and haunt you in a few years’ time,” she said, but the government needs “a balanced approach”.

The IMF director said the US economy is already showing “real improvement”, evident in indicators from the housing sector to the car industry to banking and household spending.

But she said it is crucial the government work out a deal to re-open the government and continue borrowing so it does not default on its debt – and not just for a few weeks.

She warned of serious consequences from “a combination of the government shutdown for a period of time and, more seriously, more damaging, if the debt ceiling was not lifted with a degree of certainty and enough time so that people could, you know, sort of have the assurance that the economy was in good standing.

“If there is that degree of disruption, that lack of certainty, that lack of trust in the US signature, it would mean massive disruption the world over. And we would be at risk of tipping, yet again, into recession,” Lagarde said.

The Senate is holding a rare Sunday session to grapple with the budget impasse, with just five days remaining before the United States is set to reach the limit of its borrowing authority, putting it at risk of defaulting on its debt for the first time.

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Brisbane Roar look ahead to Sydney FC

Captain Matt Smith says lessons from Brisbane’s 2-1 win over Wellington Phoenix will set the Roar up for next week’s round two clash against Sydney FC.

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Brisbane trailed the Phoenix 1-0 at halftime on Sunday after former Belgian international Stein Huysegems’ 22nd-minute strike gave the home team an early lead.

But Besart Berisha equalised less than a minute into the second half, and Ivan Franjic secured the winner as 90 minutes ticked over.

Smith, who missed the final three months of last year’s A-League due to hip surgery, was pleased with the resilience Brisbane showed in rebounding from the early setback.

“There were probably times last season when we would have gone a goal down and dropped our heads,” he said.

“This season, it’s great to see already that the boys will keep pushing and pushing. We’ve always had that never-say-die attitude – it wasn’t necessarily pretty, but we kept going and we got our three points in the end.”

Brisbane will host a bullish Sydney FC at Suncorp Stadium on Saturday after the notoriously slow starters accounted for Newcastle Jets 2-0 in their first opening round win in four years.

The Roar were unbeaten in an impressive pre-season, but their vaunted midfield looked sluggish and struggled for timing against the Phoenix early on, something Smith says they’ll need to rectify quickly.

“Credit goes to Wellington because they made it very, very difficult for us,” he said.

“Our ball speed at times was particularly slow – it gave Wellington opportunity to cut out an awful lot of passes. We can take a lot from today, despite it not being the best performance.

“We’re a club that never likes standing still, whether we’re in the first game of the season or the last game of the season.”

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