Constitutional Law (7226)
Take Home Exam
Date Due:
15 October 2013
Student:
Nima Dorji
Student ID:
3102533
PART A
SAME-SEX MARRIAGE
Introduction
The same-sex marriage has been continued source of debates and discussions. It seems that the Federal Government will be first institution to challenge the ACT’s same-sex law if passed. The key constitutional and legislative challenges in Federal, State and Territory level seems to be of authority or power to legislate on this subject matter (same-sex marriage), and that of consistency. Detailed discussions on these issues are presented as follows:
Inconsistency of Marriage Equality Act
Under s 122, the Federal Parliament is conferred power to make laws for Territory if it deems fit. Territory derives all its legislative power from this provision. The issue, therefore, becomes even complex when it concerns Territory. It seems that the Commonwealth can, legislate to limit the Territory’s power to legislate on same-sex, as it have resorted to this measure previously in relation to euthanasia. However, before Commonwealth resort to this remedy, it can still rely on inconsistency test.
Key issues can be explored and discussed by running through inconsistency tests. Section 109 provides supremacy to the Commonwealth law if law enacted by State is inconsistent. First requirement for applying this provision is that, there must be a valid law enacted by the federal Parliament and a valid law enacted by a State Parliament. In present scenario, the Same-sex law and the Commonwealth Marriage Act are valid by virtue of the power conferred by s 51(21).
The three test for inconsistency was adopted in Clyde Engineering Co Ltd v Cowburn
(1926) 37 CLR 466. First, when it is impossible to obey both laws. This inconsistency does not arise in this case because it is possible to obey both laws. Section 6(a) of
Marriage Equality Act provides that the Act will apply to matters not covered by the
marriage as union between man and woman. Same-sex marriage law regulates marriage between same-sex and Marriage Act marriage between opposite-sex. Therefore, it is not impossible to obey both laws.
Second inconsistency is when one law purports to confer a legal right, privilege or entitlement, which other purports to take away or diminish. That is, State law is invalid if it alters, impairs or detracts from the operation of a federal law. This inconsistency does not arise in the present case as well. It is very clear that same-sex marriage is not possible under Marriage Act. Both laws confer right to form marriage, but in each case to a different type of union without prohibiting the other.
Third inconsistency arises if the Commonwealth law shows a legislative intention to cover the field. This involves two questions. First, whether Commonwealth law intended to be exclusive within its field: (Viskauskas v Niland (1983) 153 CLR 280)? Was the
Marriage Act intended to be the only law on the topic of marriage? As there is no explicit mention on this issue, a court might decide either way. However, given the detailed and comprehensive regime in the federal Act, as well as problems of having two sets of law dealing with marriage, a court might imply its exclusiveness.
The second test requires, us to determine the field covered by Marriage Act and whether the State or Territory Marriage Equality Act operates in this same field. In my opinion,
Marriage Act covers the field of marriage generally (irrespective of the sex of partners). It covers field of same-sex marriage to the extent of prohibiting same-sex marriage. That is, Commonwealth law restricts same-sex marriage. This conclusion is drawn from s 88EA. It provides that same-sex unions solemnized in a foreign country cannot be recognized in Australia. Therefore, presumption can be made that the Commonwealth
Marriage Act recognizes union of man and woman only. Therefore, finding indirect inconsistency.
marriage as being opposite-sex marriage. As professor William argues that the analogy can be drawn with the approach taken by the High Court in Metal Trades Industry Association v Amalgamated Metal Workers’ and Shipwrights’s Union (1983) 152 CLR 632: when the federal award makes no provision on a particular matter, a State award may be able to operate on that matter without being overridden under s 109. Therefore,
Marriage Equality Act may be found valid, as it does not in general operate with the federal field of opposite-sex marriage.
Legal Challenge of Extending Definition of Marriage in Federal Laws
What would happen if s 5(1) of the Marriage Act is amended to define marriage as union between two persons? This question relates back to theories of constitutional interpretation. As per orthodox rules meaning to be given to a term is that which it had at the time of adopting Constitution: R v Barger (1908) 6 CLR 4. In Re Wakim; Ex parte McNally (1999) 198 CLR 511, McHugh J. stated that the starting point for a interpretation of the Constitution is the search for the intention of the makers. In light of traditional principles of constitutional interpretation, the word ‘marriage’ needs to have the same meaning as it had at the time the Constitution was enacted. It relates back to the definition provided in Hyde v Hyde LR1P&D130, as ‘the voluntary union for life between one man and one woman, to the exclusion of all others’. If the Court applies this traditional interpretation, then the federal Parliament will have no power to legislate for same-sex marriage.
may be interpreted on the basis of recognizing marriage as an evolving legal institution. Given the possibility of two interpretative techniques, orthodox versus evolutionary, it is not very certain if the Commonwealth law can withstand challenges any better than State and Territory legislations.
Conclusion
There can be no answer to these issues unless tested in the High Court. With regard to the issue of extending definition of marriage in federal law, it is very likely that majority would allow the federal Parliament to legislate on same-sex marriage. Similarly, for the reason above, the majority may also declare same-sex legislations inconsistent at this point of time, as marriage in Australia is intended to be between a man and a woman excluding all forms of other unions.
PART B
JUDICIAL POWER, DEFENCE POWER, AND RIGHTS
Introduction
Carson’s conviction and supervision order involves issue of judicial power, defence power and constitutional rights. To challenge his conviction and supervision, it would require us to test the validity of the Defence Force Discipline Act 1982 (Cth) (DFDA). It is very likely that Carson may succeed in this endeavor for following reasons:
Characterisation of the Defence Force Discipline Act: Head of Power
The validity of any law is tested by categorization. First step or test is to identify head of power of enacting legislation. In the present case head of power is defence power under s 51(vi), that is, power to make law concerning naval and military defence.
Subject Matter and Connection to Head of Power
Tracey; Ex parte Ryan (1989) 166 CLR 518, held that any offence committed by a service member may be treated as a service offence. Therefore, in the present case, the offence of indecency or assault is very much with the head of power. Third step is to examine whether, subject matter is connected to the head of power. In the present case, it is clear that subject matter is connected to the head of power.
Constitutional Limitation: Judicial Power
Fourth test is to identify if it is limited by the Constitution. The DFDA requires establishment of the Military Court of Australia, which has the power to hear and determine service offence. Therefore, in present case it is important to examine if DFDA provides for exercise of judicial power of the Commonwealth provided by Ch III of the Constitution. Courts-martial are accorded with exception from the principles of Chapter III of the Constitution. However, it is important to note that as decided in R v Cox; Ex Parte Smith, the exception is not real. Such courts in anyway cannot form part of the judicial system administering the law of the land. In other words, it cannot exercise judicial power of the Commonwealth. It can exercise judicial power outside judicial power of the Commonwealth. In the present case, Carson can argue against the validity of the DFDA on the ground that Military Court purports to exercise judicial power provided by Ch III.
In the present case, the Military Court sits outside the military chain of command. This purports to provide the Court with power to make decision, which is authoritative and binding. However, Court has taken different approach while defining the nature and scope court-martial. In White v Director of Military Prosecution (1996) 189 CLR 1, defence court system functions in contrast to the operation of the civilian justice system, that is, it functions in the chain of commands. The sentences of the courts-martial required confirmation by a superior office and that confirmation in turn might be quashed. The Court in Australia thus far, has continued to stick to this construction.
military officer was charged for same offence as in present case. Court while deciding the case, relied on R v Kirby; Ex parte Boilermakers' Society of Australia (the Boilermakers Case), and said that Ch III limits the creation of courts with jurisdiction appropriate to the subject matter of the power. In R v Bevan; Ex parte Elias and Gordon, it was observed that judicial power recognized by the Constitution could only be exercised by the branch of government identified in Ch III. Therefore, in Military Case, it was held that the creation of a legislative court which operates outside the previous system of military justice is beyond the power conferred by s 51(vi). Provisions of the DFDA was held to be invalid because it provides for the exercise of the judicial power of the Commonwealth by a body not created in accordance with Ch III of the Constitution. The independence status granted to Military Court from the chain of command, made the military court to exercise judicial power of the Commonwealth.
As Military Court is established to make binding and authoritative decisions of guilt or innocence independently from the chain of command, it is very likely that Court might find it as exercise of the judicial power of the Commonwealth. Therefore, relying on these grounds, Carson can challenge his conviction or supervision order and validity of the law itself.
Constitutional Limitation: Right to Jury Trial
As per s 80 of the Constitution, the trial on indictment of any offence against any law of the Commonwealth shall be by jury. This provision guarantees the right to trial by jury. In
R v Archdall and Roskruge (1928) 41 CLR 128, the High Court held that s 80 applies when the Commonwealth chooses to make offence triable by indictment. In the present case, as the service offences of which Carson was convicted are classified as indictable offences, the Commonwealth has chosen to make offence triable by jury. Therefore, s 80 will apply in the present case.
the Court observed that purpose of having twelve jurors is to ensure group size that promote discussion. Court observed that this objective could be met, if not less than ten jurors survive the trial. However, it was further observed that any number less than ten might be constitutionally suspect. As per Brownlee v R (2001) 207 CLR 278, jury must be of a sufficient number capable of performing the group deliberation inherent in jury trial. Therefore, as in the present case, jurors were less than ten; Carson may successfully challenge his conviction, for the violation of s 80. Thereby, his supervision order would not hold, if conviction is quashed.
Kirky J. in R v Ng (2003) 217 CLR 521 listed essential characteristics for jury trial: jury must be randomly and impartially selected. Prosecution or the state should not choose jurors. Another requirement is that, the jury must be comprised of lay decision-makers who are impartial as to the issues in contest. However, in the present case, it was just the opposite. Under DFDA, specialist juries were required to determine indictable service offences. Therefore, jurors were handpicked, and not randomly or impartially selected. The Military Court Registrar selected all the jurors from serving members of the Australian Defence Forces. This was against the observation made in Cheatle and
Brownlee, purpose of jury being to ensure a representative cross section of the people, who are impartial. In the present case as all the jurors were serving members of military, there is a higher chance of impartiality. Therefore, it is against the very objective of institution of jury trial, as they are not lay decision makers. Therefore, Carson may use this ground to challenge his conviction and supervision order.
Constitutional Limitation: Freedom of Political Communication
Freedom of political communication is implied constitutional freedom. Its implication is drawn from principles of responsive and representative democracy as observed in
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. It prohibits legislative or executive infringement of the freedom unless the restriction imposed is necessary to protect legitimate interests. In the present case, order passed under s 5(b) infringes Carson’s freedom of political communication, that is, his freedom of association and movement:
control, places burden on free communication, which is disproportionate to attainment of competing public interest: (Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106).
Section (13)(1) read with s 5(b) gives power to issue an order only if there is risk of re-offending. The reason given for issuing his supervision order doesn’t show that there is likelihood of committing the said offence again. Therefore, Carson may challenge his supervision on proportionality ground. However, the letters of law seems to be valid, it is only proportionality of order (as reason given is not determinative), subject to challenge. The validity of provisions of Div 3 in present case may not be challenged.
Conclusion
