How Queensland can abolish civil partnerships
I need to point out that I’m not talking about whether or not civil partnerships ought to be repealed. I, for one, am a strong proponent for civil partnerships. We all in society ought to be able to have equality. Our ability to form a relationship with our significant other ought to be able to be recognised in law. Ideally, this would be by marriage. The ability to say to your partner “I love you” witnessed by your friends and families, and be recognised by the State, and by God if you are religious, is a fundamental right in my view. However, the ability to form civil unions or partnerships may also be an option open, if provided by law. Some people, who have the choice, may choose to have their relationships recognised at law, but do not want to be married.
Civil unions or civil partnerships represent a half way measure: the relationship for the first time is recognised at law, but Parliament has not legislated to allow marriage. The ability to recognise a de facto partnership by those partners as a loving relationship is an option for heterosexual couples in several States now, where the experience such as in Victoria is that some heterosexual couples have taken advantage of civil unions legislation. Those couples have made the choice that they want their relationships recognised at law, but do not want to be married.
In some overseas jurisdictions, such as France, the legislation to allow civil unions has had a surprising turn of events. France legislated to allow civil unions primarily to allow same sex couples to be recognised, without allowing same sex marriage. However, the ability to have civil unions has been taken up with gusto- a vast majority of civil unions now in France are those of heterosexual couples. The growth of the popularity of civil unions in France has been such that the number of civil unions performed in the last couple of years has been just shy of the number of marriages, and shortly it is expected that new civil unions will be more popular than getting married!
Queensland constitutional law 101
Australia is a Federation. The Federal Constitution imposed on the existing legal entities, the six colonies, now the States, a new legal entity, the Commonwealth of Australia. The Commonwealth Parliament was given specific enumerated powers to legislate, such as for divorce and marriage. All other powers, not specified in the Commonwealth Constitution, remained with the States.
Since 1901 the centralising tendency of regulation and power has seen the legislative power of the Commonwealth Parliament grow and grow, at the expense of the States, but the legislative power of the States, including Queensland, remains enormous.
Queensland has its own constitution, which is in several pieces of legislation starting in 1867 and the most recent in 2001. This is what it says about the ability of the Queensland Parliament to legislate:
Within the said Colony of Queensland Her Majesty shall have power by and with the advice and consent of the said Assembly to make laws for the peace welfare and good government of the colony in all cases whatsoever.
In other words, subject to the limitations of the Commonwealth Constitution, the Queensland Parliament can pass laws about anything, at anytime, that can be looking to the future, or can be changing the law in the past (retrospective legislation).
In case there’s any confusion on this point, it also says this:
9 Powers, rights and immunities of Legislative Assembly
(1) The powers, rights and immunities of the Legislative Assembly and its members and committees are–
(a) the powers, rights and immunities defined under an Act; and
(b) until defined under an Act–the powers, rights and immunities, by custom, statute or otherwise, of the Commons House of Parliament of the United Kingdom and its members and committees at the establishment of the Commonwealth.
Date of establishment of the Commonwealth–1 January 1901.
(2) In this section–
rights includes privileges.
In other words, the power rights and immunities that the House of Commons at Westminster had on 1 January, 1901. Remember that this was when Britain ruled one quarter of the world, with legislation that mainly came out of the House of Commons. This means again, amongst other things, that subject to the Commonwealth Constitution, and any limitations in the Queensland Constitution, the Queensland Parliament has the power to pass laws about anything.
And just so we’re complete about who is the Queensland Parliament, the Parliament comprises two arms: the 89 members of the Legislative Assembly plus the Crown, which in Queensland’s case is the Governor (currently Penelope Wensley) acting upon the advice of the Executive, i.e. the Cabinet or the Government of the day.
The only two limitations of legislative power set out in the Queensland Constitution are that the Parliament can’t abolish the role of Governor nor reinstate the Upper House unless that legislation is also passed by a referendum, what constitutional lawyers call “double entrenching”.
There is no doubt that Queensland can pass laws with retrospective effect. Parliament is presumed by the courts to only pass laws affecting a change in the law from the time that the legislation is passed, but if properly drafted laws can have retrospective effect.
An example, although an extreme one, was of amendments to the Status of Children Act in 2008 that ensured that as a matter of law sperm donors were sperm donors not dads, that had retrospective effect back 20 years to when the Status of Children Act was enacted in 1978!
In other words…
There should be no impediment to the Queensland Parliament abolishing the Civil Partnerships Act 2011 back to the time of its enactment, and wiping the slate clean of those who have already undertaken a civil partnership.
But shouldn’t those who already have a civil partnership get to keep theirs?
This is more a political question than a legal one. There may be some argument that there is an implied right to marry under State and Commonwealth Constitutions. This is based on the views of the High Court under then Chief Justice Mason that there are certain implied rights in the Commonwealth Constitution, which included that there was an implied right to freedom of political discussion.
I suppose that there are two arguments here: civil partnerships are not marriages, and to assert successfully that there is an implied right of marriage under the relevant Constitutions will make constitutional history, with a huge risk of failure.
As Chief Justice Mason said, in finding that there was an implied right of freedom of expression for political purposes, back in 1992:
It may not be right to say that no implication will be made unless it is necessary. In cases where the implication is sought to be derived from the actual terms of the Constitution it may be sufficient that the relevant intention is manifested according to the accepted principles of interpretation. However, where the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure….
(I)t is difficult, if not impossible, to establish a foundation for the implication of general guarantees of fundamental rights and freedoms. To make such an implication would run counter to the prevailing sentiment of the framers that there was no need to incorporate a comprehensive Bill of Rights in order to protect the rights and freedoms of citizens. That sentiment was one of the unexpressed assumptions on which the Constitution was drafted.
However, the existence of that sentiment when the Constitution was adopted and the influence which it had on the shaping of the Constitution are no answer to the case which the plaintiffs now present. Their case is that a guarantee of freedom of expression in relation to public and political affairs must necessarily be implied from the provision which the Constitution makes for a system of representative government. The plaintiffs say that, because such a freedom is an essential concomitant of representative government, it is necessarily implied in the prescription of that system. (emphasis added)