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NSW apparently planning to introduce same-sex marriage laws as well, and by the sounds of things they should stand up in court as being constitutional.
say they won't over-rule state or territory legislation. They could change that law of course but the irony in them having to essentially redefine marriage in order to prevent same sex marriage would be far too delicious.
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Related to an earlier discussion:
High Court paves the way for same-sex marriage
The High Court has cleared the way for a federal law on same-sex marriage, even though it struck down the ACT law providing for them.
The critical point was that the court held that the word “marriage” in the Constitution means the union of any two natural people. It was not restricted to unions between a man and a woman.
As it happens, the 1961 Federal Marriage Act restricts marriage to unions between a man and a woman, but the court held that it would be open to the Federal Parliament to change that and legislate for same-sex marriages under the marriage power in the Constitution.
Hitherto the point was unresolved. It was thought that if ever the Federal Parliament did legislate for same-sex marriage it would invite a constitutional challenge on the basis that the word “marriage” in the Constitution meant only unions between a man and a woman.
That argument will now no longer run and any future Federal law providing for same-sex marriages would be within the Commonwealth Parliament’s power and a challenge would be futile.
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It's very interesting that the High Court has taken that view, and as I've been saying this is the central issue in which the whole gay marriage debate (should) revolves around.
I don't think it's as cut and dry as that passage paints but it would be an interesting test.
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And I think furthermore, any change to the law should be done via means of referendum to avoid any future legal debate surrounding it. I think using legislative instruments to change the law would be too grey in the long run and would likely end in a game of legal ping long over time.
Thinking about it, I'd guess the rationale would be that while the Commonwealth won't over-rule the legislation of states of territories on marriage as per the Marriage Act, the ACT law isn't actually on marriage as such as it doesn't fit the definition of marriage supplied. Which is a bit "infinite loop" for mine, but I get it.
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