Honours Thesis - Elodie Cheesman.pdf

And many lack more basic equality laws and australias

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(and many lack more basic equality laws), and Australia’s federal system and lack of Bill of Rights preclude any close analogies being drawn to those that have. 124 4.1.3 Domestic Law Finally, the Court could look to domestic values of equality as informing the scope of ‘contemporary values’. Notably, all Australian states and territories prohibit discrimination on the basis of sexual orientation. 125 Moreover, an aspect of liberal democracy and the rule of law is that all Australians should have equality before the law. 126 It might be argued that an interpretation of s 51(xxi) which precludes Federal Parliament from legislating for same-sex 122 Brock and Meagher, above n 14, 277. 123 Andrew Lynch, George Williams and Emily Burke, Submission to the Senate Legal and Constitutional Affairs Committee (Cth), Inquiry into the Marriage Equality Amendment Bill 2010 , 15 March 2012, 5. 124 Walker, ‘The Same-Sex Marriage Debate in Australia’, above n 119, 117. 125 Discrimination Act 1991 (ACT) s7(1)(b), Anti-Discrimination Act 1977 (NSW) s49ZG, Anti-Discrimination Act 1992 (NT) s19(c), Anti-Discrimination Act 1991 (Qld) s7(1), Equal Opportunity Act 1984 (SA) s29(3), Anti- Discrimination Act 1998 (Tas) ss16(c) and (d), Equal Opportunity Act 1995 (Vic) ss6(d) and (1), The Equal Opportunity Act 1984 (WA). 126 D Clarke, The Rule of law: Principles of Australian Public Law (LexisNexis Butterworths, 2003), 101.
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26 marriage defies Australia’s contemporary aversion to discrimination on the basis of sexual orientation. Overall, by determining ‘contemporary values’ by reference to principles of international, foreign and domestic law, a non-originalist perspective may well facilitate a reading of s 51(xxi) as encompassing same-sex marriage. 4.1.4 Policy Concerns From a functionalist perspective, non-originalist arguments have tended to surface when practical consequences are discussed, as in Koowarta and the Tasmanian Dam Case which addressed the modern realm of international relations. 127 The Marriage Power debate involves serious policy concerns, almost necessitating a non-originalist analysis. If the s 51(xxi) power is limited to heterosexual marriage, it places same-sex marriage in the States’ purview. Patrick Parkinson cogently reasons that State Bills purporting to allow same-sex couples to marry actually create a new status of ‘same sex marriage’. In order to avoid inconsistency with the Federal Marriage Act (see Section 2.1.2), State legislation would have to shy away from labelling unions between same-sex couples as ‘marriage’. That is, their validity would hinge on establishing a legal relationship that is sufficiently different from that recognized by the Marriage Act . 128 This creates two problems. Firstly, that of symbolism. State law cannot offer same-sex couples access to the cultural richness of federally-recognised ‘marriage’, merely a ‘skim milk’ version. In (necessarily) differentiating between heterosexual and homosexual couples, there is a danger of perpetuating discrimination and exclusion.
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