Honours Thesis - Elodie Cheesman.pdf

12 speculating as to how the high court will decide

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12 Speculating as to how the High Court will decide is further complicated by recent appointments; Gaegeler J replaced Gummow J in October 2012, Keane J replaced Heydon J in March 2013. The current Bench has not made any constitutional rulings that may indicate the dominant approach to constitutional interpretation.
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5 federal legislation on the topic could stand. The States would have great difficulty in legislating for same-sex marriage, because of the risk of inconsistency (discussed below in Section 2.1.2). On the other hand, the Court’s rejection of Federal competence would more readily facilitate State same-sex marriage legislation, but would hamper the pursuit of uniform federal marriage regulation. The result is sure to hinge on the critical interplay of constitutional factors and political impetus at the federal and state levels. Academics have taken disparate tacks to interpreting s 51(xxi). In 2008 Geoffrey Lindell concluded that, though difficult and probably unlikely at the time, it would be ‘by no means impossible, given the inherent flexibility of the relevant principles of constitutional interpretation’ to hold that Federal Parliament does have the power to legislate for same-sex marriage. 13 Brock and Meagher submit that the High Court would find such legislation valid if they interpret ‘marriage’ as a constitutionalised ‘legal term of art’; 14 Meagher further asserts that such legislation would be invalid under the ‘connotation and denotation’, moderate originalist and non-originalist approaches. 15 George Williams, however, believes that the High Court, by taking an evolutionary approach, is more likely than not to hold that Federal Parliament does have power. 16 Jeffrey Goldsworthy asserts that it is possible to make a respectable argument consistent with originalism, through a ‘non-literal, purposive approach’, that the Marriage Power does support same-sex marriage legislation. 17 However, the dearth of High Court attention calls for a more comprehensive analysis of the spectrum of interpretive approaches that might be applied to s 51(xxi). It is not suggested that the High Court’s determination will turn on an explicit advance prescription of methodology. This has not been decisive in past constitutional jurisprudence; 18 indeed, Gleeson CJ and Gummow J have portended the dangers of doing so, highlighting the myth of the one 13 Geoffrey Lindell, ‘Constitutional Issues Regarding Same-Sex Marriage: A Comparative Survey – North America and Australasia’ (2008) 30 Sydney Law Review 27, 40. 14 Margaret Brock and Dan Meagher, ‘The legal recognition of same-sex unions in Australia: A constitutional analysis’ (2011) 22 Public Law Review 266, 276. 15 Dan Meagher, ‘The times are they a-changin’? – Can the Commonwealth parliament legislate for same sex marriages?’ (2003) 17 Australian Journal of Family Law 1.
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