Honours Thesis - Elodie Cheesman.pdf

118 though not binding the committees views are

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118 Though not binding, the Committee’s views are persuasive. 119 However, one can question whether the case would be decided the same way today, more than a decade later. At the time of the Joslin decision, only the Netherlands had legalised same-sex marriage. Since then, 13 countries have done so, and more seem set to follow. It is also interesting to note that when Australia’s human rights record was scrutinized as part of the UN Human Rights Council’s Universal Periodic Review in 2011, Australia’s failure to enact same-sex marriage legislation was honed in on as an area of concern. 120 Today, the ICCPR and UDHR provisions may be seen as extending the right to marry to all persons, regardless of gender or sexual orientation. 121 115 Toonen v Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (4 April 1994). 116 Ibid, 8.7. 117 Joslin v New Zealand , Communication No 902/1999, U.N. Doc CCPR/C/75/ D/902/1999 (17 July 2002). 118 Ibid, 8.2. 119 Kristen Walker, ‘The Same-Sex Marriage Debate in Australia’ (2007) 11(1-2) The International Journal of Human Rights 109, 117. Note that two recent decisions of the European Court of Human Rights held that same-sex marriage is not a human right under the European Charter of Human Rights (ECHR) : Schalk and Kopf v. Austria , Application no. 30141/04, European Court of Human Rights (24 June 2010); Affaire Gas et Dubois v. France , Application no. 25951/07, European Court of Human Rights (14 March 2012). This is significant as the ECHR follows the ICCPR and UDHR . 120 UN Human Rights Council, Report of the Working Group on the Universal Periodic Review: Australia , A/HRC/17/10 (24 March 2011), 86.68-86.70. 121 Walker, ‘The Same-Sex Marriage Debate in Australia’ above n 119, 116; Castan Centre for Human Rights Law, Submission No 1253 to Standing Committee on Social Issues (NSW), Inquiry into Same Sex Marriage Law in NSW , 5 March 2013, 10-12.
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25 At this point it is worth noting a separate head of power which the High Court is likely to consider in its adjudication of Federal competency to legislate for same-sex marriage. An argument might be raised that Federal Parliament has the requisite power under the treaty component of the External Affairs Power s 51(xxix); that is, same-sex marriage legislation would be a proportionate discharge of Australia’s equality and non-discrimination obligations under the ICCPR . 122 However, this is a less than secure foothold as the ICCPR offers no explicit protection from discrimination on the basis of sexual orientation. Moreover, to be valid under s 51(xxix), the domestic law must have a clear and proportionate relationship to the international obligation. George Williams and Andrew Lynch suggest that Federal Parliament may be able to outlaw discrimination on the basis of sexuality, but it is probably going too far to positively legislate for same-sex marriage under this head of power. 123 4.1.2 Foreign Law Returning to the non-originalist interpretation of s 51(xxi), the Court may be able to look to foreign law, as more and more countries enact same-sex marriage legislation. However, this is problematic in that some 180 nations still have not enacted same-sex marriage legislation
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