Honours Thesis - Elodie Cheesman.pdf

38 ibid 39 geoffrey lindell state legislative power

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38 Ibid. 39 Geoffrey Lindell, ‘State legislative power to enact same-sex marriage legislation, and the effect of the Marriage Act 1961 (Cth) as amended by the Marriage Amendment Act 2004 (Cth)’, above n 36, 31. 40 Explanatory Memorandum, Marriage Amendment Act 2004 (Cth), General Outline. 41 Attorney-General (Vic) v The Commonwealth (1962) (‘ Marriage Act Case ’) 107 CLR 529, 557–558. The incidental legislative power includes the express grant in s 51(xxxix) which enables Parliament to legislate with respect to ‘matters incidental to the execution of any power vested by this Constitution in the Parliament…’ or the implied power which attaches to each individual grant in s 51: Re Dingjan; ex parte Wagner (1995) 183 CLR 323, 352 (Toohey J).
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11 does not have the legislative scope, a uniform federal marriage scheme could nevertheless be developed by the States referring power under s 51(xxxvii). This, however, rests upon a willingness of the Federal government and all State governments to achieve this outcome. The final possibility is a referendum under the Constitution s128 to amend s 51(xxi) to allow Federal Parliament to legislate for same-sex marriage. Taking a step back, how the prospective inconsistency debate plays out is critical to the operativeness of any State legislation, but less important in the long-term. The goal of State legislation is largely political; it is intended to demonstrate the entrenchedness of the same-sex marriage cause, and put pressure on the Federal government to amend the Marriage Act . This section has demonstrated that regardless of how it comes about – by the Federal Government amending the definition of marriage in the Marriage Act to embrace same-sex relationships, or by State same-sex marriage legislation inciting a claim of inconsistency – the question of the scope of the Marriage Power will come before the High Court. As Federal and State governments face mounting domestic and international pressure to legalise same-sex marriage, adjudication looms ever closer. 3 ORIGINALISM Let us now turn to the first interpretive technique that the High Court might use to construe s 51(xxi). Under originalism, the orthodox approach to constitutional interpretation, the fundamental object is to ascertain the meaning of the term ‘marriage’ at the date of enactment, 1900. 42 The Court is not to ‘vary its construction from time to time to meet the supposed changing breezes of popular opinion.’ 43 Given the chronistic emphasis, it is difficult to see how an originalist reading supports the inclusion of same-sex marriage under the Marriage Power, or is even appropriate to interpreting it. This section discusses the strands of literalism, 42 Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’ (1997) 25 Federal Law Review 1, 8, 12; Leslie Zines, The High Court and the Constitution (The Federation Press, 5 th ed, 2008), 21.
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