Honours Thesis - Elodie Cheesman.pdf

28 williams windsor push could open can of worms

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28 Williams, ‘Windsor push could open can of worms’, above n 27. 29 The Same-Sex Marriage Bill 2012 (Tas) was voted down in the State’s upper house in September 2012. The Marriage Equality Bill 2012 (SA) will be considered by Parliament this year. 30 Williams, ‘Can Tasmania Legislate for Same-Sex Marriage?’, above n 16, 125.
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9 government. 31 As with a challenge to federal legislation, the Court would have to answer the question, ‘Does Federal Parliament have the power to legislate for same-sex marriage under the Marriage Power?’ If the Court considered that Federal Parliament did have power, the next issue would be whether (or to what extent) the State law is rendered inoperative by virtue of the Constitution s 109, which provides that a State law is invalid to the extent of its inconsistency with a Commonwealth law. It is unclear how this would play out. Direct inconsistency occurs when State laws ‘alter, impair or detract from the operation of a law of the Commonwealth’. 32 To avoid this, State same-sex marriage legislation could not provide for federal recognition of State marriages, or allow for same-sex marriage whilst a person is already married under the Marriage Act . Ultimately, the State legislation would need to be very circumscribed, so much so that it calls into question its very legal desirability. Patrick Parkinson has convincingly argued that State ‘same-sex marriage’ would effectively be a hybrid institution, legally distinct from ‘marriage’ and with dire consequences in the case of inter-state recognition and dissolution. 33 Even if the State laws were self-contained, an argument of inconsistency could be made that the existence of two kinds of marriage ( Marriage Act and State same-sex) would be ‘misleading or confusing’ or would diminish the symbolic importance of marriage in the federal sense. 34 Indirect inconsistency occurs when State laws intrude upon a ‘subject matter of a Federal enactment that…was intended as a complete statement of the law governing a particular matter or set of rights and duties’. 35 Some contend that the comprehensive nature of the Marriage Act provisions regulating validity and formation of marriage indicate an intention to 31 The individual might be a person who is a party to a same-sex marriage recognized under a State law, who challenges the validity of that marriage down the track: Williams, ‘Can Tasmania Legislate for Same-Sex Marriage?’, above n 16, 132. If an individual challenge is supported by an Attorney-General intervener, ‘the questions of standing (could) be put to one side’: see Williams v Commonwealth (2012) 288 ALR 410, 447 (Gummow and Bell JJ) and 414 (French CJ). Another possibility is that the High Court gives an advisory opinion: Geoffrey Lindell, Answers to Questions on Notice to Standing Committee on Social Issues (NSW), Inquiry into Same Sex Marriage Law in NSW , 19 March 2013, 5-6.
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