Honours Thesis - Elodie Cheesman.pdf

Secondly a state law would create a hybrid status

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Secondly, a State law would ‘create a hybrid status, being a kind of “marriage” with its own unique set of rules for limited purposes under [State law], and a de facto relationship in federal law and in the law of other states and territories. Under some circumstances it may be neither a marriage nor a de facto relationship in federal law’. 129 This would create confusion, as same-sex couples would be on a different relationship register from heterosexual couples, and 127 Koowarta v Bjelke Petersen (1992) 153 CLR 168; Commonwealth v Tasmania (1983) 158 CLR 1. 128 Indeed, George Williams expressed his opinion that the Same-Sex Marriage Bill 2012 (Tas) would survive any inconsistency challenge precisely because it used circumscribed terminology: Williams, ‘Can Tasmania Legislate for Same-Sex Marriage?’, above n 16, 128. 129 Parkinson, above n 33, 1.
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27 would go through a different divorce process. 130 Marriage celebrants would need to apply for special authorization to conduct a ‘same-sex marriage’. 131 The issue of subsequent marriage is also murky: the South Australian Bill, for example, seemed to allow a person to be married under both its own terms and the Marriage Act ; the Tasmanian Bill voided a same-sex marriage if a subsequent federally-recognised marriage was entered into (thus conferring an inferior status on same-sex marriage). 132 Finally, same-sex marriages entered into in one State would only be recognized and dissolvable in that State. 133 As put by Geoffrey Lindell: ‘ [T]he last thing we want to encourage is the notion of limping marriages which are recognised in some jurisdictions and not others. Parties to such relationships should be certain about their status wherever they reside in Australia or for that matter the rest of the world.’ 134 Under a non-originalist approach, these functional policy concerns tend to the conclusion that s 51(xxi) should include competence to legislate for same-sex marriage. Even on an originalist approach, the prospect of a disharmonious body of state legislation might reasonably be considered to defy the Framers’ intention to allow for the development of a uniform marriage and divorce system. 135 However, it is not definitive, as Australia’s federal system often produces legislation on a state-by-state basis until it prompts uniform national action; this is envisaged by the States’ referral power. 4.2 DANGERS OF NON-ORIGINALISM One must be mindful of the dangers in applying the non-originalist approach. Sir Daryl Dawson has said that ‘[t]he metaphor of a living tree does nothing to tell the judge where he should 130 Ibid, 11. 131 Ibid. 132 Ibid, 13. 133 Except for dissolution within the scope of the national cross-vesting legislation (ie. that it is ancillary to some other dispute for which the court has jurisdiction): Ibid, 12.
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