Honours Thesis - Elodie Cheesman.pdf

176 this view was adopted by the majority in re

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176 This view was adopted by the majority in Re Patterson to overturn Nolan , such that it held that a British subject in essentially the same position as Nolan was not an alien and could not be deported. 177 Applying Gaudron’s approach to s 51(xxi), the High Court might use the Marriage Act as the ‘time to time’ descriptor which serves to identify those who are qualified to marry. Obviously then, the argument for including same-sex marriage in the Marriage Power hinges on Federal Parliament amending the Marriage Act . There are great difficulties in referring to Australian legislation to give meaning to constitutional concepts like ‘alien’ or ‘marriage’. Indeed, in Re Patterson , Kirby J pointed out 173 Official Record of the Debates of the Australasian Federation Conference (Second Session), Sydney, 22 September 1897, 1079. 174 Ibid. 175 (1988) 165 CLR 178, 189. 176 Ibid, 190-193. 177 Re Patterson; Ex parte Taylor (2001) 207 CLR 391.
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36 that to take into account amendments to the Citizenship Act ran contrary to Gibbs CJ’s reproach, with which many other judges have concurred, that Parliament cannot provide its own definition of ‘alien’ for the purposes of s 51(xix). 178 This follows the renowned assertion in Australian Communist Party v Commonwealth that Parliament cannot ‘recite itself into power’. 179 However, where the original meaning at 1900 is no longer appropriate, and some degree of judicial choice must factor, domestic legislation is, like international law and evidence of public opinion, indicative of contemporary conceptions. Indeed, Brock and Meagher assert that the ‘democratic credentials’ of potential Federal legislation allowing same-sex marriage are important, ‘especially…if such legislation were to be enacted pursuant to a conscience vote in Parliament’. 180 This is because it would reflect a national consensus as to ‘the morality and legitimacy of same-sex marriage…The presumption in favour of constitutionality ought to be at its strongest when federal legislation determines complex and intractable moral issues of this kind’. 181 However, it is important to note that Gaudron J’s focus on federal legislation is but one option under the ‘context-dependent criteria’ approach. The High Court might also or alternatively look to other factors (such as other domestic legislation, international law, foreign law and public opinion as discussed in Sections 3.4 and 4.1) as indicative of contemporary values. Normatively, duly considering and weighing each of these factors is the preferable course. 6 CONCLUSION As more and more States seek to push through same-sex marriage legislation, and pressure mounts on the Federal Government to amend the Marriage Act , it becomes ever more apparent that a High Court judgment on the scope of the Marriage Power is in the offing.
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