The legal recognition of same-sex unions in Australia : a constitutional analysis

Brock, Margaret and Meagher, Dan 2011, The legal recognition of same-sex unions in Australia : a constitutional analysis, Public law review, vol. 22, no. 4, pp. 266-278.

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Title The legal recognition of same-sex unions in Australia : a constitutional analysis
Author(s) Brock, Margaret
Meagher, DanORCID iD for Meagher, Dan
Journal name Public law review
Volume number 22
Issue number 4
Start page 266
End page 278
Total pages 13
Publisher Law Book Co.
Place of publication Rozelle, N. S. W.
Publication date 2011
ISSN 1034-3024
Summary The Marriage Equality Amendment Bill 2010 (Cth) currently before federal Parliament amends the present legislative definition of marriage to include same-sex unions. This article provides a constitutional analysis of the scope of the marriage power, s 51(xxi) of the Australian Constitution , through examination of the Bill and other existing and proposed legislation. It argues that if the High Court considered "marriage" to be a constitutionalised legal term of art, it could accommodate post-federation development at common law and in statute to the institution of marriage. It also argues that the presumption in favour of constitutionality ought to be at its strongest with federal legislation determining complex and intractable moral issues. The article explores the constitutional vulnerability of current same-sex union legislation and possible future legislation providing for recognition of the functional equivalent of "marriage". In addition, the article considers the constitutional foundation of a national framework to provide official legal recognition of same-sex relationships.
Language eng
Field of Research 180108 Constitutional Law
Socio Economic Objective 940499 Justice and the Law not elsewhere classified
HERDC Research category C1 Refereed article in a scholarly journal
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Document type: Journal Article
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