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

journal contribution
posted on 2011-01-01, 00:00 authored by Margaret Brock, Dan MeagherDan Meagher
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.

History

Journal

Public law review

Volume

22

Issue

4

Pagination

266 - 278

Publisher

Law Book Co.

Location

Rozelle, N. S. W.

ISSN

1034-3024

Language

eng

Publication classification

C1 Refereed article in a scholarly journal

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