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Married women looking sex Australian Capital Territory Australian Capital Territory[a]

The judgment, is not a statement on the morality of same sex marriage. Nor does it presuppose or sustain a traditional definition of marriage as confined to relationships between man and woman. Rather, the Court applied established principles about inconsistency between Federal and State or Territory statutes to determine that it is not the place of State or Territory governments to legislate on this issue. The Court did no more or less, in this judgement, than reiterate that marriage is legally the domain of the Commonwealth.

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Rather, the Court would decide the case by applying established legal principles about inconsistency between Federal legislation and State and Territory legislation. Section 28 echoes 4 the principle in s of the Constitution. In essence, the High Court held that the inconsistency between the Act and the Marriage Act derived from the fact that both pieces of legislation covered the same topic; marriage as a legal relationship. The constitutional framework underpinning the Marriage Act is s 51 xxi of the Constitution which vests, in the Commonwealth, the power to make laws with respect to marriage.

This is supplemented by s 51 xxii which vests, in the Commonwealth, the power to legislate on other relevant issues such as divorce and matrimonial causes and other matters incidental to the marriage power. The question was relevant because, if the Federal legislature, in fact, had no power to legislate in this arena, the Act may well have been able to operate concurrently with it. The parties accepted that the Federal Government could choose to legislate for same sex marriage under s 51 xxi 9 and the Court agreed. Marriage was, rather, defined broadly in this case. Importantly, many aspects of the broad definition were couched in conditional terms; subject to re-definition by the Federal Parliament.

By conceptualising marriage in this way, the High Court acknowledged that there is wide scope for the Commonwealth to affect the legal understanding of marriage at any given time. The Court held that:. In this way, the marriage power, were the law duly altered by the Commonwealth, was held to embrace the power to legislate with respect to same sex marriage. The ACT and Australian Marriage Equality Incorporated 17 accepted that the Federal Legislature was able to legalise same sex marriage, but they argued that, because the Marriage Act does not currently in fact, deal with that issue, scope existed for legislation like the Act to operate alongside the Federal provisions without conflict.

The Court rejected this argument. The Court held that the ACT could not, in this context, rely upon the fact that the Commonwealth had simply not passed a law permitting samesex marriage. This did not detract from its power to do so.

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It did not enable the ACT to make a law addressing the supposed gap and it did not mean that the ACT statute could operate concurrently with the Commonwealth statute. The provision was not intended to limit Federal power. In fact, it has the inverse effect; properly operating as a constraint on the Territory. The High Court, in this case, provided a strong, contemporary reiteration of settled principles of statutory interpretation and legislative inconsistency. In so doing, it emphasised, in unequivocal terms, that marriage is the legislative domain of the Commonwealth.

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Whilst the Act was found to be invalid the decision is not a victory for a traditional definition of marriage. This means that the Federal Parliament, if it wishes, has clear Constitutional power to re-define marriage so as to encompass unions between same sex couples. This does not mean that the Commonwealth might need chose to directly ask the Australian people for their views on the issue by way of referendum or plebiscite but it does mean that there would be no Constitutional imperative to do so.

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The wording used by the Court, here, echoes the sentiments of Dixon J in some of the watershed cases on legislative inconsistency under s of the Constitutionincluding Ex Parte McLean 43 CLR at where Dixon J expressed the proposition as follows: "It depends upon the intention of the parmount Legislature to express by its enactment, completely, exhaustively, or exclusivley, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter.

We will need to wait and see if the Commonwealth does chose to legislate in this area. See also [56].

Married women looking sex Australian Capital Territory Australian Capital Territory[a]

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Same-sex marriage: issues for the 44th Parliament