On the Same-Sex Marriage Plebiscite by Ian Wilson LL.B.

One important thing seldom discussed in the issue of the same-sex marriage plebiscite is that it is not necessary at all to permit a change to the legal definition of marriage because our High Court has already decided that the term "marriage", "when used in section 51 (xxi),… is a term which includes a marriage of persons of the same sex". This conclusion was reached in the High Court's decision on the legality of the ACT's "Marriage Equality (Same Sex) Act 2013" on December 12, 2013: Commonwealth v  Australia Capital Territory (2013) HCA 55.

As is common in constitutional law today, there was no concern about the intent of the original framers of the Australian Constitution and a progressive interpretation was adopted without any concern at all for the connection of the law to the Christian and Western tradition. Seeing the Constitution as a "living force" allows the High Court to adopt "progressive" and leftist positions on social and policy issues.

This means that even if the plebiscite fails and same-sex marriage is rejected, unless a definition of marriage is placed in the Constitution of marriage being between a man and a woman, the existing or successive governments can simply legislate for it. We may need a definition of "man" and "woman" as well.

What is needed is an addition to the Constitution severely limiting the High Court's power of interpretation - explicitly rejecting progressive "living force" definitions and returning us to the original intentions of the constitutional framers.

As a people, the time is ripe for us to stop immediate constitutional and cultural changes and review all that has happened to restore right order.



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Saturday, 20 July 2024

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