With the recent referendum in Ireland to facilitate “gay marriage” or “same sex marriage”, calls have come for a prompt move by the Australian Parliament to legislate on the to facilitate same sex marriage.
That may not be as easy as many hope, notwithstanding my understanding that Australian society is relatively accepting of the concept.
“Marriage” in the Australian Constitution (an Act of 1900) has to be understood by reference to the words used in the Constitution. That may well be limited to ‘male/female marriage’, as understood in 1900, whether by interpretation or by a common law understanding of the word.
Decisions by the High Court of Australia on the breadth or narrowness of the meaning of “marriage” under the Australian Constitution really give no definitive clue as to whether the High Court will see it as open to the Commonwealth Parliament to legislate on the topic.
If the Commonwealth lacks the power, other options may have to be considered. They include it being done by State legislation or the States referring there powers to the Commonwealth for “standard” legislation across the Commonwealth. An interesting Research Note on the topic is available at of the Australian Parliamentary library webpage, http://www.aph.gov.au/binaries/library/pubs/rn/2001-02/02rn17.pdf