Was Australia's Undefinition of Marriage Unconstitutional, and Could the High Court Overturn It
Channel: Dave Pellowe
Date: 06/03/2018

Australia's "Marriage Amendment (Definition and Religious Freedoms) Bill 2017" could be ruled unconstitutional.

It's whole purpose is to override the commonly understood, dictionary definition of the word as it existed when the constitution was written in 1901. If the court considering the case took either a literalist or an originalist approach to interpreting the constitution, they would have to overturn the legislation and force the government to do what they should have done all along, and send the nation to a referendum to change the constitution.

Only a non-originalist, revisionist approach to interpreting the constitution could reject what the framers intended or what everybody knew it meant when it was written. More about just how bad that approach is, here on my website:
http://davepellowe.com/australias-undefinition-marriage-unconstitutional-high-court-overturn/

"One of the principles of hermeneutics is to respect the spirit of the law and the document by taking into account what is the intention of the drafter. I think when precedent, for instance, departs from original meaning, it should be overturned. The judge should have the boldness and the courage to say that they made a bad decision and correct the problem as a matter of urgency."
 - August Zimmerman

Augusto Zimmermann LLB LLM PhD (Monash University) is the former Law Reform Commissioner, Law Reform Commission of WA (2012-2017), a Fellow at the International Academy for the Study of the Jurisprudence of the Family (IASJF), recipient of the Vice-Chancellor's Award for Excellence in Research, Murdoch University (2012), and Editor-in-Chief, The Western Australian Jurist - the yearly academic publication of the Western Australian Legal Theory Association (WALTA).

Sheridan College: http://sheridan.edu.au/

The Legislation: https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1099

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