poloktim said:
I'm curious. The creation of a civil union law in NSW mimicking that of the ACT's law would only really be recognised in NSW, wouldn't it? The federal government has explicitally stated its views on same-sex marriage, and included in law that marriages performed overseas will not be recognised. I don't do law, and I don't understand much about it, but couldn't the NSW government still create such a law constitutionally? The only drawback would be that it is recognised only in NSW, wouldn't it?
- this sounds like one of our APL questions -
oh the ability for the law to apply outside NSW
that would depend on whether they intended it to apply outside NSW - generally the laws do not have extraterriotrial effect (thus they only apply in the state that made them) it would depend how (assumily it would be the High Court that would have to determine it) whether they considered the NSW legislation to have effect outside of NSW
I dont believe the fact that the Cth has stated certain veiws on same-sex marriages would effect the NSW legislation applying outside the state unless they had created some form of legislation against it - which then would override the NSW law anyway and make it invalid...
um on the validity of such a law being passed in NSW
it would depend on how the government/ courts read s51 of the Consitution -
They could argue that the hypothetical NSW law would be invalid for consituional reasons under s51 which gives to Commonwealth legislative powers of marriage [s51(xxi)
Commonwealth Consitution]
but then again it would depend on the terminiology used in such legislation - if they were doing what the ACT was doing and calling it a 'civil union' instead it would depend on how the courts interpreted the word marriage
Just as a side note to that -
unless i've completly got that whole thing above wrong - if you were advising the Cth Government wouldn't you advise them to mount a claim that the law was invalid under s51 of the Consitution then - considering that terriorty law has to also be consistant with the Consitution