August 27th 2016

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COVER STORY Online census fiasco a cautionary tale

CANBERRA OBSERVED Tony Abbott: regrets, he's had a few, and those few he mentions

VICTORIA Volunteers put head on CFA, Cash pursues federal remedy

RURAL AFFAIRS Crisis in dairy industry escalates to new level

SOCIETY AND POLITICS Gays and lesbians can have happy marriages

SOCIETY AND RELIGION The science is in: God is good (for our children)

LAW AND SOCIETY Messing with marriage will hit constitutional bump

GENDER POLITICS Croome's blackmail gamble

TAIWANESE POLITICS Tsai remains in control after her first 100 days

MUSIC An industry that serves everyone bar the maker

CINEMA Villains under coercion: Suicide Squad

BOOK REVIEW A lose-lose country

BOOK REVIEW Grown in the 'burbs: a self-sufficiency plot

U.S. POLITICS The Good Ship Lollypop must be on the slipway

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Messing with marriage will hit constitutional bump

by Augusto Zimmermann

News Weekly, August 27, 2016

Australia has an express provision in its constitution granting Federal Parliament power to introduce legislation on the topic of marriage and correlating issues. In light of such provision, an amendment to the federal Marriage Act (the Defence of Marriage Act) was enacted in 2004, which defines marriage as the union between one man and one woman to the exclusion of all others.

Australia’s express constitutional provisions indicate that the Marriage Amendment Act is legally valid, thus precluding any state or territory from introducing any acts to legalise same-sex marriage. Hence the advocates of same-sex marriage did not challenge the amendment to the Marriage Act in court. Rather they pushed for same-sex marriage at the state and Commonwealth levels.

For instance, when the government of the Australian Capital Territory attempted to legalise same-sex marriage in that particular jurisdiction, the High Court struck down the law as being constitutionally invalid. That decision was made in 2013.

No power

But here is the conundrum. The Commonwealth Parliament may not have the power to redefine the meaning of marriage. In the ACT case, of course, the full High Court argued that marriage is: “[A] consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.”

Such a definition was not required to deal with that particular issue in this case. In reaching such a view the High Court went beyond the accepted principles of constitutional interpretation since the court could have reached precisely the same result by simply stating that the ACT act conflicted with the federal Marriage Act.

To the extent that the decision sought to lay down the parameters of the marriage power in the constitution and to include same-sex marriage within those parameters, it is of dubious precedential value. After all, there was no need for the court to consider the scope of the meaning of marriage in the constitution to answer that question. There is therefore an argument that the court’s decision on the topic is obiter.

That being so, the definition given by the court does not form part of the ratio decidendi (“the reason for the decision”). The opinion generates only obiter dictum (“remark in passing”), which is not binding although it can be persuasive. Indeed, it seems that such an opinion operated as a kind of Trojan horse that opened the way for the federal government to believe that it can widen its own powers under section 51(xxi) of the Australian constitution.

It is undeniably within the limits of the Commonwealth Parliament to introduce legislation that reinforces the traditional meaning of marriage. Such a definition is given by Lord Penzance in Hyde v Hyde (1866), which defines marriage as “the voluntary union for life between one man and one women, to the exclusion of all others”. What is not clear, however, is whether the Federal Parliament could actually do otherwise – namely, to change the meaning of “marriage”.

The High Court has repeatedly affirmed that the connotation or meaning of a given word must remain fixed as it was established at the time the law was originally enacted. Under orthodox rules of Australian legal interpretation, “the meaning to be given to a term is that which it had at the date of the constitution, 1900”.

As law professor Jeremy Kirky points out: “Australian literalist orthodoxy falls within the realm of originalism … [which] indicates that constitutional words are to be given their full, natural or literal meaning as understood in their textual and historical context … Provisions are to be understood according to their essential meaning at the time they were enacted in 1900.”[1]

Traditionally speaking, the courts have adopted a method that concentrates primarily on the essential meaning that the word had at the date when the law was enacted. This goes precisely in line with what John Quick (one of the drafters of the constitution) and Robert Garran (who played a significant role in the Australian federation movement) explained in their standard commentary on the Australian constitution. Quick and Garran commented that the intention of the Australian framers was to prevent the Federal Parliament from expanding its limited and specified powers by simply changing the meaning of any word in the constitution.

As stated by Quick and Garran in their seminal contribution: “Every power alleged to be vested in the national government, or any organ thereof, must be affirmatively shown to have been granted. There is no presumption in favour of the existence of a power; on the contrary; the burden of proof lies on those who assert its existence, to point out something in the constitution which, either expressly or by necessary implication, confers it. Just as an agent, claiming to act on behalf of his principal, must make out by positive evidence that his principal gave him the authority he relies on; so congress, or those who rely on one of its statutes, are bound to show that the people have authorised the legislature to pass the statute. The search for the power will be conducted in a spirit of strict exactitude, and if there be found in the constitution nothing which directly or impliedly conveys it, then whatever the executive or legislature of the national government, or both of them together, may have done in persuasion of its existence, must be deemed null and void, like the act of any other unauthorised agent.”[2]

At the time of constitutional enactment, the word “marriage” meant a union of a man and a woman – “and this would almost certainly have been regarded as an essential part of the connotation, and not merely the denotation, of the word”.

Indeed, Quick and Garran provide the following meaning to the institution: “Marriage is a relationship originating in contract, but is something more than a contract. It is what is technically called a status, involving a complex bundle of rights, privileges, obligations, and responsibilities which are determined and annexed to it by law independent of contract. According to the law of England, a marriage is a union between a man and a woman on the same basis as that on which the institution is recognised throughout Christendom, and its essence is that it is: (1) a voluntary union; (2) for life; (3) of one man and one woman; (4) to the exclusion of all others.”

What the words meant

According to the court’s most traditional method of interpretation, the meaning of a word must be limited to what such word actually meant at the time the law was enacted. If this were applied to the institution of marriage, then not even the Federal Parliament has the constitutional authority to redefine marriage, but only a limited power to regulate on the institution, which does not encompass expanding its meaning to same-sex relations. Such interpretation effectively denies the Federal Parliament any power to redefine the meaning of marriage, since this would go outside the scope of the term’s original meaning.

According to law professor Geoffrey Lindell: “At the time of federation the meaning of the term ‘marriage’ most commonly acknowledged was that contained in the cases which refused to recognise foreign polygamous marriage because such unions did not satisfy the traditional meaning of marriage now explicitly embodied in the Marriage Act 1961 (Commonwealth). Not surprisingly this will make it difficult for the court to accept that same-sex marriages now come within the meaning of the term ‘marriage’ in section 51(xxi) of the Commonwealth constitution – a view that has already attracted some judicial support.”[3]

High Court judges, both past and present, have in obiter dicta expressed their personal opinions on the matter. Justice Gerard Brennan, for example, relied on the history of the court to communicate that it is “beyond the powers of the Commonwealth Parliament to legislate for any other form of marriage besides that encompassed by its traditional definition”.

By contrast, activist judges such as Michael McHugh adopted a more “progressive” approach, stating: “In 1901, ‘marriage’ was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same-sex marriages, although arguably marriage now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.”[4]

The will of the people

When considering the constitutionality of same-sex marriage it is important to take into account that the constitutional framers recognised that the specified powers set out in the constitution should not be immutable forever. For this reason they provided a proper mechanism in section 128, which ensures that any change to the powers set out in the Commonwealth constitution must be subject to the will of the people, and not the convenience of government from time to time.

In this sense, it is perfectly reasonable to state that same-sex marriage should only be legalised via constitutional amendment – not via federal plebiscite or federal legislation– pursuant to section 128. Barry Maley, a senior fellow at the Centre for Independent Studies, therefore seems quite correct to comment that, when it comes to whether the marriage of same-sex couples can be legalised via parliamentary vote or national plebiscite, Australians are being short-changed and rushed to judgement because their constitution apparently has actually been misinterpreted.

Dr Augusto Zimmermann (LLB, LLM cum laude, PhD (Mon.)) is former Associate Dean for Research and Director of Post-Graduate Research at Murdoch Law School, where he currently teaches and coordinates the units Constitutional Law and Legal Theory. He is also a Commissioner with the Law Reform Commission of Western Australia; Professor of Law (adjunct) at the University of Notre Dame Australia (Sydney campus); and President of the Western Australian Legal Theory Association (WALTA).



[1] Jeremy Kirky, ‘Constitutional interpretation and a theory of evolutionary originalism’, 1999, Federal Law Review 27.

[2] John Quick and Robert R. Garran, The Annotated Constitution of the Australian Commonwealth, Sydney, Angus & Robertson, 1901.

[3] Geoffrey Lindell, ‘Constitutional issues regarding same-sex marriage: A comparative survey – North America and Australasia’, 2008, Sydney Law Review 30.

[4] Michael McHugh, Re Wakim; Ex parte McNally, 1999, 198 CLR 511.

[5] Barry Maley, The High Court, Democracy and Same-Sex Marriage, Centre for Independent Studies Occasional Paper 147, July 2016.

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