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The High Court and the Meaning of 'Marriage' in Section 51(xxi)
of the Constitution
Ian Ireland
Law and Bills Digest Group
12 February 2002
Introduction
Over the past 25 years in Australia many laws affecting marriage have
been instituted by the Commonwealth. However, there remains intact one
major limitation, namely, that prohibiting marriage between persons of
the same sex.
Same sex marriages are now recognised in the Netherlands and official
recognition of the union of same sex couples is available in a number
of other foreign jurisdictions and becoming more widespread.
Australia's failure to recognise the union of same sex couples is about
to be raised before the United Nations in regards to an alleged case of
discrimination against the partner of a deceased Second World War veteran.(1)
This Research Note details the High Court of Australia's interpretation
of the term 'marriage' in s. 51 (xxi) of the Australian Constitution.
What is meant by the term 'marriage' in section 51 (xxi)?
The Commonwealth's power with respect to marriage comes from s. 51(xxi)
of the Constitution. Section 51(xxi) states:
The Parliament shall ... have power to make laws for the peace, order,
and good government of the Commonwealth with respect to: - Marriage.
The effect of the Marriage Act 1961 (Cwlth) and section 109 of
the Constitution is that the Commonwealth has exclusive jurisdiction over
the formation of marriages in Australia (i.e. there is no room for States
to legislate).
The descriptions of the term 'marriage' used in the Family Law Act
1975 (Cwlth) (s. 43(a)) and the Marriage Act 1961 (ss. 46(1)
and 69(2)) are based on the definition in the 19th century
English case of Hyde v. Hyde and Woodmansee,(2) namely,
a formal, monogamous and heterosexual union for life.
While the High Court of Australia has interpreted the scope of the s.
51 (xxi) on numerous occasions, it has not given any detailed consideration
on the meaning of the term 'marriage'. Set out below is the available
High Court opinion on the term 'marriage' in s. 51 (xxi) of the Australian
Constitution.
1908
In Attorney-General for N.S.W. v. Brewery Employees' Union of N.S.W.,
Higgins J., was of the opinion that:
Under the power to make laws with respect to 'marriage' I should say
that the Parliament could prescribe what unions are to be regarded as
marriages.(3)
1962
In Attorney-General (Vic) v. Cth, McTiernan J. was of the opinion:
The term marriage bears its own limitations and Parliament cannot enlarge
its meaning. In the context-the Constitution-the term 'marriage' should
receive its full grammatical and ordinary sense: plainly in this contest
it means only monogamous marriage. In my view, the term in par. (xxi)
refers to marriage as a social transaction: but as the term marks the
outer limits of the power conferred by par. (xxi) its meaning is not
imprecise. In my view, the term cannot be extended further than to embrace
uniting in marriage and the status of marriage.(4)
Windeyer J., was of the opinion that:
It has been suggested that the Constitution speaks of marriage only
in the form recognised by English Law in 1900 ... and that therefore
the legislative power does not extend to marriages that differ essentially
from the monogamous marriage of Christianity. That seems to me an unwarranted
limitation. Marriage can have a wider meaning for law.(5)
Windeyer J. also cited with approval the opinion of Higgins J. in Attorney-General
for N.S.W. v Brewery Employees' Union of N.S.W.(6)
1984
In contrast, Brennan J., in Cormick and Cormick v. Salmon was
of the opinion that:
The scope of the marriage power conferred by sec. 51 (xxi) of the Constitution
is to be determined by reference to what falls within the conception
of marriage in the Constitution, not by reference to what the Parliament
deems to be, or to be within, that conception.(7)
1986
Mason and Deane JJ., in Re F.; Ex parte F. were of the opinion
that:
Obviously, the Parliament cannot extend the ambit of its own legislative
powers by purporting to give to 'marriage' an even wider meaning than
that which the word bears in its constitutional context.(8)
In Re F.; Ex parte F, Brennan J., was of the opinion that:
Marriage as a subject of legislative power embraces those relationships
which the law ... recognises as the relationships which subsist between
husband, wife and the children of the marriage. Statutes enacted in
purported exercise of the power cannot extend the scope of the power:
only those relationships which are already embraced within the subject
are amenable to regulation by a law enacted in exercise of the power.(9)
Brennan J., in Fisher v. Fisher was of the opinion:
Although the nature and incidents of a legal institution would ordinarily
be susceptible to change by legislation, constitutional interpretation
of the marriage power would be an exercise in hopeless circularity if
the Parliament could itself define the nature and incidents of marriage
by laws enacted in purported pursuance of the power.
The nature and incidents of the legal institution which the Constitution
recognises as 'marriage' ... are ascertained not by reference to laws
enacted in purported pursuance of the power but by reference to the
customs of our society, especially when they are reflected in the common
law, which show the content of the power as it was conferred.(10)
1991
Brennan J., in The Queen v. L was of the opinion:
In Hyde v. Hyde and Woodmansee, Lord Penzance defined marriage
as 'the voluntary union for life of one man and one woman, to the exclusion
of all others' and that definition has been followed in this country
and by this Court.(11)
1999
McHugh J., in Re Wakim; Ex parte McNally was of the opinion:
The level of abstraction for some terms of the Constitution is, however,
much harder to identify than that of those set out above. Thus, in 1901
'marriage' was seen as meaning a voluntary union of 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.(12)
Comment
It is unclear from the judicial consideration of the term 'marriage'
in section 51 (xxi) whether same sex marriage would now be given recognition
through the common law or through statutory interpretation of the Marriage
Act 1961.
Additionally, were the Commonwealth to legislate for the recognition
of same sex marriage a question arises regarding its constitutional underpinning.
As noted, the High Court's consideration of s. 51(xxi) leaves open whether
Parliament can determine the meaning of marriage or whether the term has
a fixed intrinsic meaning.
However, it may also be noted that some Commonwealth legislation has
been constitutionally supported by the use of s. 51 (xxix), the external
affairs power.
International treaties to which Australia is a party have become a means
of supporting the constitutional validity of federal legislation outside
more traditional Commonwealth fields.
It may be arguable that the Commonwealth in reliance on its international
treaty obligations, would have a constitutionally valid means of legislating
for same sex marriage.
Note: The 12 October decision of Re Kevin (validity of marriage
of transsexual) which found that a post-operative female to male transsexual
had validly married does not affect the current orthodoxy that a marriage
has to be between members of the opposite sex.(13)
- http://www.abc.net.au/rn/talks/8.30/lawrpt/stories/s270857.html
- (1866) LR 1 P. & D. 130 at p. 133.
- (1908) 6 CLR. 469 at p. 610.
- (1962) 107 CLR 529 at p. 549.
- (1962) 107 CLR 529 at pp. 576-577.
- (1908) 6 CLR 469 at p. 610.
- (1984) 156 CLR 170 at p. 182.
- (1986) 161 CLR 376 at p. 389.
- (1986) 161 CLR 376 at p. 399.
- (1986) 161 CLR 376 at pp. 455-456.
- (1991) 174 CLR 379 at p. 392.
- (1999) 198 CLR 511 at p. 553.
- [2001] FamCA 1074.
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