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I’ve been looking into the marriage power in the Constitution for an assignment, and its a surprisingly interesting question from a conceptual point of view.

Question: Can a stream rise above its source?

A constitutional lawyer would express horror at the mere thought; Parliament plainly cannot expand its own legislative powers by passing an Act which defines its powers. And yet, how are we to construe s 51, which grants Parliament “power to make laws… with respect to… marriage”?
If Parliament were to pass a law in 1910 that permitted gay marriage, contrary to all the mores of that time, would it be valid? If Parliament in 2011 were to pass a law that permitted polygamy or bestial marriage, would that be valid? Wouldn’t these laws be invalid, unless Parliament could enlarge the ambit of the marriage power by passing an Act defining marriage as including a union between a man and a man?

There is obiter suggesting they can:

“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”

– Higgins J, AG(NSW) v Brewery Employees Union (1908) 6 CLR 469 (Affirmed by Windeyer J, AG(Vic) v Cth (1962 ) 107 CLR 529; by the Full Family Court in Cth v Kevin & Jennifer [2003] FamCA 94)

This must be wrong, according to any constitutional analysis. s 51(xxi) must be characterised first, then we must ask if the Gay Marriage Act falls within that characterisation. Brennan, Mason, Deane JJ in Cormick and Cormick v Salmon (1984) 156 CLR 170 make this point.

The word ‘marriage’ would have a meaning separate to that in the Marriage Act. That word and that power evolves over time, just as the external affairs power and the aliens power have evolved in very distinctive ways. Those powers, however, may be controlled by reference to events external to Australia (such as making of the Balfour Declaration and the passage of the Statute of Westminster and the Australia Acts).

The marriage power must be referable to social indicia, like the community’s acceptance of gay marriage (or polygamy and beastiality). Those are murky waters for the High Court to plumb. It makes the Court political.

It also acknowledges the power of the common law to shape the Constitution itself, which is a thesis that Sir Owen Dixon has advocated for. As Brennan J said in Cormick, the meaning of marriage is “ascertained… by reference to the customs of our society, especially when they are reflected in the common law.

A contrary view might be that s 51(xxi) might be an exception to the ordinary rule that international law cannot be used to construe the Constitution. The High Court might very well have reference to treaties and international case law to ascertain how acceptable marriage is in the wider community.

Needless to say, I agree with the Dixonian view. The question is not what marriage means according to humanity or the international community. The Constitution asks what marriage means in Australia, so international law can only be evidence at best.


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