Legislating for two jokers and a cocker spaniel

Tonight’s 7:30 Report featured a story on gay marriage (yes, I know the “report” bit has been deleted, presumably to signal the new post-Red Kezza regime).

Strangely though, it didn’t even mention in passing the fact that there is significant doubt as to whether the Commonwealth Parliament even has constitutional power to legislate for gay marriages.

The Commonwealth only has power to enact laws on areas of activity listed in the Constitution itself.  One of those is “marriage” (Constitution s 51(xxi)).  But what does “marriage” actually mean?  There’s no doubt what the vast majority of the “Founders” understood when they used the expression way back before 1901.  They meant a union for life between a man and a woman.  They didn’t mean a union between two blokes or two women.  They would have agreed emphatically with Paul Keating’s trenchant observation that “two jokers and a cocker spaniel don’t make a family”.

But does that mean the Commonwealth doesn’t have power to legislate for gay marriage?  It depends how the High Court majority end up viewing their task of constitutional interpretation.  Is it simply to decide what the drafters intended (which would clearly preclude gay marriage)?  Or is the task more complex than that?  The predominant High Court view is that it is strictly bound by the central or core meaning of constitutional expressions, often referred to as the “connotation” or “concept”, but has some flexibility in relation to the peripheral or expanded meanings, sometimes referred to as the “denotation” or “conception”.  But what the hell does than mean?  Certainly the dominant High Court approach seeks to avoid Justice Michael Kirby’s Humpty Dumpty or “living tree” approach to constitutional meaning:

‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’

 

Justice Michael McHugh mused about the scope of the Commonwealth’s marriage power at some length in Re Wakim in 1999, and precisely in the context of gay marriage:

Where the interpretation of individual words or phrases of the Constitution is in issue, the current doctrine of the Court draws a distinction between connotation and denotation or, in other words, between meaning and application. Thus, in Ex parte Professional Engineers’ Association Windeyer J said:

“We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known. But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes.”

Philosophers are now said to regard the distinction between connotation and denotation as outdated. And in R v Federal Court of Australia; Ex parte WA National Football League, Mason J said that “[t]he distinction between meaning and denotation is not without its difficulties.” But whether criticism of the distinction is or is not valid should not be seen as decisive. What is decisive is that, with perhaps only two exceptions, the Court has never hesitated to apply particular words and phrases to facts and circumstances that were or may have been outside the contemplation of the makers of the Constitution. That is because, with the striking exception of s 92 – which has an historical meaning – the words of the Constitution, for the most part, describe concepts and purposes that are stated at a sufficiently high level of abstraction to enable events and matters falling within the current understanding of those concepts and purposes to be taken into account. In the words of an earlier work of Professor Dworkin, the Constitution draws a distinction between concepts and conceptions. That being so, once we have identified the concepts, express and implied, that the makers of our Constitution intended to apply, we can give effect to the present day conceptions of those concepts.

Indeed, many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered. Examples can be found in the powers conferred on the Parliament of the Commonwealth to make laws with respect to “trade and commerce with other countries, and among the States”, “trading or financial corporations formed within the limits of the Commonwealth”, “external affairs” and “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State”. In these and other cases, the test is simply: what do these words mean to us as late 20th century Australians? Such an approach accords with the recognition of Isaacs J in The Commonwealth v Kreglinger & Fernau Ltd and Bardsley that our Constitution was “made, not for a single occasion, but for the continued life and progress of the community”.

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 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.

But even if we continue to hold, as Windeyer J asserted in Ex parte Professional Engineers’ Association, that the meanings of the words in the Constitution do not change as language changes, the meanings that we now place on the Constitution may not entirely coincide with the meanings placed on it by those who drafted, approved or enacted that document. That is because a Constitution contains implications, inferences and propositions as well as words, phrases and clauses. Experience derived from the events that have occurred since its enactment may enable us to see more in the combination of particular words, phrases or clauses or in the document as a whole than would have occurred to those who participated in the making of the Constitution.

Does that mean McHugh J would have ruled that the Commonwealth has power to legislate for gay marriage?  Your guess is as good as mine.  But he’s retired now anyway!  What would the current majority now rule?  I have no idea.  However it is impossible sensibly simply to assume that the Commonwealth does have that power.  If it ends up legislating there will certainly be a constitutional challenge.  That’s the only way we’ll discover the answer.  If the answer is in the negative then the States could legislate piecemeal, but it may well remain the case that the Commonwealth’s power would nevertheless extend to prohibiting the States from calling any gay union a “marriage”.  The sensible solution in a policy sense (if one leaves aside the deep objections of many religious people, which neither major party is likely to do) would be for the States to refer whatever powers they possess in relation to gay marriage to the Commonwealth under Constitution s 51(xxxvii) and for the Commonwealth then to legislate to legalise gay marriage.  However I can’t see that happening in the foreseeable future.  Moreover, the practical significance of any such legislation would be minimal.  Contrary to the uncontested assertions of the gay butchers interviewed on the 7:30 Report, gay couples can leave their property to each other by will and are not subject to greater legal disadvantages in that respect than a married heterosexual couple.  Indeed there are now very few practical legal distinctions between gay and heterosexual married couples (apart for the fact that the former can’t call their union a “marriage”).  I’m not suggesting that this symbolism is completely meaningless, but it’s not really a first order social justice issue.

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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21 Responses to Legislating for two jokers and a cocker spaniel

  1. JC says:

    Indeed there are now very few practical legal distinctions between gay and heterosexual married couples (apart for the fact that the former can’t call their union a “marriage”). I’m not suggesting that this symbolism is completely meaningless, but it’s not really a first order social justice issue.

    Well actually I don’t think it’s meaningless, Ken. If gay people thought about a little more they would be back peddling at the speed of light away from legally sanctioned marriage to avoid the vortex of the redistribution racket and anti-male paradise known as the family court where a man leaves knackered and in most cases financially and mentally destroyed. I’m not speaking from personal experience here but from the point of view of several friends who were left almost destitute and virtually childless (in one case). I lucked out and have stayed married, however if I had my time again there wouldn’t be a chance in hell I would have taken the shot knowing what I know now in terms of how the law rapes males.

    Any decent and loving father would be strongly counseling his boy(s) to never ever entertain the idea of marriage today until the law is substantially changed to the point that it’s no longer recognizable.

    A gay man or woman with any semblance of assets would be most likely stripped of at least half of more (if the other partner doesn’t work) as a result of this racket.

    If there any gays out there reading this, for your own sake, do not support gay marriage under any circumstances. In fact consider yourselves the lucky few who are able to avoid potential hell on earth. Don’t feel left out, as you’re not. Feel free and contented. All the stuff in terms of property disposal in case of death can easily be handled by wills etc.

  2. Jacques Chester says:

    As usual:

    If the drafters intended the Constitution to be fluid, why did they write it down?

    And if the drafters intended the meaning of the Constitution to change according to the vagaries of the dictionary, why did they bother including a mechanism for amendment as well?

  3. Ken Parish says:

    “If the drafters intended the Constitution to be fluid, why did they write it down?”

    I’ll let Andrew Inglis Clark explain it. He was the principal drafter of the Constitution, along with Sir Samuel Griffith

    But the language of the Constitution will be construed by the Courts of the Commonwealth in accordance with the fundamental principles and rules of political and legal hermeneutics, and it is inevitable that the Constitution will in this manner be supplemented in the course of time by a body of judicial decisions, which may either extend or restrict the application of the language used in some of its provisions beyond or below the literal and primary meanings of the words employed. In every case in which the language used is grammatically or etymologically capable of varying interpretations, the particular meaning to be given to it must be determined by the applicability of that meaning to the purposes indicated by the whole of the context. …

    It has been repeatedly stated that the fundamental rule for the interpretation of a written law is to follow the intention of the makers of it as they have disclosed it in the language in which they have declared the law. In cases in which the intention of the lawmakers was clearly limited to a specific purpose by the use of explicit and direct language which is not capable of application to any other purpose, there cannot be any difficulty in applying the rule. But where the intention of the makers of the law was to provide a general rule of conduct to be observed in a multiplicity of circumstances, and the rule is necessarily expressed in general terms, the question of the intention of the lawmakers constantly resolves itself into an inquiry whether a particular act or a particular set of circumstances is within the general language which they have used. In many cases it will be perfectly evident that the particular act or the particular set of circumstances in respect of which the question is to be determined could not have been in the contemplation of the makers of the law, and therefore it cannot be said, in the strictest sense of the words, that the makers of the law have expressed any intentions in regard to the matter. In every such case it becomes necessary to apply to the language of the law a method or process of interpretation which is usually described as construction, and which consists in examining the language of the law for the purpose of ascertaining whether it is such as we may reasonably believe the makers of the law would have regarded as sufficient to embrace the particular act or set of circumstances in question if it had been foreseen by them. If a critical examination of the language of the law leads to the conclusion that the makers of the law would not have felt it necessary to vary it in order to embrace the particular acts or circumstances in question if they had foreseen them, and that, on the other hand, they would have felt it necessary to vary the language of the law if they had wished to exclude them from its purview, then the language of the law is construed to embrace them.

  4. David Turnbull says:

    http://www.austlii.edu.au/cgi-bin/sinodisp/au/legis/cth/consol_act/ma196185/s88ea.html

    Explicitly refusing to recognise foreign same-sex marriages is some serious discrimination.

  5. desipis says:

    If a critical examination of the language of the law leads to the conclusion that the makers of the law would not have felt it necessary to vary it in order to embrace the particular acts or circumstances in question if they had foreseen them, and that, on the other hand, they would have felt it necessary to vary the language of the law if they had wished to exclude them from its purview, then the language of the law is construed to embrace them.

    There were laws in existence (whether or not in Australia) at the turn of the century that would have limited marriage, involving issues such as bigamy or interracial marriages. It’s hard to imagine that at the time marriage was exclusively considered to be exactly one man and exactly one women, so the powers conferred in the constitution must have been at least been sufficient to control who could get married.

    It’s also hard to imagine that if the constitutional authors had considered the issue of gay marriage that they would have chosen to assign the power of limiting the gender of who could get married to the states, when all other powers relating to marriage are assigned to the federal parliament under s 51(xxi). If the authors of the constitution had intended the powers to define marriage (in the narrow sense) to be assigned to the states, while powers involving the operation of marriage were to be assigned to the federal parliament, then I can’t imagine them not including specific provisions in the constitution to do just that.

  6. Jacques Chester says:

    Ken;

    Good quote and well argued. Like ships, Acts acquire barnacles.

    But even assuming that some clauses should be read strictly and some generally, the fact is that it was written down in order to fix the set of strict and general clauses according to what the drafters had in mind.

    I realise that there is always, always going to be unforeseen and unforeseeable problems. But I think that you can go too far in the “current meaning” direction because it leaves miles of wiggle room for ambitious judges. I prefer a bias towards intentionalism because a mechanism to change the Constitution is embedded in the Constitution.

  7. Ken Parish says:

    Desipis

    The marriage power is a concurrent power not an exclusive Commonwealth power i.e. either the Commonwealth or States can legislate about it but any Commonwealth law prevails because of Constitution s 109. That is why I commented in the primary post that the Commonwealth could probably still prohibit the States from expressly labelling any gay unions for which the latter legislated as “marriages”. Indeed the current definition of “marriage” in the Marriage Act 1961 (Cth) is “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. Even if the High Court were to hold that the commonwealth has no constitutional power to legislate for gay marriage, that defintion may well of itself preclude any state leguislation from calling State-sanctioned gay unions as “marriages”.

    Your general argument that it is implausible that the founders did not intend to confer a complete power on the commonwealth to regulate all marriage-like relationships is undermined by the fact that the High Court held in Russell v Russell and Farrelly v Farrelly in the 1970s that the marriage power did n NOT permit the Commonwealth to regulate de facto relationships. The only way the Commonwealth has been able to bring custody and property matters concerning de facto relationships under the family Law Act is by State referrals of power under Constitution s 51(xxxvii). It is quite likely (thopugh far from certain) that the situation with gay unions will be similarly held to be beyond Commonwealth constitutional power.

    Jacques

    I’m not arguing that the High Court SHOULD hold that the marriage power allows the Commonwealth to regulate gay marriages. I don’t have strong views either way, but I agree that holding that the Commonwealth does have that power would involve embracing (overtly or otherwise) a Kirbyesque “living tree” approach. OTOH One might mount an argument a bit like desipis attempts above. That is, it is unlikely that the Founders had a totally rigid conception of marriage in mind when they enacted the marriage power. No doubt they contemplated (or would have contemplated if asked) that the Commonwealth could enact a variety of laws defining and regulating bigamy, mrriageable age and a range of other matters in ways that differed from the prevailing norms in 1901. That is, they would have accepted that the very concept of legislative power permits the Patrliament to adopt an evolving view of the requirements for a valid marriage.

    However, whether that acceptance of an evolving concept of marriage could properly be stretched to include gay unions within the constitutionally-intended meaning of “marriage” is much more questionable. In reality such an acceptance arguably involves abandoning any real reliance on originally intended meaning, and comes perilously close to Kirby’s Humpty Dumpty approach. I’m not comfortable with that for reasons well explained by Samuel Popkin (which I’ve quoted before):

    “The simple act of thinking about the meaning of statutory language in this broader context – which the judge must do – requires judgment about how the text should interact with its past and future. That is why, despite its being an obvious fiction, the judge when engaged in statutory interpretation is unable to do without the concept of legislative intent. Intent is matched with text as an essential aspect of statutory meaning, not because the judge has any confidence that legislative intent is knowable, but because ‘intent’ (or ‘will’) captures the idea that choices must be made in order to apply a text to facts. Legislative intent is a useful judicial construct because the judge is required to make the choices that best express the statutory text’s meaning.”

  8. Pingback: Marriage equality leadership & the Constitution

  9. Andrew Norton says:

    JC – Alas for your fathers and sons, not bothering with the marriage certificate will be of little help to the sons if the courts deems their relationships sufficiently marriage like. As far as I can see, formal marriage is now a largely symbolic event with only a few legal mostly minor legal differences from de facto relationships.

    Arguably for gay couples it is the worst of both worlds: the state denies them symbolic legitimacy, but applies the punitive aspects of divorce law if their relationship breaks down.

  10. JC says:

    JC – Alas for your fathers and sons, not bothering with the marriage certificate will be of little help to the sons if the courts deems their relationships sufficiently marriage like

    Not if you move on and keep a diary of any encounters… as one dude I know is doing since he was clipped with a truly horrendous legal claim. He was seeing a woman a couple of times a week and she tried to sue for maintenance, so now he moves around and keeps notes….. Seriously!

    Arguably for gay couples it is the worst of both worlds: the state denies them symbolic legitimacy, but applies the punitive aspects of divorce law if their relationship breaks down.

    Andrew

    I thought that only applies in cases where children are involved otherwise the family court has no jurisdiction over property claims. Is that incorrect?

  11. wizofaus says:

    At least for the immigration department, marriage is still considered a more significant bond than a de-facto relationship – you can get a permament residency visa for spouse the day after you marry them, but need proof of 12 months co-habitation for de-facto relationships. I’m guessing there are similar differences in other areas?

  12. Andrew Norton says:

    JC – I am not expert on the detailed test, but as I understand if you are deemed in a de facto relationship the same law applies whether you are married or not. As wizofaus suggests, one of the differences marriage makes is that there is no or less need to prove the relationship.

  13. JC says:

    Thanks Andrew.

    Unless I’m mistaken the only time the Family Court (redistribution tribunal) gets involved is when there are kids in a same sex relationship, otherwise gay relationships are off-limits.

  14. conrad says:

    JC,

    perhaps this hasn’t occurred to you, but it’s rather unlikely that there are going to be gender equity issues in gay marriages.

  15. JC says:

    You mean like there would be no financial disparity between a gay couple in terms of what they bring to the relationship? Why would I Conrad, as that’s an absurd idea.

    Family court is an out of control redistribution factory, why would it treat asset confiscation distribution any different to what it does with hetro couples?

  16. conrad says:

    JC,

    most of your comments seem to be whinging about how the male is always worse off (e.g., comment 1: “redistribution racket and anti-male paradise known as the family” and comment 10:”some dude..”). If you don’t want your assets unfairly (in your mind) confiscated, then don’t have children, in which case I believe the 50/50 division no longer holds (perhaps someone knows how the legal status of this aspect changes), or make sure you marry someone richer than yourself.

  17. JC says:

    Conrad..your first comment didn’t seem to work out too well, so you’re trying another route in that cul de sac you’ve driven into.

    most of your comments seem to be whinging about how the male is always worse off (e.g., comment 1: “redistribution racket and anti-male paradise known as the family” and comment 10:”some dude..”)

    Okay, then disagree with the proposition. I’m not “whinging” by the way, as I have nothing to whinge about. However I’ve witnessed a few cases that would lead me to think the family court is a redistribution racket. So argue against that, if you choose.

    If you don’t want your assets unfairly (in your mind) confiscated, then don’t have children, in which case I believe the 50/50 division no longer holds (perhaps someone knows how the legal status of this aspect changes),

    That isn’t correct. Assets can still be confiscated without kids. Viciously so, even if it’s a casual relationship.

    or make sure you marry someone richer than yourself.

    Really? Would you also apply the same standard to women? Lol

  18. Corin says:

    JC, you are a strange man. Really would fear consume you that much to keep a diary of encounters. The point is, the court would look past the form to the substance, so if you lived together and contributed to each others benefit, particularly having kids, over a number of years, likely that some redistribution of assets would occur. Marriage is ultimately a partnership, it is also a function of modern life that when kids are involved, the ‘main bread winner’ has to shoulder some burden. There is no cutting and running, and if there is, I tend to agree with David Cameron that this should become like the new drink driving, a true malignant act. There are times when ‘libertarians’ use their beliefs to escapes mutuality which in any decent society is what binds us. That the state has to impose it on fathers, so be it. By the way the law was changed under Howard to shared parenting as a general default, so Australia has very strong rights of access for fathers. That someone does not have access is more likely to result from some other failing of the father I’d have thought, like violent actions.

  19. JC says:

    Corin, Trust me, I’m not as strange as what I think you are. However having said that, the story about keeping a diary on relationships has to do with a friend of mine who was sued for several millions by a woman because he saw her perhaps on average 1 1/2 times a week over a two year period. His only interest was sex having no serious intentions at all beyond that and was quite explicit about this with her, so she was under no misrepresentation.

    I would suggest that a diary isn’t a bad/cheap way of loss mitigation seeing the law now recognizes even casual encounters. If you don’t well that’s fine, but hitting a wall head on could be painful.

    As for asset distribution.. it’s gone much further than merely taking care of the kids. Somehow I don’t consider it fair for say a guy to be thrown out of the home he bought with his own money.. the home he paid for where his wife and kids live…on which he’s still paying the mortgage… and he goes and lives is a tiny flat… while the wife has the new boyfriend move into the home ex is still paying for. Keep deluding yourself that doesn’t happen, but it does.

    As for your claim a father must be mentally defective/violent and therefore doesn’t have access to the kids… That’s inaccurate. All that needs to happen these days is for that a claim of violence being made and the father is banned from seeing his kids alone. If he is, it’s usually for a few hours and under supervision. A friend, a family law attorney I know has pretty much suggested that the equivalent of 911 occurred in terms of tightening up the law further against fathers than what it was after that monster through his child over the Melbourne Bridge a few years ago. Fathers are treated with scorn and contempt, so I wouldn’t buy the femi bullshit that the prevention of fathers seeing their kids automatically means the man is violent. It’s not true.

    But don’t turn this into another argument. My point is that the last thing gay couples should want is getting caught in the dragnet of the family court seeing the fail rate in marriages is around 50%. In fact they ought to consider themselves blessed they aren’t. Now if you have an argument against that, I’d be happy to hear it.

  20. Corin says:

    JC, I tend to think that millionaires losing a bit is not the main problem, though I would expect that was duly seen as a litigant act, not a genuine case, probably seeking a payoff (go away money). Me-guess is that the main problem is the 14 % of kids now in workless households, which are either on benefit only or child support from father as well. I think fathers should contribute to ensure those kids receive a good opportunity in life. Personally, I find it amazing that so many marriages break down in an era when people marry later. I may become all ‘methodist socialist’ on this topic but frankly I am a believer in mutuality in bringing up kids. The fact that society has to mandate it is not my preferred measure but if it has to, a couple of millionaires looking over their shoulders and keeping diaries is probably the price worth paying.

    BTW – on topic I also think that David Cameron has a lot he could teach Julia Gillard on how to establish the idea of civil partnerships as broadly accepted concept even in conservative minds. It is about mutuality and don’t call it marriage, job done. Society should support systems that form households with strong bonds.

  21. JC says:

    C, I tend to think that millionaires losing a bit is not the main problem

    What’s a couple of million between old bed friends, hey Corin? It’s his or her money; s/he has lots of it, so who cares, right?

    Which is exactly the problem I’m alluding to and why gays ought to be peddling a mile a second from state based marriage/family court.

    , though I would expect that was duly seen as a litigant act, not a genuine case, probably seeking a payoff (go away money).

    Yep and she did get a substantial payoff because the casual fling was longer than that prescribed by the law. It’s basically legalized stealing.

    I think fathers should contribute to ensure those kids receive a good opportunity in life.

    Nearly all fathers love their kids. However living separately, paying the mortgage on the ex’s house does take its financial toll. If social security is easy to obtain then the number of claims may also be impacted by moral hazard issues.

    Personally, I find it amazing that so many marriages break down in an era when people marry later. I may become all ‘methodist socialist’ on this topic but frankly I am a believer in mutuality in bringing up kids.

    Why do you disbelieve that fathers don’t want to participate? 90% of marriages fail because the woman calls it off and the guy is forced to leave or forced to sue for divorce. Stats indicate the female calling it off is around 70%, however on closer examination it gets closer to 90% through anecdotal evidence.

    The fact that society has to mandate it is not my preferred measure but if it has to, a couple of millionaires looking over their shoulders and keeping diaries is probably the price worth paying.

    I’ll repeat it. You do realize that the millionaires money you’re casually dismissing would the category that would include gay couples as a large number are high income earners.

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