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.