The marriage power: constitutional issues.(LEGAL NOTES)

• Author: Zimmermann, Augusto
• Position: 164548225
• Pages: 63(5)

When Australia became a nation on 1 January 1901, it also became a federation. The federal system then created by the Constitution divides power between the Commonwealth and the States. Under this system, the task of the High Court is to ensure that the constitutional powers of each level of government are properly respected. It does so by striking down any federal or state law which is contrary to the terms of the Australian Constitution.

Where there is a conflict between a federal and a state law, and the subject of the law refers to a concurrent power--that is, one which is vested in both the Commonwealth and the States--section 109 of the Constitution must be applied: "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former, to the extent of the inconsistency, be invalid."

The areas of Commonwealth legislative power are listed in sections 51 and 52 of the Constitution. They grant the Commonwealth legislative power over 40 specific areas, including marriage and divorce. Since the Engineers' case (1920), the High Court has adopted a "generous" approach to the interpretation of federal powers, thus reading the enumerated powers of the Commonwealth expansively. As Stewart and Williams point out: (1)

"The Court has taken a liberal approach to the process of 'characterisation'. So long as a law deals with a subject that is within the heads of power, it does not matter that it can also be characterised as being about a subject that falls outside those heads. Nor is it relevant that the principal concern or motive of the legislators may have been to regulate the latter subject ... [Moreover], and with only a few exceptions, the Court has refused to interpret the various heads of power by reference to any concept of 'mutual exclusiveness'. The fact that one head of power may be used in such a way as to go beyond the limits of another power does not mean that the first power will be construed narrowly so as to prevent an overlap." In reality, the High Court's interpretation of the Commonwealth power in s51 has been "heavily influenced by the Engineers' doctrine, which established that each paragraph of s51 must be given its widest literal meaning". (2) In Polyukhovich v Commonwealth (1991) 172 CLR 501, for example, High Court Justice Deane argued for the majority that all "the grants of legislative power contained in s51 [including the marriage power] must be construed with all the generality which the words used admit and be given...