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LAWS314 Christiana Daaboul 44646585

In Commonwealth v Australian Capital Territory (Same-Sex Marriage Case) (2013) 250 CLR 441, the High Court held that the Commonwealth has the power to pass laws for same-sex marriages under the marriage power (s 51(xxi)). Was the High Court correct? Your answer should analyse how the High Court interpreted the marriage power, and any relevant theories of interpretation.

Introduction The High Court’s flexible interpretation of the marriage power marked the definition of marriage as one ‘juristic classification;’ 1 within the rightful execution of it’s powers. Responsiveness to societal changes and development in relevant precedent formed the base of the High Court’s decision. 2 Criticism against the High Court’s interpretation exists in the form of originalism; the intention behind the original framers based on traditional philosophies of Thomas Jefferson and John Locke, 3 s 116 and the preamble of the Constitution 4 and s 5(1) of the Marriage Amendment Act 2004. 5 This paper will argue that, the High Court was correct in allowing the expansion of Commonwealth powers. The basis of this thesis rests on the foundation, that there was no specific formula for the rightful or correct interpretation of the Constitution 6upon it’s creation. O’Connor J stated that it’s terms are ‘broad and general… intended to apply to the varying conditions which the development of our community must involve.’ 7 Essentially, this becomes a debate between originalism and progressivism; to which this paper argues progressivism is the most relevant interpretation.

There are three parts to this thesis. First, un-bounding the criticisms of the progressive approach. Textualism and the progression towards the Marriage Amendment (Definition and Religious Freedoms) Act 2017 8 is the base of the argument against originalism in the case of defining marriage. Second, is the necessity for textualism and a progressive approach rooted in the need to view marriage as a purely legal concept beyond religious barriers. This is adopted by Windeyer J in Attorney-General (Vic) v The Commonwealth. 9 Lastly, utilising international legal frameworks to 1

(2013) 250 CLR 44 (‘Same-Sex Marriage Case’). Ibid. 3 Donald L. Doernberg, ‘We the People: John Locke, Collective Constitutional Rights, and Standing to Challenge Government Action’(1985) 73(1) California Law Review 52, 57. 4 Australian Constitution s 116. 5 Marriage Amendment Act 2004 (Cth) s 5(1). 6 Michael C. Dorf, ‘Integrating Normative and Descriptive Constitutional Theory: Case of Original Meaning’ (1997) 85 Cornell Law Library 1765, 1810. 7 George Williams, Labour, Law and the Constitution (The Federation Press, 1st ed, 1998) p 27. 8 Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). 9 Attorney-General (Vic) v The Commonwealth [1962] 107 CLR 529 (per Windeyer J). 2

give weight to recovering inconsistencies between federal and state law; particularly between the Civil Unions Act 2012 (ACT) 10 and the Marriage Amendment Act 2004 (Cth). 11

1. Progressivism and Statue Law Originalism, reliant on keeping with the philosophical theories of John Lock, is debunked as a concrete basis for legal framework. These philosophical theories are only theories, based on the idea that the formation of government was not a religious creation, the freedom of sin from original nature and the protection of life, liberty, property and human equality. 12 Kirby J in Brownlee v The Queen stated that ‘the text of the Constitution must be given meaning as its words are perceived by succeeding generations of Australians, reflected in this Court (High Court).’ 13 The first progressive approach is given authority by the theory of popular sovereignty in Theophanous v Herald & Weekly Times Ltd. 14 The acceptance of the majority releases the ‘dead hand’ of the framers and allows the Constitution to operate as a ‘living instrument of its vitality and its adaptability to serve succeeding generations.’ 15 Instead of interpreting the High Court’s decision as reluctant to indulge in the analysis of the tradition behind the definition of marriage, one should analyse the reasoning to seek progression as the significant factor in keeping the Constitution relevant.

McHugh J argues that the ‘courts, as much as the legislatures, are in continuous contact with the needs of the community.’ 16 In reference to s 116 of the Constitution; there is an explicit mention of the establishment of law to create a religion, impose against any religious observance or prohibit the free exercise of religion. 17 Religious bias skews the originalism approach of the preamble; although

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Civil Unions Act 2012 (ACT). Marriage Amendment Act 2004 (Cth). 12 Doernberg, above n 2, 58. 13 Brownlee v The Queen (2001) 207 CLR 278 (per Kirby J); 283. 14 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 172. 15 Ibid (per Deane J);106. 16 Mr Justice Michael McHugh, ‘The Law-making Function of the Judicial Process - Part I’ (1988) 62(15) Australian Law Journal 116, 127. 17 Constitution s 116. 11

there is Christian heritage embedded in the Constitution, 18 a progressive approach allows cultural expression through the protection of the explicit right religious freedom under s 116. 19 The Marriage Amendment (Definition and Religious Freedoms) Act 2017 20 is a product of the success of the progressive approach. Alasdair MacIntyre presented the philosophical theory that tradition is ‘an historically extended, socially embodied argument.’ 21 The embodiment of realism and positivism extends the definition of marriage to ‘juristic classification.’ This is evident through the definition of ‘authorised religious celebrant’ and ss 5(1) to omit ‘a man and a woman’ and substitute ‘2 people’ into the original definition of marriage. 22 The departure from originalism in the interpretation at focus, 23 allowed the Marriage Amendment (Definition and Religious Freedoms) Act to simultaneously legalise same-sex marriage and protect religious freedom.

In Singh v Commonwealth 24 the majority (Gleeson CJ, Gummow, Kirby, Hayne, Heydon JJ) ruled that birth in Australia did not serve as a basis, for the status of ‘non-alien’ for the purpose of s 51(xix) of the Constitution. 25 The joint judgment of Gummow, Hayne and Heydon JJ reasoned the decision with the definition of an an alien as ‘a person who owes allegiance to a foreign state,’ where ‘Ms Singh owes allegiance to a foreign state (by virtue of her Indian citizenship)’ and thus, is viewed as an alien. 26 This literal approach fails to incorporate the changing application of refugee status over time. McHugh J disagreed with the majority decision 27 and related citizenship and marriage by the articulation that ‘the people’ are constitutional citizens where a person is born in Australia, allegiance is owed to the Queen and thus cannot be an alien under s 51(19) 28 of the 18

Ibid. Ibid. 20 Marriage Amendment (Definition and Religious Freedoms) Act 2017 21Alasdair MacIntyre, ‘Objectivity in Morality’ in Tristram Engelhardt and Daniel Callahan (ed) Morals, Science and Sociality (Hastings on Hudson, NY; Hastings Center, 1978), 27, 222. 22 Marriage Amendment (Definition and Religious Freedoms) ss 5(1). 23 Same-Sex Marriage Case 250 CLR 44. 24 Singh v Commonwealth (2004) 222 CLR 322 (per Gleeson CJ, Gummow, Kirby, Hayne, Heydon JJ). 25 Constitution s 51(xix). 26 222 CLR 322 (per Kirby, Hayne, Heydon JJ). 27 Ibid 357(4) (per McHugh); Pochi v Macphee (1982) 151 CLR 101, 109. 28 Constitution s 51(19). 19

Constitution. Where relevant, definitions are to be altered as a statutory concept which is within the scope of the parliamentary power. Here, the progressive constitutional approach allows change to occur with society; all citizens attaining to the right to marriage on the basis of their ‘allegiance to the Queen.’ 29 Rather than, against the fundamental nature of social structure, human equality, liberation and function.

2. Removal of development barriers through textualism The High Court’s interpretation of marriage power adheres to the point that the Constitution is a ‘product of legislative procedures in which debate and deliberation is focused on the production of a specific text to be enacted in a particular form of words.’ 30 Textualism allows literalism to fuse with legalism, uncovering marriage power as a legal definition within the scope of parliamentary change and judicial precedent. McHugh J in Theophanous v Herald & Weekly Times Ltd stated that ‘the true meaning of a legal text depends on a background of concepts, principles, practices, facts, rights and duties which was taken for granted or understood, without conscious advertence.’ 31If the court is unable to execute judgment with the outcomes of precedent, the value of judiciary outcomes becomes invalid and upholding the rule of law becomes almost non-existent. Originalism is confined to the intention of the original framers, which is, often undermined by the context of their understanding. This poses the question; if the High Court decision in Commonwealth v Australian Capital Territory (Same-Sex Marriage Case) 32 was restricted from use by latter judicial judgments, will Australia have progressed to its current definition 33 of marriage power?

Brennan J noted in Fisher v Fisher that ‘constitutional interpretation of the marriage power would be an exercise in hopeless circularity if the Parliament could itself define the nature and incidents of 29

Ibid. Peter Gerangelos et al (3rd ed) Australian Federal Constitutional Law (Thomas Reuters; Lawbook Co, 2012) 1358. 31 (1994) 182 CLR 104, 196 (per McHugh J), 32 Same-Sex Marriage Case 250 CLR 44. 33 Marriage Amendment (Definition and Religious Freedoms) ss 5(1).

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marriage by laws enacted in purported pursuance of the power.’ 34 Contrary to this, Craven argues that the meaning of legal ethics is given light through achieving the correct result by proper means. 35 The fundamental ethical drive of constitutional interpretation is to abide by the rule of law and maintain the democratic powers of constitutional amendment. Movement in any form away from the intention of the original framers, creates a centralisation of power in the hands of the High Court in which Craven articulates as ‘the most, destructive force in bringing the vision of the men of 1897 to substantial ruin.’ 36 Such criticism does not recognise the scope of judiciary jurisdiction for constitutional interpretation. 37 Nor does it allow the interpretative benefits of textualism to rise to the surface, in response to societal changes and, developing precedent.

3. Legal frameworks and inconsistency Australia operates without a fundamental bill of rights document. This applies pressure on the Constitution to operate as a fundamental document enshrining rights; where this is lacking in the original construction, progressivism and textualism should be administered. Mason J stated that ‘if we do not enact a Bill of Rights we will stand outside the mainstream of legal development taking place in other common law countries…’ 38 Negative strings arise from the rigid nature 39 of the American Bill of Rights. If originalism is the ‘correct’ constitutional interpretative method in the High Courts decision, the Constitution only omits a stagnant nature, 40 which fails to holistically incorporate fundamental human rights. Through, flexible constitutional interpretation, the High Court enables the Constitution to be responsive to social changes and, thus developing with national and international legal frameworks. Positive strings flourish from the balance of of seeking

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Dan Meagher, ‘The Times are they A-Changin'? — Can the Commonwealth Parliament Legislate for Same Sex Marriages?' (2003) 17 Australian Journal of Family Law 134, 152. 35 Commonwealth, The High Court and the Founders: an Unfaithful Servant, Parl Paper No 30 (1997) 12. 36 Ibid. 37 Constitution Ch III. 38 Sir Anthony Mason, ‘The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience’ (1986) 16 Federal Law Review 2, 13. 39 Ibid 22. 40 Ibid.

intention of the original framers, unraveling the literal meaning of the text and applying the natural essence of the statute and common law that preceded the phrase of marriage union.

O’Connor J in Jumbunna Coal Mine NL v Victorian Coal Miners’ Association stated that ‘it must always be remembered that we are interpreting a Constitution broad and general in its terms’

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Flexible interpretation within rightful jurisdiction of the judiciary is the vehicle needed to eliminate inconsistencies between state and federal law. The Commonwealth argued that it was prohibited for any other legislature to fabricate the legal status of marriage in any form; refraining from the fabrication of dealing with ‘issues arising from the union.’ 42 This is relevant in upholding the rule of law, and keeping the interpretation of the Constitution to the High Court. In essence, flexibility breeds inconsistency when the branch behind the interpretation is spread across the states. It is within the scope of the High Court, and only the High Court, to reflect an interpretative community 43 whilst, aware of conservatism in tradition which may restrain radical shifts in culture. 44

In Kartinyeri v Commonwealth, the court was left the task to decipher the meaning of the word ‘special’ 45 to decide whether the Commonwealth can pass a law under race power which may be detrimental to a racial group in its entirety. Racial and cultural groups can be grouped in similar realms, 46 when fundamental human rights exist at the core essence. The High Court must balance the tension between efforts to ‘create structures that enable individuals and communities to fulfil

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Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309, 367-8 (per O’Connor J). Mason, above n 36, 22. 43 Stanley Fish (1st ed) Is There a Text in this Class: The Authority of Interpretative Communities (Harvard University Press, 1980) 240. 44 Ibid. 45 Michael Kirby, ‘The Future of Courts - Do They Have On?’ (1988) 9(2) Journal of Law: Information and Science 141, 145. 46 Kartinyeri v Commonwealth (1988) 195 CLR 337. 42

their deepest aspirations’ 47 and, to establish ‘a broader conception of human rights.’ 48 The Court remained undecided on the case, which is evidence of the lack in progression in indigenous land rights; where superiority based on cultural domains are almost non-existent. Gummow & Hayne JJ noted that ‘parliament can legislate to remove a benefit they have given through legislation.’ 49If the removal is clear and unambiguous. 50 To remain consistent in constitutional interpretation, where the court can remove a benefit, the court can give the Commonwealth the power to create a benefit. Real equality before the law, exists when racial, cultural and ethnic groups can benefit from the function of the judiciary, parliament and executive. Sir Owen Dixon as Chief Justice in 1952 stated; ‘the court’s sole function is to interpret a constitutional description of power or restraint upon power and say whether a given measure falls on one side of a line… there is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.’51

Same-sex marriage is a subject of a cultural shift in society. The High Court exercised its judicial power rightfully in allowing a minority, the benefit of accessing the fundamental human rights

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reaffirmed by Kirby J in the Bangalore Principles 53 as the basis of the Constitution.

The High Court was correct in allowing the Commonwealth under s 51(xxi) 54, the power to enact laws upon the definition of marriage power. This is evident through the current legal development, the simultaneous protection of religious freedoms and attaining to an advancing legal framework. The balance of textualism and progressivism, whilst excluding the skewed ideas of originalism formulates a realm of constitutional interpretation that; sustains adaptability to the individual SameSex Marriage case and legislation at hand. McHugh J states ‘any theory of constitutional 47

Morton J. Horwitz, ‘The Warren Court: Rediscovering the Link Between Law and Culture’ (1988) 55 Harvard Law School 450, 462. 48 Shelley Wright, ‘Economic Rights and Social Justice: A Feminist Analysis of Some International Human Rights Conventions’ (1992) 12 Australian Yearbook of International Law 241, 242. 49 Coco v R [1994] 179 CLR 427 (per Gummow & Hayne JJ). 50 Ibid. 51 Charles J. Sampford and Kim Presto (1st ed) Interpreting Constitutions: Theories, Principles and Institutions (The Federation Press, 1966) 62. 52 Leigh A.H Johns, ‘Justice Kirby, Human Rights and the Exercise of Judicial Choice’ (2001) 27(2) Monash University Law Review 272, 300. 53 The Bangalore Principles (l988) 62 Australian Law Journal 531, principle 2. 54 Same-Sex Marriage Case 250 CLR 44.

interpretation must be a matter of conviction based on some theory external to the Constitution itself.’ 55 The theory is rooted in the fundamental right to freedom of cultural or religious expression; in every respect.

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McGinty v Western Australia (1996) 186 CLR 140, 230 (per McHugh)....