What is meant by the term ‘marriage’ in section 51 (xxi)?
The Commonwealth’s power with respect to marriage comes from s. 51(xxi) of the Constitution. Section
The Parliament shall … have power to make laws for the peace, order, and good government of the Commonwealth with respect to: – Marriage.
The effect of the Marriage Act 1961 (Cwlth) and section 109 of the Constitution is that the Commonwealth has exclusive jurisdiction over the formation of marriages in Australia (i.e. there is no room for States to legislate).
The descriptions of the term ‘marriage’ used in the Family Law Act 1975 (Cwlth) (s. 43(a)) and the Marriage Act 1961 (ss. 46(1) and 69(2)) are based on the definition in the 19th century English case of Hyde v. Hyde and Woodmansee,2 namely, a formal, monogamous and heterosexual union for life. While the High Court of Australia has interpreted the scope of the s. 51 (xxi) on numerous occasions, it has not given any detailed consideration on the meaning of the term ‘marriage’. Set out below is the available High Court opinion on the term ‘marriage’ in s. 51 xxi) of the Australian Constitution.
In Attorney-General for N.S.W. v. Brewery Employees’ Union of N.S.W., Higgins J., was of the opinion that:
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.3
In Attorney-General (Vic) v. Cth, McTiernan J. was of the opinion: The term marriage bears its own limitations and Parliament cannot enlarge its meaning. In the context—the Constitution—the term ‘marriage’ should receive its full grammatical and ordinary sense: plainly in this contest it means only monogamous marriage. In my view, the term in par. (xxi) refers to marriage as a social transaction: but as the term marks the outer limits of the power conferred by par. (xxi) its meaning is not imprecise. In my view, the term cannot be extended further than to embrace uniting in marriage and the status of marriage.4
Windeyer J., was of the opinion that: It has been suggested that the Constitution speaks of marriage only in the form recognised by English Law in 1900 … and that therefore the legislative power does not extend to marriages that differ essentially from the monogamous marriage of Christianity. That seems to me an unwarranted limitation. Marriage can have a wider meaning for law.5
Windeyer J. also cited with approval the opinion of Higgins J. in Attorney-General for N.S.W. v Brewery Employees’ Union of N.S.W.6
In contrast, Brennan J., in Cormick and Cormick v. Salmon was of the opinion that:
The scope of the marriage power conferred by sec. 51 (xxi) of the Constitution is to be determined by reference to what falls within the conception of marriage in the Constitution, not by reference to what the Parliament deems to be, or to be within, that conception.7