Honours Thesis - Elodie Cheesman.pdf

169 use of this approach has been limited mchugh j

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169 Use of this approach has been limited. McHugh J stated that the level of abstraction for some constitutional words is much harder to identify, and pointed to ‘marriage’ as an example. However, while Goldsworthy asserts a paucity of ‘relative terms’ in the Constitution , 170 Kirk suggests that a careful reading produces a lengthy list of context-dependent criteria. 171 It is difficult to see why s 51(xxi) would be precluded from this list. Firstly, it seems arbitrary to affix a level of abstraction to any provision (aside from s 92 which has an historical meaning). Even the archetype of ‘thing with fixed external boundaries’, the lighthouse, might require a progressivist interpretation if in the future lighthouses were replaced by a different system for guiding sea vessels. 172 Secondly, the Convention Debates evidence the Framers’ view of marriage as contingent on community values. Mr Wise (NSW) said that ‘…in all social questions such…as marriage, each community might be allowed to legislate according to its 165 (1999) 198 CLR 511, 552. 166 Ibid, 552-553. 167 R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190, 233. 168 (1983) 153 CLR 297, 312. 169 Koowarta v Bjelke Petersen (1992) 153 CLR 168, 218. 170 Goldsworthy, ‘Originalism in Constitutional Interpretation’, above n 42, 42-43. 171 Kirk, above n 64, 335. 172 Michael Coper, ‘The Place of History in Constitutional Interpretation’, in G Craven (ed), The Convention Debates 1891-1898: Commentaries, Indices and Guide (Legal Books, 1986), 5.
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35 own ideas of right and wrong…’. 173 Though speaking to geographical and religious difference rather than temporality, he acknowledged social context-dependency. The Honourable CH Grant (Tas) also spoke about federal parliament ‘ evolv[ing] an [sic] uniform law of marriage’. 174 If we were to frame ‘marriage’ as a term whose dynamic operation was intended by the Framers, it could be interpreted as ‘such unions/legal relationships as should from time to time be described as marriages’ and hence encompass same-sex marriage if Federal Parliament were to legislate for it. The ambiguities of this approach are apparent. What is required or valued by modern society is not, as claimed in R v Coldham , a matter of fact. Rather, it requires the High Court to make a choice. One approach to this ‘choice’ is illustrated by Gaudron J’s dissent in Nolan , where she said in respect of s 51(xxix): ‘For most purposes it is convenient to identify an alien by reference to the want or absence of the criterion which determines membership of that community.’ 175 In noting that it was not until the 1987 amendment that the definition of an ‘alien’ as a ‘non-British subject, Irish citizen or protected person’ was removed from the Citizenship Act , Gaudron J contended that the Act’s definition could not control the constitutional meaning of ‘alien’, but could, until its repeal in 1987, serve to identify those whom the Parliament had legislated to recognize as members of the Australian community.
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