Honours Thesis - Elodie Cheesman.pdf

83 brock and meagher above n 14 270 84 the grain pool

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83 Brock and Meagher, above n 14, 270. 84 The Grain Pool of Western Australia v The Commonwealth (2000) ( ‘Grain Pool’ ) 202 CLR 479, 501 (emphasis added).
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19 Even though changes to marriage pertain to cultural and social values rather than technological or scientific development, marriage has similarly been viewed as a ‘recognisable but not immutable institution’. 85 However, though useful, it is by no means a conclusive analogy, for two reasons. Firstly, as pointed out in Grain Pool , the ‘special reason’ why no narrow approach could apply to the Intellectual Property Power is that ‘a universal feature of the twentieth century [was] the dynamic progress and momentum of science and technology’. 86 While the principal inventions of the century were for the most part undiscovered or unforeseen, ‘…the Constitution certainly envisaged that the Commonwealth was entering an age of special technological inventiveness’. 87 So much is evident in the provision of s 51(v) in wide terms: ‘postal, telegraphic, telephonic and other like services’ . 88 Thus, construing future (even unforeseeable) technological developments as coming under the s 51(v) head of power is consistent with originalism. 89 S 51(xxi), however is not formulated as explicitly contemplating the inclusion of future developments. Although the marriage institution had been through many social and cultural developments, it cannot be said to have the same degree of ‘dynamism’ as technological developments, let alone a dynamism explicitly recognized by the Constitution . Secondly, those objects identified in s 51(xviii) did not have a settled meaning at the time the Constitution was enacted. For example, the question of whether ‘patents’ needed to be a physical product, or could just be a process that produced a useful result, was still awaiting final decision. 90 Marriage, on the other hand, had a certain legal definition in 1900. However, there is a clear difference between heads of power dealing with ‘concrete, physical objects’ where ‘the boundaries of the class are fixed by external nature’ (such as lighthouses or railways) 91 and ‘artificial products of society’, as Higgins J pointed out in the 85 R v L (1991) 174 CLR 379, 404 (Dawson J) . 86 (2000) 202 CLR 479, 131 (Kirby J). 87 Ibid. 88 Ibid. 89 Goldsworthy ‘Interpreting the Constitution in its Second Century’, above n 17, 695. 90 This question was not settled until the judgement in National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252. 91 Constitution s 51(vii), s 51(xxxii).
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20 Union Label Case , and the Court acknowledged in Grain Pool . 92 It is thus more appropriate to treat the Marriage Power, concerning as it does an artificial socio-legal construct, similarly to powers over other social constructs like trade marks; as ‘involving a power to alter those rights, to define those rights, to limit those rights, to extend those rights, and to extend the class of those who may enjoy those rights.’ 93 Indeed, Higgins J characterized the Intellectual Property Power as akin to the Marriage Power and suggested that ‘Parliament could prescribe what unions are to be regarded as marriages’.
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