Honours Thesis - Elodie Cheesman.pdf

Whether the high court will interpret s 51xxi as

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Whether the High Court will interpret s 51(xxi) as encompassing the power to legislate for 178 Ibid, 490. See Pochi v Macphee (1982) 151 CLR 101, 109 (Gibbs CJ, Mason and Wilson JJ agreeing). 179 (1951) 83 CLR 1, 206 (McTiernan J). 180 Brock and Meagher, above n 14, 272. 181 Ibid.
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37 same-sex marriage is very much an open question, for in matters of constitutional interpretation, ‘much depends upon the particular question to be resolved and the concatenation of factors which may be relevant to it’. 182 More specifically, much depends on which interpretive approach(es) the judges choose to take, and how they weigh the attendant factors. This paper has considered originalist, non-originalist and middle-way approaches to constitutional interpretation. The literalist and intentionalist strands of originalism, focussed as they are on the common understanding of ‘marriage’ in 1900, would not construe s 51(xxi) as encompassing same-sex marriage. The converse is most likely true of a dynamic non-originalist approach, which aims to ensure that the Constitution accommodates contemporary community values and policy concerns. This paper has also demonstrated the potential for subversion; the ‘connotation and denotation’ approach may facilitate a non-originalist reading under the guise of originalism. However, it is not advocated because it is philosophically problematic and non- prescriptive. The Marriage Power is uniquely complex, because same-sex marriage was a completely unforeseen concept at the time of constitutional enactment. Consequently, to apotheosize original intent would be absurd. It thus seems inevitable that the Court will give credence to the modern context. However, non-originalism entails the theoretical danger of radical readings, although a close analysis of even Kirby J’s dynamic approach shows that historical context and the Framers’ intentions will rarely (if ever) be ignored as completely irrelevant. The problem of interpreting s 51(xxi) is thus best resolved by an approach which invokes both originalism and non-originalism. Taking a step back, one can conflate the ‘legal term of art’, ‘context-dependent criteria’ and ‘non-literal purposive’ interpretive approaches. All consider original intent by construing s 51(xxi), in its generality and evolving subject matter, as intended to be dependent on social understandings. They then invoke factors such as domestic legislation, international values, foreign law and public opinion to flesh out ‘contemporary community values’. Provided that they acknowledge the necessary invocation of judicial choice (in the interest of transparency), 182 The Hon Sir Anthony Mason, ‘Constitutional Interpretation: Some Thoughts’ (1998) 20 Adelaide Law Review 49, 49.
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38 this goes some way to ameliorating the raging tension between originalism’s anachronism, and non-originalism’s instability and seeming unboundedness.
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