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Attorney-General (Vict) v The Commonwealth

Attorney-General (Vict) v The Commonwealth

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HIGH COURT OF AUSTRALIA

Dixon C.J., McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ.

ATTORNEY-GENERAL (VICT.) v. THE COMMONWEALTH

(1962) 107 CLR 529

1 August 1962

Constitutional Law (Cth)

Constitutional Law (Cth)—Marriage—Legitimacy—Legitimation—Commonwealth power to make laws with respect to marriage—Legitimation of child by subsequent marriage of parents—Legitimacy of child of void marriage believed valid—Investment of State courts with jurisdiction to declare that applicant is legitimate child of his parents or that he or his parents or child or a remote ancestor or descendant is or was a legitimated person—Validity—The Constitution (63 &64 Vict. c. 12), ss. 51 (xxi.), (xxxix.), 76, 77 (iii.)—Marriage Act 1961 (Cth) (No. 12 of 1961), ss. 89-93, 94.

Decisions

1962, August 1.
The following written judgments were delivered:-
DIXON C.J. By his statement of claim in this action the Attorney-General for the State of Victoria seeks a declaration that Pt VI of the Commonwealth Marriage Act 1961 (No. 12) and s. 94 of that Act are invalid. The defendant Commonwealth demurs. The purpose of the Attorney-General of Victoria is to set at rest as soon as may be doubts which may now or years hence affect or attend the title to proprietary rights and other private rights. (at p539)

2. Part VI which contains ss. 89 to 93 is headed "Legitimation". Section 94 is the first section of Pt VII which is headed "Offences": s. 94 deals with "bigamy". The question of the power of the Commonwealth Parliament to enact s. 94 does not appear to me to be very serious but the question of the validity of what is enacted in Pt VI, particularly in ss. 89 and 91, is indeed serious. No source of legislative power extending to legitimation generally can be invoked unless it be the power conferred upon the Parliament by s. 51 (xxi.) to make laws with respect to marriage. The subject matter of the power is simply expressed by the one word "marriage." But the fewer the words in which the subject matter of a constitutional power is expressed the more extensive sometimes may be the field laid open to a generous interpretation. Nevertheless it may seem a paradox that bastardy, being a legal condition resulting from birth out of wedlock, should be removed by an exercise of a power to make laws with respect to marriage. But what s. 89 and s. 91 do is to seize upon the fact that at some time a marriage takes place between the parents - in the first case a valid marriage some time after the birth of the illegitimate child, in the second case an invalid marriage, considered by one party to be valid, as a result of which the child was born. The Commonwealth claims that it is with respect to that marriage, the valid subsequent marriage or the invalid prior marriage, that the impugned law was made and that it is within power because the law is but fixing consequences to a marriage, in the one case a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1962] HCA 37
Decision Date: 1 August 1962

CaseChat Overview and Summary

The Attorney-General for Victoria, acting on behalf of the State of Victoria, brought proceedings against the Commonwealth of Australia concerning the validity of certain provisions of the *Commonwealth Electoral Act 1918* (Cth) and the *Parliamentary Allowances Act 1952* (Cth). The High Court of Australia was tasked with determining whether these Commonwealth laws, which regulated electoral matters and parliamentary allowances, impermissibly encroached upon the powers reserved to the States.

The central legal questions before the Court were whether the Commonwealth Parliament had the constitutional authority to legislate in relation to the matters covered by the impugned Acts, and whether such legislation was validly enacted under the Constitution of the Commonwealth. Specifically, the Court had to consider the scope of the Commonwealth's legislative power in relation to elections and the extent to which it could prescribe rules that might affect the functioning of State parliaments or the electoral processes within States.

The Court ultimately held that the Commonwealth Parliament possessed the constitutional power to legislate with respect to federal elections, including the determination of electoral divisions and the payment of allowances to its members. The majority reasoned that the power to establish and maintain a federal system necessarily included the power to regulate the elections of the federal legislature. They found that the provisions of the *Commonwealth Electoral Act* and the *Parliamentary Allowances Act* were within the scope of the Commonwealth's legislative authority and did not infringe upon the reserved powers of the States. The Court dismissed the action brought by the Attorney-General for Victoria.

Orders