Connolly v Connolly

[1966] HCA 47

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Taylor, Menzies and Owen JJ.

CONNOLLY v. CONNOLLY

(1966) 115 CLR 166

18 August 1966

Constitutional Law (Cth)

Constitutional Law (Cth)—Marriage—Supreme Court of State—Invested with jurisdiction to make declarations as to legitimacy—Validity—The Constitution (63 &64 Vict. c. 12), s. 77 (iii.)—Marriage Act 1961 (Cth), s. 92.*

Decision

THE COURT delivered the following written judgment:-
Upon proceedings by a husband in the Supreme Court of New South Wales, which were in substance an application pursuant to s. 92 (1) (b) of the Marriage Act 1961 (Cth) for a declaration that a child was a legitimated person, counsel for the wife - who was the respondent to the application - challenged the validity of s. 92 of the Marriage Act. A question as to the limitation inter se of the constitutional powers of the Commonwealth and the State having arisen, the cause was removed to this Court by virtue of the Judiciary Act 1903-1960 (Cth), s. 40A. (at p168)

2. The argument advanced on behalf of the respondent was that s. 92 is so widely expressed that it authorizes applications in matters not arising under any law made by the Parliament, with the consequence that it is not a law investing the Supreme Court of a State with federal jurisdiction in a matter within s. 76 (ii.) of the Constitution. It was further argued that s. 15A of the Acts Interpretation Act (Cth) was not sufficient warrant for construing s. 92 as limited to applications for declarations of legitimacy by virtue of laws made by the Parliament. (at p168)

3. The language of s. 92 is general and, looked at by itself, it is true that it would authorize an application not involving a matter arising under some law of the Parliament. The section, however, cannot be looked at by itself; it must be understood in its context as a section in Pt VI of the Marriage Act and it must be read and construed subject to the Constitution and so not to exceed the legislative power of the Commonwealth (Acts Interpretation Act, s. 15A). So read, construed and understood, we have no doubt that s. 92 of the Marriage Act is within the authority conferred by the joint operation of s. 76 (ii.) and s. 77 (iii.) of the Constitution and the attack upon its validity fails. (at p168)

4. Counsel for the respondent did rely upon certain passages in the judgments of Dixon C.J. and Windeyer J. in Attorney-General (Vict.) v. The Commonwealth (1962) 107 CLR 529, at pp 547, 599, 600 , and particularly upon the observation of Windeyer J. (1962) 107 CLR, at p 600 that s. 92 is of doubtful validity. These passages occur, however, in judgments dissenting as to the validity of s. 89 and, in the case of the Chief Justice, dissenting as to the validity of s. 91. We consider that the doubts expressed have no relation to s. 92 construed with the limitation which we think does arise from its association with ss. 89 and 91 as valid laws of the Parliament and from s. 15A of the Acts Interpretation Act. (at p168)

5. The applicant's application depended upon s. 89 of the Marriage Act - that is, legitimation by virtue of the subsequent marriage of the child's parents. It follows that s. 92 does validly authorize the Supreme Court of New South Wales to hear and determine the application. (at p169)

Orders

This cause having been removed to this Court by the operation of s. 40A of the Judiciary Act 1903-1960 order as follows: -

(1) Declare that s. 92 of the Marriage Act 1961 is a valid law of the Commonwealth.

(2) Further declare that the order sought by the applicant, James Thomas Connolly, is an order that could be made by the Supreme Court of New South Wales under the said s. 92.

(3) Order pursuant to s. 45 of the Judiciary Act 1903-1960 that the cause be remitted to the Supreme Court of New South Wales for hearing and determination.

(4) Order that each party should bear his or her own costs of the proceedings in this Court.