No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 January 2025
One of the more obvious characteristics of Australian federalism hitherto has been the marked reluctance of the Commonwealth to utilize its legislative powers to the full. The only two areas where the limits have been explored with any determination are taxation and industrial disputes. The phenomenon is no doubt a complex one, not to be explained solely or even primarily by reference to the structure of the Constitution or its interpretation by the High Court. Nevertheless both must have a bearing upon it.
It would be, for instance, hard to doubt that the Commonwealth has been made lazy in its legislative approach to government by the refusal of the High Court to imply any strict demarcation between legislative and executive functions, and by the Court’s generous interpretation of the scope of the power to attach conditions to money grants to the States under section 96. Similarly, growth of the trade and commerce power manifestly has been inhibited by the scope given to section 92, in marked contrast to the lack of interest shown by the Court in giving substantial content to the prohibition on preference in section 99 in relation to revenue laws.
1 The first Bankruptcy Act of the Commonwealth was passed in 1924. For some of the problems arising from its reliance on existing State machinery see Le Mesurier v. Connor (1929) 42 C.L.R. 481; Bond v. George A. Bond & Co. Ltd. (1930) 44 C.L.R. 11. Some might say that properly comprehensive action was delayed until the present Act, which almost wholly repealed previous legislation, was passed in 1966.
2 The Commonwealth legislation in the field before 1959 is summarized in Cowen, Z. and Mendes da Costa, D., Matrimonial Causes Jurisdiction (1961) 2–3Google Scholar, 4-8.
3 Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 C.L.R. 129.
4 lnfra, n. 99. See also Australian National Airways Pty. Ltd. v. Commonwealth (1945) 71 C.L.R. 29, 85; Lamshed v. Lake (1958) 99 C.L.R. 132, 144; Spratt v. Hermes (1965) 114 C.L.R. 226, 272; Damjanovic & Sons Pty. Ltd. v. Commonwealth (1968) 42 A.L.J.R. 102, 108.
5 Quick, J. and Garran, R. R., Annotated Constitution of the Australian Commonwealth (1901) 610Google Scholar. See Official Record of the Debates of the Australasian Federal Convention, Second Session, Sydney (1897) 1077-1082 (hereinafter referred to as Debates).
6 Debates 1082.
7 Debates 1081 (Sir John Downer, South Australia). Sir John thpught that the “highly proper power would” “probably be exercised at the earliest possible ti;toment”. On this point he was, of course, sadly astray.
8 Debates 1082-1085.
9 Debates 1084-1085 (Sir John Downer).
10 Debates 1085 (Edmund Barton New South Wales).
11 Quick, J. and Garran, R. R., Annotated Constitution of the Australian Commonwealth (1901) 610Google Scholar.
12 In certain cases the Matrimonial Causes Act extends to illegitimate children wtro come within the definition of “children of the marriage” in s. 6 byvirtue of havil1$ been accepted into the family by the parties to the marriage.
13 23 (2) invests the Supreme Court of each State with federal jurisdiction, and confers jurisdiction on the Supreme Court of each Territory to which the Act applies to hear and determine matrimonial causes instituted under the Act. This is an exercise of the Commonwealth's power in s. 77(iii) of the Constitution to make laws investing any State court with federal jurisdiction in respect inter alia of matters arising under any law made by the Parliament.
14 S. 5 says that “matrimonial cause” means
(a) proceedingS for.a.degree of—
(i) dissolution ofmarriage;
(ii) nullity of marriage;
(iii) judicial separation;
(iv) restitution of conjugal rights;
(v) jactitation ofmarriage;
(b) proceedings for a declaration of the validity of the dissolution. or annulment of a marriage by decree or otherwise …;
(c) proceeding with respect to the maintenance of a party to the ceedings, settlemellts, damages in respect of adultery, the custody or guardianship of infant children of the marriage, or the maintenance, welfare, advancement or education of children of the marriage, being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in either of the last two preceding paragraphs, fiicluding proceedings of such a kind pending at, or completed before, the commencement of this Act;
(d) … ,
(e) … .
15 Lansell v. Lansell (1964) 110 C.L.R. 353.
16 S. 89(1)
17 S. 89(2).
18 See generally Sackyille, R., “The Emerging Australian Law. of Matrimonial Property” (1970) 7 M.D.L.R: 353Google Scholar.
19 Marriage (Property) Act, 1962 (Vic.), inserting a new s. 161 into the Marriage Act, 1958 (Vic.).
20 Matrimonial Causes Act, 1959-1966 (Cth.), s. 86.
21 Denniston v. Denniston [1970] V.R. 535 (Menhennitt J.). Infra n. 127.
22 Sackville, R. and Lanteri, A., “The Disabilities of Illegitimate. Children in Australia: "A Preliminary Analysis”, (1970) 44 A.L.I. 5Google Scholar, 51, 58-61.
23 An example in the family law field is the uniform maintenance legislation passed as a result of deliberations by the Standing Committee of Attofneys-General see now Maintenance Act, 1964 (N.S.W.); Maintenance Act, 1965 (Vic.); Maintenance Act, 1965 (Qld); Maintenance Act, 1926-1965 (S.A.); Married Persons and Children (Summary Relief) Act, 1965-1967 (W.A.); Maintenance Act, 1967 (Tas.); Maintenance Ordinance, 1968 (A.C.T.).
24 Some of thedifferences in the terms of the uniform adoption legislation are described in hambly, A. D., “Adoption of Children: An Appraisal of the Uniform Acts” (1968) 8 West. Aust. L. Rev. 281Google Scholar. The uniform.maintenance legislation varies in important respects, South Australia being considerably in,ore adventurous than the other States. R. Sackville and A. Lanteri, supra n. 22 at 51-56.
25 Matrimonial Causes Act, 1959-1966 (Cth), s. 8(2), provides that where a matrimonial cause has been instituted then whether or not that matrimonial“‘ cause has been completed, proceedings for any relief or order of a kind that cquld besought” under the Act in proceedings in relation to that matrimonial cause shall not be instituted after the commencement.of the Act except under the Act see Horne v. Horne (1963) 63 S.R. (N.S.W.) 121; (1962) 3 F.L.R. 381 (N.S.W. Court of appeal); Barnes v.Barnes [1965] V.R. 762; (1965) 7 F.L.R. 380 (Sup. Ct. Vic.). S. 8(3)-(7) makes detailed provision as to the effect of the institution of a matrimonial cause on State proceedings concerning custody, maintenance or separation orders.
26 See, e.g., Shepherd v. Shepherd [1968] 1 N.S.W.R. 64. The federal court has power under Matrimonial-causes Act, 1959-1966 (Cth), s. 124, to issue an injunction whenever it is “just and convenient” to do so.
27 A further difficulty created by the Matrimonial Causes Act arises in relation to enforcement and variation of maintenance orders. S. 105 allows a federal maintenance award to be registered in a court of summary jurisdiction of a State. The order so registered may be enforced as if it were a similar order for maintenance made by the court of summary jurisdiction. Thus the summary machinery of the State courts may be utilised for enforcement purposes.But only the Supreme Court which made the original order has power to vary or discharge it. Therefore any application for variation no matter how trivial, must be made at Supreme Court level, a restriction that ereates considerable inconvenience and unnecessary expense. This anomaly too is attributable, at least in part, to the federal-State dichotomy.
28 Attorney-General for Victoria v. Commonwealth (1962) 107 C.L.R. 529.
29 (1962)107 C:L.R.529,537,554,564,587-588.
30 Cf. Maintenance Act, 1967 (Tas.), s. 16.
31 Obviously the Commonwealth haspowers other than those in s. 51(xxi) and (xxii) which can be used to affect family law For example the Territories power (s.122) gives virtually plenary powers to pass legisltion for the Territories. Parts of the Matrimonial Causes. Act depended upon the powers. in s. 51 (XXV). (recognition throghput the Commonwealth of judicial proceedings, etc., of the States) and s. 77(iii) (investment of State courts with federal jurisdiction). See Cowen, Z.. and Mendes da Costa, D. Matrimonial Causes Jurisdiction (1961) 4Google Scholar, Ch. 2. 1 The pensions and social we1fare Payments powers of s. 51 (xxiii) and . (xxiiiA) should also be borne in mind. Nevertheless the basic power of the Commonwealth to regulate family law finds its source in s. 51 (xXi) and (xxii).
32 Windeyer J. himself seems to acknowledge this, at least to some extent: (1962) 107 C.L.R. 529, 594-595. Undoubtedly, an historical approach may be a valid technique of constitutional adjudication in certain circumstances. But there are dangers in over-emphasizing historical considerations. In discussing the Commonwealth's power to affect the property rights of spouses, Windeyer J. chooses not to consider the very real issue of whether the Commonwealth may take over the entire field of matrimonial property. Rather, he contends that the question may be brought “nearer home” by asking whether “the Commonwealth Parliament could re-establish dower”: (1962) 107 C.L.R. 529, 581.
33 Quick, J. and Garran, R. R., Annotated Constitution of the Australian Commonwealth (1901), 608Google Scholar.
34 (1962) 107 C.L.R. 529, 543.
35 Moore, W. H., Constitution of the Commonwealth of Australia (2 ed. 1910) 474–475Google Scholar.
36 ( 1962) 107 C.L.R. 529, 539.
37 Cowen, Z. “Legitimacy, Legitimation and Bigamy” (1963) 36 A.L.J. 239Google Scholar, 241.
38 The majority consisted of Kitto, Taylor, Menzies and Owen JJ. Dixon C.J., McTiernan and Windeyer JJ dissented S. 89(1) provides-that a child, whether born before or after the commencement of the Act, whose parents were not married to each other at the time of his birth but have subsequently married each other, whether before or after the commencement of the Act, is, by virtue of the marriage, for all purposes the legitimate child of his parents as from his birth or the commencement of the Act, whichever is the later. S. 89 (3) confines s. 89 (1) to a child whose father was domiciled in Australia at the time of the marriage, or whose parents married in Australia. S. 90(1) provides that where the parents of a child born illegitimate have married each other, the marriage took place outside Australia, the father was not domiciled in Australia at the time of the marriage, and the fathers lex domicilii at the time of the marriage regarded the child as legitimated by virtue of the marriage the child is for all purposes the legitimate child of his parents as from the time of the marriage or the commencement of the Act, whichever is the later.
39 Only Dixon. C.J. d,issentech S. 91 ( 1) provides that a child of a void marriage shall be deemed for all purposes to be the legitimate child of his parents as from his birth or the commencement of the Act, whichever is the later, if, at the time of the intercourse that resulted in the birth of the child or the time when the ceremony of marriage took place, whichever was the later, either party to the marriage believed on reasonable grounds that the marriage was valid. S. 91 (2) confines s. 91 (1) to the case where one of the parents of the child was domiciled in Australia at the time of the birth or, having died before that time, was domiciled in Australia immediately before his death.
40 Dixon C.J. was the only judge to hold SSe 89, 90 and 91 all invalid.
41 (1962) 107 C:L.R. 529,544.
42 Id., 543.
43 Id., 597. Windeyer J. agreed with the Chief Justice that ss. 89 and 90 were invalid yet he was prepared to uphold s. 91. As Professor Cowen points out, it is not at all easy to reconcile Windeyer J.'s views on ss. 89 and 90 with his decision on s. 91. Cowen, Z., “Legitimacy, Legitimation and Marriage” (1963) 36 A.L.J. 239Google Scholar, 246-247.
44 (1962) 107 C.L.R. 529, 544.
45 For other instances of State rules affected see id., 545-546.
46 According McTiernan J., id., 549, the real object of SS 89 and 90 was: … to remove from the child … all the disabilities under which a bastard labours and to put him before the law as a legitimate child: the result at which these sections aim is to give the child new juristic rights, those appertaining to the status of legitimacy… . In my opinion ss. 89 nd 90 are really laws of legitimacy.
47 This is Dixon C.J.'s characterization of the Commonwealth's argument:(1962) 107 C.L.R. 529, 547.
48 Id.,547.
49 Id., 552-553.
50 (1840) 7 Cl. & F. 895, 7 B.R. 1308.
51 (1962) 107 C.L.R. 529, 567-568.
52 Id., 570.
53 Id., 574.
54 Id., 554.
55 Id., 570.
56 Id., 573-574.
57 Id., 602.
58 Id., 574.
59 Id., 602-603.
60 Id., 555-556,571,574,602-603.
61 Id., 555-556,571,574,602-603.
62 Id., 547, 551, 557, 559-560, 575-576, 600, 601.
63 Id., 557.
64 The Births, Deaths and Marriages Registration Act, 1966 (S.A.), Pt. IX defines “legitimated persons” and specifies the extent of their succession rights on an intestacy and the effect in relation to them of certain dispositions of property. The Act does not appear actually to restrict the rights of legitimated persons more severely than those of persons born in wedlock. Cf. s. 52(2) (d) Administration and Probate Act, 1958 (Vic.), as amended in 1967, which includes persons legitimated under federal law within the category of legitimate persons for the purposes of the law of intestate succession.
65 S. 91 (4) of the Marriage Act similarly purports to qualify the legitimacy provisions of s. 91 (1).
66 (1962) 107 C.L.R. 529, 536 (argument of Commonwealth), 581 (Windeyer J.).
67 Id., 560.
68 Id., 572. Windeyer J., at 580, expressed the same opinion.
69 Id., 539-540.
70 Supra, n. 33.
71 (1962) 107 C.L.R. 529, 602.
72 Id., 560-561.
73 see In re Marriage Legislation in Canada [1912] A.C. 880.
74 [1928] 4 D.L.R. 161.
75 Cf. Matrimonial Causes Act, 1959-1966 (Cth), s. 55. S. 55(1) provides that while a decree of judicial separation is in operation, either party to the marriage may bring proceedings in contract or in tort against the other party. S. 55 (2) provides that where a party to a marriage dies intestate as to any property while a decree of judicial separation is in operation, that property shall devolve as if that party had survived the other party to the marriage. The validity of s. 55 has not as yet been tested in judicial proceedings.
76 (1962) 107 C.L.R. 529, 572.
77 Id., 554.
78 Ibid.
79 (1962) 107 C.L.R. 529, 580.
80 Id., 581.
81 Id., 589.
82 Id., 602.
83 “Legitimacy, Legitimation and Bigamy” (1963) 36 A.L.J. 239, 247.
84 (1962) 107 C.L.R. 529, 582.
85 Ibid.
86 (1920) 28 C.L.R. 129.
87 (1964) 110 C.L.R. 353, Kitto Taylor, Menzies. Windeyer and Owen JJ.
88 S. 86( 1) is as follows.:
The court may, in proceedings under this Act, by order require the parties to the marriage or either of them, to make, for the benefit of all or any of the parties to, and the children of, the marriage, such settlement of property to which the parties are, or either of them is, entitled (whether in possession or reversion) as the court considers just and equitable in the circumstances of the case.
89 (1967) 116 C.L.R. 366.
90 See generally Sackville, R., “The Emerging Australian Law of Matrimonial Property” (1970) 7 M.D.L.R. 353Google Scholar, 373-379.
91 Although the parties were then divorced, it is convenient to refer to them as “wife” and “husband”.
92 [1963] V.R. 102; (1962) 4 F.L.R. 409.
93 S. 86(2) of the Matrimonial Causes Act now contains a similar power, although it seems to be redundant in light of the interpretation put upon s. 86(1):Dewar v. Dewar (1960) 106 C.L.R. 170 (dealing with similar Queensland legislation); Miller v. Miller (1969) 14 F.L.R. 69 (N.S.W. Court of Appeal.
94 (1964) 110 C.L.R. 353, 359.
95 Supra, n. 14.
96 The reasons are explained in detail by Kitto I., (1964) 110 C.L.R. 353, 359-361.
97 (1964) 110 C.L.R. 353, 361-362.
98 (1964) 110 C.L.R. 353, 363.
99 (1964) 110 C.L.R. 353, 366. See also Menzies J., at 369. Windeyer J. at 310 quoted a passage from the judgment of Higgins J. in the Brewery Labels Case (1908) 6 C.L.R. 469, 610: “The usage of 1900 gives us the central type; it does not give us the circumference of the power”.
100 (1964) 110 C.L.R. 353,359.
101 Id., 368. Taylor J., who had taken a broad view of the marriage power in the Marriage Act case, said in Lansell v. Lansell at 367 that “[i]t is, of course, reasonably clear that the expression matrimonial cause cannot be taken to comprehend every application by one spouse for the settlement of some part of the property of the other”. He did not, however, elaborate.
102 Supra, D. 22.
103 Of course in 1900 there was legislation allowing the summary resolution of property disputes between spouses. This legislation was not included in the divorce legislation but in separate married women's property legislation, e.g., Married Women's Property Act, 1882 (Eng.), s. 17.
104 See Matrimonial Causes Act, 1959-1966 (Cth), SSe 53-57.
105 (1964) 110 C.L.R. 353, 367.
106 [1968] 3 N.S.W.R. 675.
107 Wallace A.C.l. dissented on another ground.
108 (1969) 14 F.L.R. 69.
109 The husband sought an order vesting in him the wife's interest in the former matrimonial home. The husband had remained in it and now occupied the home with his second wife. He brought the application under the federal s. 86(2) after the wife hadissued a summons in 1967 under s. 66G of the N.S.W. Conveyancing Act asking for appointment of the statutory trustees for sale. It is not clear why the husband chose to proceed under s. 86(2) of the federal Act rather than s. 86 (1).
110 (1962) 107 C.L.R. 529.
111 (1964) 110 C.L.R. 353.
112 (1966) 115 C.L.R. 166, Barwick C.J., McTiernan, Menzies, Taylor and Owen JJ.
113 [1965] N.S.W.R. 1606, holding that an inter se question was raised and removing the case to the High Court.
114 SSe 77(iii) and 76(ii) of the Constitution.
115 For further proceedings in the case see Connolly v. Connolly (No.2) [1967] 1 N.S.W.R. 8.
116 (1965) 113 C.L.R. 552, Barwick C.J., McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ.
117 (1965) 113 C.L.R. 552, 558-559, Barwick C.J.
118 id., 562. Italics added.
119 And see Harris v. Walker (1969) 14 F.L.R. 167 (Supreme Court of N.S.W.; McLelland C.J. in Eq.) holding that an order under s. 86 of the Commonwealth Matrimonial Causes Act creates an equitable interest enforceable against the estate of the spouse against whom the order was made.
120 (1965) 113 C.L.R. 552, 567.
121 Although not exclusively: Ex parte Wearne (1963) 63 S.R. (N:S.W.) 483; (1963) 4 F.L.R. 266. But in that case the inconsistency was so obvious as to give no basis for raising the inter se question. Cf. also James v. James and Denniston v. Denniston, infra nne 126, 127.
122 [1970] A.L.R. 139.
123 [1965] Tas. S.R. 17; (1965) 7 F.L.R. 209.
124 (1965) 7 F.L.R. 209, 216.
125 Id., 219.
126 On this James v. James (1964) 6 F.L.R. 214, and Cornehls v. Cornehls [1965] V.R. 788; (1965) 7 F.L.R. 373, are in opposition.
127 In Denniston v. Denniston [1970] V.R. 535, Menhennitt J. of the Supreme Court of Victoria has held that Marriage Act, 1958 (Vic.), s. 161, which includes a statutory presumption of joint tenancy of the matrimonial home, is displaced by the matrimonial property sections, 84, 86 and 87, of Commonwealth Matrimonial Causes Act.