Gazzo v Comptroller of Stamps

Gazzo v Comptroller of Stamps - [1981] HCA 73 - HCA 1977 case summary — Zoe

[88]

The crucial question, however, is whether the legislation creates, defines or declares rights or duties that arise out of, or have a close connexion with, the marriage relationship. If not, the law cannot be said to be one with respect to marriage. This was, I think, recognized by the majority of the Court in Russell v. Russell [75] . Similarly in Dowal v. Murray, the judgments emphasized that the right defined by s. 61 (4) arose out, of or was intimately concerned with, the marriage relation: see per Stephen J. [76] per Jacobs J. [77] and in my own judgment [78] . He then said: I adhere to the view that I expressed in Reg. v. Demack; Ex parte Plummer [79] , that an enactment is not a law with respect to marriage simply because it has some operation with respect to the custody of a child of the marriage, or, I would add, with respect to married persons. He concluded by saying: The question whether a law is one with respect to marriage is one of degree. The answer to it depends on the closeness of the connexion between the law and the marriage relationship. Barwick C.J. [80] agreed generally with Gibbs J.'s reasons but added that he was of the view that the decision in Russell v. Russell [81] should be strictly confined and not used as a base for any extension of what is comprised within the concept of a law with respect to marriage. Wilson J. was of a similar view. He said [82] that the decision in Russell v. Russell demonstrated "the necessity of a close relationship between the law and the marriage relationship" for such a law to be within s. 51 (xxi). In my opinion the observations of Gibbs J. which I have quoted above appear to be equally applicable to the divorce power. 1. (1980) 146 C.L.R., at pp. 456-457. 2. (1976) 134 C.L.R., at pp. 524, 538, 552-553. 3. (1978) 143 C.L.R., at p. 423. 4. (1978) 143 C.L.R., at pp. 426-427. 5. (1978) 143 C.L.R., at p. 417. 6. (1977) 137 C.L.R., at p. 46. 7. (1980) 146 C.L.R., at pp. 450-451. 8. (1976) 134 C.L.R. 495. 9. (1980) 146 C.L.R., at p. 487.

[92]

The authorities to which I have referred establish that in some circumstances the Family Court has power to make an order or injunction which is directed to a third party or which will indirectly affect the position of a third party. They do not establish that any such order may be made if its effect will be to deprive a third party of an existing right or to impose on a third party a duty which the party would not otherwise be liable to perform. The general words of ss. 80 and 114 must be understood in the context of the Act, which confers jurisdiction on the Family Court in matrimonial causes and associated matters, and in that context it would be unreasonable to impute to the Parliament an intention to give power to the Family Court to extinguish the rights, and enlarge the obligations, of third parties, in the absence of clear and unambiguous words. It can safely be assumed that the Parliament intended that the powers of the Family Court should be wide enough to prevent either of the parties to a marriage from evading his or her obligations to the other party, but it does not follow that the Parliament intended that the legitimate interests of third parties should be subordinated to the interests of a party to a marriage, or that the Family Court should be able to make orders that would operate to the detriment of third parties. There is nothing in the words of the sections that suggests that the Family Court is intended to have power to defeat or prejudice the rights, or nullify the powers, of third parties, or to require them to perform duties which they were not previously liable to perform. It is one thing to order a party to a marriage to do whatever is within his power to comply with an order of the court, even if what he does may have some effect on the position of third parties, but it is quite another to order third parties to do what they are not legally bound to do. If the sections had been intended to prejudice the interests of third parties in this way, it would Have been necessary to consider their constitutional validity. What Gibbs J. there said is expressed in terms of the proper construction of the Family Law Act but the constitutional problems of any wider construction are obvious. 1. (1981) 148 C.L.R., at p. 354.

[98]

The argument for the wife was that the legislative powers given by pars. (xxi) and (xxii) were wide and plenary. No doubt this is so but the question remains whether they are wide enough to support the specific provision in s. 90 now in question. The passages which I have quoted above from the judgment of Gibbs J. in In re Lambert; Ex parte Plummer demonstrate both the positive and the negative aspects of the extent of the power with respect to marriage, the former requiring the close connexion with the marriage relationship and the latter demonstrating that it is not enough that the law has some operation on children of a marriage or on married persons. The present section seems to me to have no close or relevant connexion with marriage. I have already given my reasons for rejecting the contention that there is a sufficient connexion by reason of its being a prerequisite to the operation of s. 90. The present case is one of divorce. The power to make orders altering the property interests of the parties is given by sub-s. (1) of s. 79. That power arises only in "proceedings with respect to the property of the parties to a marriage or either of them". Proceedings in this context refers to proceedings in which the Family Court is exercising jurisdiction under s. 39 which itself requires that there be a "matrimonial cause" as defined (see the definitions of proceedings and court in s. 4 (1)). The relevant parts of that definition are pars. (c) and (ca). After Russell v. Russell [8] it is clear that par. (c) is restricted in its operation to proceedings of the type there mentioned which are ancillary to proceedings for principal relief, that is, relief within pars. (a) and (b) of the definition of matrimonial cause. Paragraph (ca) by its express words is similarly restricted. Compare the position under s. 86 of the Matrimonial Causes Act as explained by Kitto J. in Lansell v. Lansell [9] where he treats that section as an exercise of the divorce power; see also per Taylor J. [10] who suggests that it may also be supported under the marriage power; and also per Mason J. in Russell v. Russell [11] . In both the Matrimonial Causes Act and in the Family Law Act the power to alter property interests was limited to proceedings in which there was a claim for "principal relief". Thus the divorce power requires examination. There is no doubt power in the Family Court upon the dissolution of a marriage to order alterations to the property interests of the parties. However the question is whether the divorce power goes beyond giving the Family Court jurisdiction to order one party to transfer property, or an interest in property, to the other (Lansell v. Lansell and Russell v. Russell).

[140]

Section 20 provided: If a copy of the notification in the Gazette, certified under the hand of the Attorney-General, is lodged with the Registrar-General or Registrar of Titles or other proper officer of the State or part of the Commonwealth in which the land is situated, he shall register it in the register and in the manner as nearly as may be in which dealings with land are registered, and shall deal with and give effect to the notification as if it were a grant or conveyance or memorandum or instrument of transfer of the land to the Commonwealth duly executed under the laws in force in that State or part of the Commonwealth. In their joint judgment Knox C.J. and Starke J. said [15] : The power conferred by s. 51 (xxxi.) and (xxxix.) of the Constitution is to make laws with respect to the acquisition by the Commonwealth of property, including land, and with respect to matters incidental thereto; and the question is whether a provision entitling the Commonwealth to insist on the registration under the Real Property Act of its title to land acquired under the Lands Acquisition Act, without complying with the conditions imposed by State law on such registration, is incidental to the complete exercise of the power of acquisition. Effective acquisition of (inter alia) land by the Commonwealth is the object to be attained, and the power is completely exercised by enabling the Commonwealth to vest absolutely in itself the land which it desires to acquire. The object is attained by the method provided by s. 16 of the Act, namely, that upon the publication of a notification of acquisition the land described therein shall "by force of this Act be vested in the Commonwealth". This section, the validity of which is not, and cannot be, disputed, confers on the Commonwealth a statutory title to the land required which must, by force of s. 109 of the Constitution and of s. V. of the covering Act, be paramount to any title dependent on a law of the State. The Commonwealth acquires the land and a statutory title to it under a law of the Commonwealth independently of any State law. But it does not follow that the Commonwealth Parliament is entitled to insist upon the State registration of its title to the land acquired unless upon compliance by the Commonwealth with the conditions imposed by State law. The provisions of the Real Property Act 1900 which stand in the way of the Commonwealth in this case in no way prevent or interfere with the acquisition by the Commonwealth of any land in New South Wales: they do no more than prescribe the conditions on which the State will permit the registration of title to land; and in our opinion the Commonwealth, if it desires to obtain registration of its title under the Real Property Act, must comply with the conditions imposed by that Act. As our brothers Isaacs and Rich said, in Commonwealth v. New South Wales [16] , "if it" (i.e., the Commonwealth) "seeks to obtain the registration provided by the statute, it must take it on the terms of the Act which it invokes". Gavan Duffy J. agreed with that view. Isaacs J. said [17] : On this occasion a much more radical question was propounded, namely, whether the Registrar-General, as a State officer acting under and by virtue of the State enactment - the Real Property Act, - could be called upon to register any devolutions of title other than those effected as that Act requires, that is, by State Crown grant in the first instance, and then by the various instruments prescribed by the statute as the Registrar's authority to register the new proprietorships. This question, in my opinion, so presented, admits of no doubt. The Commonwealth Parliament has, by s. 20 of the Lands Acquisition Act 1906, purported to require the State Registrar to register a copy of the Governor-General's notification as if it were a grant or conveyance or memorandum or instrument of transfer duly executed under the laws in force in the State. Section 64 also declared that the acquisition under s. 85 of the Constitution shall for the purposes of the Act be deemed an acquisition and vesting under the Act. But as to this there is not even a declaration that any document is to be regarded as a grant, &c., as in s. 20, and I take this provision to be one for compensation in accordance with the Constitution, s. 85. In any case s. 20 of the Act, purporting to require the State officer to treat the copy notification as a State instrument, is invalid. It is, of course, not pretended that, unless expressly authorized, the Commonwealth Parliament can directly repeal or amend State legislation. Where competent, either by concurrent or exclusive powers, Commonwealth Acts repugnant to any State law prevail (see Attorney-General (Ontario) v. Attorney-General for the Dominion [18] ). Section 20, however, is really an amendment of the Real Property Acts of the States, and is a command to a State official as such in the performance of his State functions to disregard the conditions of his statutory authority and to act in accordance with Commonwealth directions. Higgins J. dissented on this point. 1. (1923) 33 C.L.R. 1. 2. (1923) 33 C.L.R., at pp. 27-28. 3. (1918) 25 C.L.R. 325, at p. 340. 4. (1923) 33 C.L.R., at pp. 53-54. 5. [1896] A.C. 348.

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