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20 July 2010
In a recent appeal(1) the High Court was required to construe the word 'spouses' in the context of the Adoption Act 1955.
The parties had been in a settled, de facto relationship for 10 years. It began when the child in question, who had been conceived through a sperm donor programme, was 18 months old. The couple sought an adoption order so that they would both be the legal parents of the child, whom they had parented for most of his life. If the application had been made by the non-parent alone, the effect of the order would have been to terminate the mother's legal status as a parent (as the effect of an adoption order is to displace existing parental legal status), so the application was necessarily made jointly.
The potential impediment to the joint application was Section 3 of the act, which provides that "[a]n adoption order may be made on the application of two spouses jointly in respect of a child". The issue for the court was whether the term 'spouses' refers only to married couples or extends to a couple of opposite sexes who are unmarried but in a stable and committed relationship. The court, although aware of the potential implications of the outcome for same-sex couples, declined to frame the question more widely.
The question of interpretation was influenced by other statutory provisions prohibiting unjustified discrimination. The attorney general conceded that the law discriminated without logic or justification against de facto couples, such as the applicants. The court had to decide whether Section 6 of the Bill of Rights Act 1990 permitted the more expansive meaning of the word 'spouses'.
The court elected to follow the analytical approach to interpreting legislation in light of the Bill of Rights Act, as adopted by a majority of the Supreme Court in Hansen v R.(2) In summary, this involves:
If the apparent inconsistency is not justified, the court should consider whether it is reasonably possible to give the word a meaning that is consistent - or at least less inconsistent - with the right. If so, that meaning should be adopted; otherwise, Parliament's intended meaning should be adopted.
In the present case, the court found as follows:
The remaining issues involved reconciling the inherent tension between Section 6 of the act - which provides that if an enactment can be given a meaning which is consistent with protected rights, such a meaning should be preferred - and the provision in Section 4 that Parliament is supreme and is permitted to enact legislation which amounts to an unreasonable limit on a protected freedom. The court held that there were real limits on the use of Section 6 to remove inconsistency: although the alternative meaning need not have been the meaning intended by the original legislators, it must still be a meaning that is consistent with the purposes of the act and is available on the basis of the text without undue strain.
The court considered that the purpose of the provision was to ensure that the joint applicants were a man and a woman and that they were in a committed relationship. Extending the term 'spouses' to include people in a de facto relationship, such as the applicants, would not be inconsistent with the purpose of the act; nor was a de facto relationship inconsistent with the term 'spouse' in light of numerous expanded statutory definitions to that effect.
Before concluding its decision, the court had to deal with a contrary argument based on subsequent parliamentary action (or inaction). It considered the following points:
The court concluded that the legislature's decision neither to give the term 'spouse' an extended meaning nor to clarify or restate a more limited meaning meant that no safe conclusion could be drawn for the purposes of resolving the tensions in the Bill of Rights Act between Section 4 (and the issue of parliamentary sovereignty) and Section 6 (and the preference for consistent construction). Parliament must have been aware of the inconsistency with the act. The conclusion that it chose not to close the door on the use of Section 6 by express words had as much merit as a conclusion that its inaction signalled the opposite intention.
The court held that an alternative meaning had been found. As it was more consistent with the Bill of Rights Act and was not inconsistent with the text and purpose of the Adoption Act 1955, it should prevail. Accordingly, the term 'spouses' in Section 3 of the Adoption Act includes a man and a woman who are unmarried, but in a stable and committed relationship.
The case illustrates the complexities involved in resolving the tensions in the statutory construction of a 35-year-old piece of social legislation in light of the Bill of Rights Act and a pattern of subsequent parliamentary conduct consisting essentially of inaction in respect of the provision in question.
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