98 When sitting as a member of the Full Court in Wagstaff v Wagstaff,[1] I made various observations about the proper approach to statutory construction. It us utile to set out here what I said there –
"First, as with all legislation, the primacy of the words used in the legislation itselfdetermines the proper construction of the legislation (Project Blue Sky and Alcan (NT) Alumina Pty Ltd). The context, the general purpose and the policy of the provisions of legislation are surer guides to meaning than is the topic with which a statutory provision is concerned (Project Blue Sky). Every word of a section of legislation must be construed so as to give meaning to the relevant provision (Commonwealth v Baume (1905) 2 CLR 405; and Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1. Accordingly, every word of every subparagraph of s65DAA(3), (4) and (5) must be construed. Context is critical (Project Blue Sky and Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2020 282 FCR 1)."
99 A point of construction emerged about the relevance of the use of the word "or" where twice appearing between subparagraphs 23B(1)(d)(ii), 23B(1)(d)(iii) and s 23B(1)(e). The word "or" did not appear between subparagraphs (a), (b), (c) and (d). The word "or" also did not appear between ss 23B(1)(d)(i) and (ii). It seemed to me that each circumstance set out in subparagraphs (a), (b), (c) and (e) were stand alone events. In other words, s 23B(1) rendered void a marriage purportedly entered into after the commencement of the Marriage Amendment Act 1985 where either party was, at the time of the purported marriage, lawfully married to another person.[2] It also rendered void a purported marriage where the parties were in a prohibited relationship.[3] It also rendered void a purported marriage which was not a void marriage by force of s48 of the Marriage Act.[4] It also rendered void a purported marriage where either of the parties was not of marriageable age.[5] In other words where any of the circumstances set out in s 23B(1)(a), (b), (c) or (e) were enlivened, the purported marriage was void. So far as s 23B(1)(d) was concerned, it introduced the phenomenon of either party's consent not being real consent because –
- (a) the consent was obtained by fraud;
- (b) one party was mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
- (c) one party did not understand the nature and effect of the marriage ceremony.
