LA1101 – Assessment Task 3: News Report: Changes to the Marriage Act 1961

This was my first assessment at JCU Cairns in 2016. As with any assessable essay I've written and published on Mr Lawyer Man, and within the study of law, you may find you agree or disagree with my proposition or point of view. The study of law requires an ability to exercise perspective. The ability to understand the strengths and weaknesses of arguments different to your helps find common ground upon which to resolve a dispute, or understand another perspective.

This essay assessment grade: High Distinction

Paul's LA1101 course grade: High Distinction

Changes to the Marriage Act 1961

News Article Citation

ABC News, Brandis: Marriage equality plebiscite to be taken to cabinet within 'months'.[1]

Summary of News Story

The Federal Government intends holding a non-binding plebiscite to ask constituents if Government should change the definition of marriage to allow same sex marriage. A plebiscite is an issue put to a vote (of the people) which does not affect the Constitution[2] and will be administered by the Australian Electoral Commission (AEC).

The Marriage Act 1961 (Cth) (‘Marriage Act’) currently defines marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.[3] The proposed change to include same sex unions and the process Federal Government is undertaking, raise issues of representative government and law making by parliament.

The Role of Law Making by Parliament and Constitutional Validity

Any change to the Marriage Act will involve the executive arm of government including Federal Parliament, Cabinet, the Attorney-General and the AEC. There have been many attempts to change this law[4] but this will be the first to involve the AEC.

Same-sex marriage is an issue that must be dealt with federally. The state based approach to authorising same-sex adoptions[5] could not be replicated for same-sex marriage because under s109 of the Constitution, any state law inconsistent with Commonwealth legislation, would see the Commonwealth prevail. This reality was applied by Sundberg J in his judgement of McBain.[6]

For additional clarity, it is only the Commonwealth which has power under s51 of the Constitution to make laws regarding marriage:

[s] 51(xxi) permits the Federal Parliament to make laws with respect to ‘marriage’ and s 51(xxii) with respect to ‘divorce and matrimonial causes, and in relation thereto, parental rights and the custody and guardianship of infants’.[7]

These powers have been described by Alastair Nicholson, a former Chief Justice of the Family Court, as ‘the “basic” national platform for family law’.[8] But for all the private members bills, first and second readings, a change to the definition of marriage remains unresolved. Why?

Representative Government

One role of representative government is to make law. As Edmund Burke[9] said over 200 years ago: ‘Your representative owes you not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.’[10]

Instead of outsourcing responsibility to a costly, taxpayer-funded plebiscite, Burkes view would be that federal parliamentarians as elected representatives should simply decide this issue. As it is unlikely voting along political party lines would achieve a change, allowing parliamentarians a conscience or free parliamentary vote is the path with most likelihood of success.

But the idea of a free parliamentary vote on this issue ignores a crucial, practical and political reality of the same-sex marriage debate in Australia.

The reality is same-sex marriage and a change to the definition of marriage is a ‘sensitive social issue.’[11] While Edmund Burke may be correct in essence, in reality it is too simple to suggest politicians will simply pass into law an Act that changes the classification of relationships, inside millions of homes in Australia. With this issue, politicians are clearly aware of exactly who they are - elected representatives. Politicians appear astute enough to understand that passing something into law that the silent majority[12] may not support, could see their votes plummet. If they follow this course, political careers, particularly in conservative voting electorates, may be terminated at the next election.

While popular opinion in the media claims a majority of Australians support marriage equality,[13] it is equally argued that the voices of the silent majority have not been heard. As previously identified by the Attorney-General Brandis, it is a ‘sensitive social issue.’[14]

Yet the current definition of marriage has been bluntly defended by former Prime Minister John Howard, who said ‘There is nothing homophobic about supporting traditional marriage. Everybody did in the parliament in 2004.’[15]

Another view of same-sex marriage is that held by Michael Kirby AC CMG:

Once Australia was, legally speaking, a very progressive Country - we were amongst the first in the world to give women the right to vote, to introduce compulsory arbitration in industrial matters, to adopt testator's family maintenance legislation, and so forth. Lately, we have become very timid. It is an interesting question as to why that should be so. Whatever the reason, we normally muddle our way to reaching the right conclusion.[16]

Without leadership from elected representatives, this debate seems set to continue.

Conclusion

A change in the definition of marriage within the Marriage Act 1961 would have far-reaching consequences within Australia. The process currently underway will likely contribute to the evolution and direction of representative law making in Australia.

If change is not successful, some other legal instrument might be needed to deliver ‘marriage equality’ for same-sex couples. The Constitution of Australia provides the federal government, and constituency, that option.[17]

Word count: 829 excluding footnotes.

[1] ABC News, Brandis: Marriage equality plebiscite to be taken to cabinet within 'months' (10 February 2016) <http://www.abc.net.au/am/content/2015/s4403584.htm>

[2] Australian Electoral Commission <http://www.aec.gov.au/elections/referendums/types.htm>.

[3] Marriage Act 1961 (Cth) s 5 (definition of ‘marriage’)

[4] Parliament of Australia <http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1516/Quick_Guides/SSMarriageBills>.

[5] The State of Victoria has passed the Adoption Amendment (Adoption by same-sex couples) Act 2015. This will come into effect no later than September 1, 2016.

[6] McBain v Victoria [2000] 99 FCR 116.

[7] (2015) 29 AJFL 65.

[8] A Nicholson, 'Australian Judicial Approaches to International Human Rights Conventions and "Family Law"', Speech delivered at the Miller Du Toit and Law Faculty of the University of Western Cape Family Law Conference, Cape Town, 26 March 2002, at (accessed 7 August 2015).

[9] Edmund Burke was an influential British Parliamentarian 1774-1794 <http://www.bbc.co.uk/history/historic_figures/burke_edmund.shtml>.

[10] Edmund Burke quotation contained in Same-sex marriage: Let's get it sorted and move on <http://www.abc.net.au/news/2016-03-09/barnes-let's-get-it-sorted-and-move-on/7231770>.

[11] Ibid n1.

[12] Voice of the 'silent majority, Jana Wendt <http://www.sbs.com.au/news/feature/voice-silent-majority>.

[13] The Drum (28 Jan 2016) <http://www.abc.net.au/news/2016-01-28/sparrow-the-ssm-plebiscite-isnt-looking-like-a-masterstroke-now/7120240>.

[14] Ibid n 1.

[15]The Sydney Morning Herald <http://www.smh.com.au/comment/equality-is-far-away-with-friends-like-malcolm-turnbull-20160228-gn5is5.html>.

[16] Sexton, Christopher. In conversation with the Honourable Michael Kirby AC, CMG. [online]. Intellectual Property Forum: Journal of the Intellectual Property Society of Australia and New Zealand; (96) March 2014: 8-17 <http://search.informit.com.au.elibrary.jcu.edu.au/fullText;dn=20151026;res=AGISPT>.

[17] Australian Constitution s51 (xxi).