There is quite the discussion, and rightly so, about gay marriage in this great country of Australia. What is not right is the discussion regarding its legislation. How and why the government should make laws is all pretty straight forward. A quick recap of where we stand …
In 1961 the Australian Parliament passed the Marriage Act creating federal laws with regards to the marriage of its citizens. Prior to that the individual states and territories administered marriage law. The majority of the act details who can perform marriages, how we recognise foreign marriages and when a marriage might be void; that being when one or more of the participants are minors, already in a recognised marriage, when consent was not given due to fraud, mistaken identity or mental incapacity or when the parties are related by birth. The Act makes no mention of gender. It also makes no mention of race and inter-racial marriages had been taking place in Australia since before Federation in 1901.
In 2004 the Senate passed a Marriage Amendment Bill which added the following specific text:
Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
Certain unions are not marriages. A union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman; must not be recognised as a marriage in Australia.
It was bought in to clarify the language and put the common law definition beyond legal challenge and was passed by the Senate a speedy 10 weeks after its initial introduction. It was bought shortly after the United Kingdom’s Civil Partnership Act 2004 recognised same-sex unions and gave the same legal rights as received by heterosexual couples, but stopped short of allowing them to get “married”. With approximately 21 500 people immigrating from England to Australia every year it seems likely that this was passed so quickly to “protect” Australian marriage from the influence of the laws of the motherland by its incoming citizens.
My problem with this amendment, is three fold. One, the wording of the first sentence is just terrible for a legal document and the definition is rendered pretty much meaningless by the last two phrases. “… entered into for life.”: So everyone that gets a divorce was never really married? “… to the exclusion of all others”: So anyone that has an affair is not really married? Maybe it hasn’t come up as we don’t have a very litigious society, but it seems to me that a spouse could use the wording of this amendment to get a marriage annulled and somehow get a financial advantage during the ~500 000 divorces that have taken place since the amendment was passed. These two phrases obviously have no bearing on whether a marriage is/was recognised by Australian Law and seems like something that might have been lifted directly from a Christian wedding service.
My second problem is the use of the word “must” in the second section. Why “must not be recognised” as opposed to “is not recognised”? This changes it from a neutral statement of legal fact to … well a desperate urging from someone with some type of agenda. It makes me cringe that this biased writing exists in the law of this great country.
The final problem with this amendment is the motivation behind it. There are essentially only two reasons that any democratically elected government; by the people and for the people; should have for passing legislation. Firstly, laws required to run the country and provide services to its people. These relate to collecting funds in the form of taxes and fines, and how that money is spent in salaries of public servants, benefits to the needy and the funding of hospitals, schools, roads, etc. The second reason to make a law, and the one that everyone thinks of when you hear the word “law”, is to protect Australian citizens. We have road rules to protect people from other drivers. There are regulations for running a business to protect employees and customers from bosses and corporations. We have laws banning addictive narcotics and gambling to protect us from ourselves. So the question to ask is what is the purpose of this law? Who is it that needs protection from married gay people? What exactly is the threat from homosexual marriage? And why is this threat never mentioned by the politicians who are so against it?
The politicians talk a great deal about their opinions and what they think of the institute of marriage. Their personal opinion should not matter when passing laws. They talk a great deal about what the public wants. This is also irrelevant. Politicians/the public might think Asian Australians are bad drivers. Passing a law to restrict that minority from holding a drivers license would be reprehensible. Politicians/the public might think that Aboriginal Australians can not handle alcohol. Passing a law to prohibit them from purchasing it would be wrong. Politicians/the public might think men are unable to ask for directions when they are lost. Passing a law forbidding men from being delivery drivers would be … well just terrible.
The bottom line is the amendment to prevent same sex marriage is segregationist and bigoted. I am appalled that anyone in this country, in the 21st Century, would think that separate laws for different members of society is acceptable. Politicians are elected to do what is best for this country, not what they prefer or what they think is popular. Gay marriage can not hurt this country. Extending the same rights to all Australians can only make it better.
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