I am indebted to the legal industry publication ‘Lawyers Weekly’ for summarising some interesting facts in relation to marriage equality.
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A recent article in that publication set out the following:
• There are approximately 34,000 same-sex couples in Australia and more than half of those couples would marry if that was an option.
• More than 7 out of 10 Australians support same-sex marriage, according to recent polling.
• The Netherlands, the fi rst country in the world to legalise same-sex marriage, did so through parliamentary processes. The Republic of Ireland was the fi rst to legalise same-sex marriage through a Referendum (last May).
• In 2004, the Federal Marriage Act 1961 was amended to defi ne marriage as between a man and a woman.
• Australia does not have a Bill of Rights and the Federal Constitution currently has many inadequacies, including some shortcomings in this area. However, there is no constitutional impediment to same-sex marriage and a referendum is not necessary to bring about reform.
• While more than 20 countries have legalised same-sex marriage, Australia remains one of the world’s only English speaking nations to continue the prohibition.
• Australia is currently the only liberal democracy without a Federal Human Rights Act or Constitutional Bill of Rights. The United States wrote the principle of equality into law in 1868, but Australians continue to lack those protections in 2015.
• In 2013, the High Court of Australia ruled that the states and territories in Australia cannot craft marriage equality bills to subvert Federal legislation. Importantly, however, the High Court ruling suggests there is no constitutional impediment to same-sex marriage, implying that a referendum is not necessary to bring about reform.
Thus, in Australia, the power to change our current situation rests almost exclusively in the hands of politicians and the Federal legislative process.
Some politicians have sought to progress reforms through initiating private members’ bills. However, Government business has priority over such bills.
The nature of our parliamentary process is such that there will be no consideration of reform unless and until the Government gives such reform a priority in its legislative programme. The Prime Minister does not currently seem inclined to make this issue a priority.
John Clarke is the Solicitor Director of Clarke Law, with a local network of offices in Narooma, Bermagui & Bega
