Q&A Should same-sex marriage be made legal in Australia?
What is marriage and what does it mean in a modern, secular Australia? It’s a philosophical argument that has divided much of the Australian community—including many of those in the Australian legal profession—following a concerted eff ort to legalise same-sex marriage. As currently defi ned in the Marriage Act 1961 in s5(1): “Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”
This defi nition has been challenged by various community sectors that have come out in support of a change to s5(1) that would legalise marriage for same-sex couples.
On 13 February 2012, Labor backbencher, Stephen Jones introduced a Private Member’s Bill, the Marriage Amendment Bill 2012 (the Jones Bill) and the Greens Adam Bandt and Independent MP Andrew Wilkie also jointly introduced the Marriage Equality Amendment Bill 2012 (the Bandt- Wilkie Bill). Following an extensive consultation period in which the Law Council made submissions on both Bills, the Jones Bill was debated and defeated in the House of Representatives 98 votes to 42.
The Law Council’s two submissions relating to both Bills refl ected its policy position that the Marriage Act 1961, and in particular s5(1), was discriminatory to same-sex couples and should be amended to allow any two people to marry.
On 10 September 2012, ALP Senator Trish Crossin introduced the Marriage Amendment Bill (No 2) 2012 into the Senate. The Bill was co-sponsored by ALP Senators Carol Brown, Louise Pratt and Gavin Marshall and was debated on 20 September 2012. It suff ered the same fate as the Jones Bill and was defeated by 41 votes to 26.
Kate Eastman
In the wake of these defeats, it now appears unlikely the Bandt-Wilkie Bill will be pursued in Parliament, which now raises questions as to
‘where now?’ for those pursuing changes to the Marriage Act.
The Law Council Review spoke with Kate Eastman of the New South Wales Bar who consulted extensively with the Law Council in preparing its submissions and who also represented the Council before the Senate Legal and Constitutional Aff airs Legislation Committee on the issue of same-sex marriage.
How did you get involved with preparing the Law Council’s submissions on the issue of same-sex marriage?
I cannot claim any credit for the Law Council’s submissions. I was asked to assist in giving evidence before the Senate Committee. I have assisted the Law Council over a number of years on inquiries in relation to discrimination law— sex discrimination law in particular— and also more generally in the human rights area. A combination of a discrimination law background and general human rights law background is maybe why the Law Council asked whether I would appear at the Senate Committee’s inquiry into amending the Marriage Act to recognise same-sex relationships.
I have had an interest in this issue for a number of years from a human rights perspective. I was Henry Burmester QC’s junior in Re Kevin (Validity of Marriage of Transsexual) [2001] FamCA 1074, which involved the validity of the marriage of a transgender person.
WITH KATE EASTMAN
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64