Same-sex marriage has long been a topic of debacle in the administrative circles of Australia. It has been a sticking point for the ruling Liberal Party because of their coalition with the Catholic-valued National. As a consequence, they have been opposing any amendment that might be proposed to change the current Marriage Act, 1961 which defines ‘marriage’ to be ‘the union of a man and a woman to the exclusion of all the others’; which in indirect words clearly bars same-sex marriages to be legal.
The Marriage Act as originally enacted in 1961 did not contain a definition of marriage. Delivering the second reading speech, Attorney General Barwick said:
… it will be observed that there is no attempt to define marriage in this bill. None of the marriage laws to which I have referred contains any such definition. But insistence on monogamous quality is indicated by, on the one hand, the provisions of the Matrimonial Causes Act, which render a marriage void where one of the parties is already married, and by a provision in this bill making bigamy an offence.
While this Act did not specifically ban the legality of same sex marriages, in 2004, the then Prime Minister John Howard inserted an amendment which clearly defined ‘marriage’ as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.
This particular definition of marriage was used to expressly preclude the recognition of same-sex marriages conducted overseas. In this regard, the Attorney-General, Philip Ruddock, stated:
“A related concern held by many people is that there are now some countries that permit same sex couples to marry. It has been reported that there are a few Australian same sex couples who may travel overseas to marry in one of these countries on the basis that their marriage will then be recognised under Australian law on their return. Australian law does, as a matter of general principle, recognise marriages entered into under the laws of another country, with some specific exceptions. It is the government‘s view that this does not apply to same sex marriages. The amendments to the Marriage Act contained in this bill will make it absolutely clear that Australia will not recognise same sex marriages entered into under the laws of another country, whatever country that may be.
In 2013, the topic gained much limelight and discussions on various fronts and the High Court rules that only the federal government had the authority and jurisdiction to bring about any changes or amendments in the existing Marriage Act.
Last week, member of the Coalition Government, Dean Smith drafted a marriage equality bill and hopes to push it for a parliamentary vote. The bill allows two people to get married regardless of their gender, but providing exemption for religious bodies or civil servants who personally refuse to marry same sex couples.
The Senator also said that it was the most comprehensively prepared bill for marriage equality in the recent past, which got thumbs up’s from any advocates for the same. But in case it failed to pass through the Senate, the government had to resort to their plan B of conducting a voluntary postal plebiscite.
A plebiscite is, in simpler words, a countrywide vote to get public feedback on a political proposition. The results of a plebiscite vote are not legally-binding and don’t have the power to alter the course of law. Participation is also voluntary in a plebiscite; hence the citizens will not be penalized for not voting which is the usual rule in Australia during elections or referendums.
Though the ex-Prime Minister, Tony Abbott urged the Australians to vote against the bill for the sake of religious rights and freedom of speech, the current one – Malcolm Turnball assured that he would support the outcome if it is a ‘yes’. He further appropriated a sum of $122 million AUD to carry out the postal ballot and drafted in the Australian Bureau of Statistics or ABS to look after the whole affair.
But same-sex marriage advocates had a few points to say about this overall decision.
- The plebiscite does not make the decision a legally-bound ruling and since the postal ballot was a voluntary one, it was, according to many campaigners of the same-sex marriage rights – a wastage of time and money.
- There would be legal complications regarding the fact that the coalition government has acted outside its immediate executive power and the permission for the postal ballot had not been passed through the parliament. Money sanction for any sort of plebiscite also needs approval from the Senate to be executed – which together makes this act a controversial one; though the government happens to claim they do have legal advice to continue on this path.
- Another key point in their argument was the purpose of the establishment that is to conduct the poll. ABS, by virtue of name, deals with statistical data, and the basic human rights of an entire community of human beings cannot possibly be determined on assumptions, analysis and chance figures.
The supporters also claimed that there have been several public polls taken over the matter by different organisations privately or over the internet, with minimal cost involved and each of them swayed the final result towards a positive response for the LGBTQ community. It was clear what most of the country wanted; and yet the whole procedure of sending ballots over the post and retrieving them, and that too on a voluntary basis kind of feels like leaving the fate of a whole lot of people on others’ hands – people who deserve nothing less than equal rights.
A month ago, Germany became the 23rd nation to legalise same sex marriage; and now Australia, albeit quite a bit controversially, is probably heading the same way. If we consider the situation of India in the same light, we are light-behind in the race, let alone catch up. Where several countries are fighting for an official legalisation of homosexual marriage, in our country the very act of it is not only criminalized, but is very much of a social stigma.
Infact, when most of the other progressive countries were taking the step towards providing legal support to the LGBTQ community in one way or other, in India, Section 377 – the IPC code which criminalises any sexual act which is not procreative in nature, was re-established in 2013 after being nullified in 2009 by a historic Delhi High Court ruling.
As a country whose children read textbooks with EQUALITY, LIBERTY AND FRATERNITY in the Preamble, it is perhaps high time we started borrowing some influence with our fellow countries in the world. We can perhaps even learn from their mistakes and complications and make the process easier for us, given that we proudly own the world’s largest and most complex written constitution.