Greens to fight for marriage equality
Greens Senators Christine Milne and Sarah Hanson-Young respond to the High Court decision to rule against the ACT Same Sex legislation act.PT3M6S http://www.canberratimes.com.au/action/externalEmbeddedPlayer?id=d-2z9h2 620 349 December 12, 2013
To the relief of tub-thumping Christians and the former altar boys who muster in the federal cabinet, gay marriage in the provinces is off the boil - for now.
The High Court, six-nil, said the ACT's version of marriage equality for same-sex couples was inconsistent with the federal Marriage Act, which covers the field.
Illustration: Simon Letch
Under the Howard doctrine, the legislation rather too emphatically insists that only a man and a woman, to the exclusion of all others, including the polyamorous, can qualify for marriage.
The judges on high said that didn't mean gay marriage could never happen under the constitution, only that the Marriage Act would need to be a little less white picket fence.
In the meantime, ''unregistered cohabitation'' persists.
Michael Kirby, the former High Court judge and gay rights flag bearer, thinks this state of affairs is attributable to the British fear of sex and this fear being inflicted on its colonies.
That might have been so until July, when the British Parliament legalised same-sex marriage. The law will take effect in England and Wales from the middle of next year. The caber-tossing Scots will also get the same freedom, probably from March.
People such as Kirby take the long view: same-sex marriage ultimately is inevitable in this country, after this crop of political throwbacks have shuffled off.
It's not as though same-sex marriage has been a universally frightening idea in Catholic countries. France, Uruguay, Argentina, Portugal and Spain have all signed up. They have joined the Netherlands, Belgium, Canada, South Africa, Norway, Sweden, Iceland, Denmark and New Zealand.
It used to be little NZ we mocked - the land where men were men and the sheep nervous. Now it is we who huddle in a tired backwater.
In a dwindling pond of the First World, Australia remains a place where the human rights and freedoms of gay people remain tethered to the concepts of the 19th century.
Actually, the High Court explored the 19th century in a little depth in its reasons on Thursday.
It was the English cases in the mid-1800s dealing with polygamy in Bechuanaland in Africa and the Territory of Utah that defined our idea of marriage, until the man of steel stiffened the underpinning of Australian society.
What is so engagingly quaint about all this is that, while Attorney-General George Brandis has been instructing the Commonwealth's lawyers to close down same-sex marriage freedoms, he announced a huge reference to the Australian Law Reform Commission ostensibly to bolster freedoms.
''This is a major instalment towards the commitment I made to restore the balance around the issue of human rights in Australia,'' he said.
Apparently, the commission has to comb through the entire statute book and identify where freedoms have been diminished and devalued.
Of course, there will be an all-important emphasis on weeding out freedom-hating elements of commercial, corporate, environmental and workplace regulations.
We shudder to think what may really be going on, although the terms of reference are all sweetness and light; they address infringements to freedom of speech, protections of personal reputation, threats to freedom of association, fair trials and laws that deny procedural fairness.
Maybe all those things can be achieved by a charter of rights, although ideologically that is out of the question because, apparently, you can't assign our democratic values to unelected judges.
Fixing the encroachment on procedural fairness will come as joyous tidings to refugees and asylum seekers. The Coalition has, after all, promised to abolish the right of boat people to review administrative decisions, the resurrection of the old Ruddock policy.
That seems like a bite-sized chunk of procedural fairness out the window.
I'm also tickled pink by the inclusion of freedom of speech because it shows George has been on a long, agonising journey. When he was a part-time lecturer in law at the University of Queensland 20 years ago, he had an altogether more unusual focus on this question.
In a paper published in the Queensland Lawyer, he proposed scrapping the old common law rule that said damages were the remedy for defamation, not injunctions. Underpinning the rule was the idea that freedom of speech and freedom of the press were important, so there should not be restraints on the right to publish. Damages were the remedy if the publication was libellous.
Law lecturer Brandis would have none of that and said the traditional rule could be attacked ''frontally'' or by the ''back door''. Intriguingly he favoured the back door, attaching injunctions to actions in injurious falsehood and so on.
He finished with a flourishing double negative: ''It seems almost absurd that not only should an interlocutory injunction not be granted, but that the justification for its refusal should lie in the noble rhetoric of liberal democratic values.''
Just pinch yourself. The only thing missing were his two favourite words, ''ex hypothesi''.
The new Brandis doesn't sit well with the Brandis who wanted to close down David Hicks' book Guantanamo: My Journey. He unsuccessfully sooled the prosecutors onto Hicks to recoup the ''proceeds of crime'', forgetting Hicks' admissions were made under torture and so were not admissible as part of our ''procedural fairness''.
Naturally, some will be confused. Who is the real Brandis? The hero of Rupert's oppressed scribblers or the back-door man armed with a quiver of injunctions?
As for the freedom for gay people to marry, five days was long enough before the rug got pulled.