- Barry Maley
- The Australian
- 12:00AM July 26, 2016
In 2004, the federal parliament decided that marriage might be defined in the Marriage Act as: “The union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” In doing so, it was believed that such a definition was consistent with the common law and with the intentions of the framers of the Constitution that was overwhelmingly approved by the people in 1900.
... It was expressed in 1959 by a former justice of the High Court, WJ Windeyer, as follows: “We are not to give words a meaning different from any meaning they could have borne in 1900.”
The Constitution is the instrument by which the people of a nation declare the fundamental character of their institutions and their intention that character be maintained until they, in their judgment, believe the time has come for change and adaptation to what they believe to be improvements. The means at their disposal when that time comes is a referendum of the whole nation — in our case a federation — and one fitting that political arrangement.
In our present situation, a referendum is not obligatory despite the High Court’s finding confronting us with a profoundly important change to our understanding of marriage. Marriage, and the family life it best sustains, is at the centre of our society. Could there be a more important reason for resorting to a referendum instead of a mere plebiscite?
To proceed in this way diminishes the democratic choice of the Australian people to properly determine the issue by referendum, rather than simply giving an opinion and then leaving it to the politicians.
We are treating the future of marriage as of less importance than Aboriginal recognition in the Constitution — scheduled for a referendum next year.
Why not include a referendum on same-sex marriage with a referendum on recognition at the same time? This would solve Bill Shorten’s concern about cost while giving same-sex marriage the democratic opportunity its constitutional stature deserves.
Six judges of the High Court have given us their conclusion. It is appropriate and proper that it be put to judgment, and determination of the nature of marriage, by the millions of citizens through the supremely democratic instrument of a referendum.
FULL ARTICLE -->>
Barry Maley is a senior fellow at the Centre for Independent Studies and author of the paper The High Court and Same-Sex Marriage, published last week.