There have been a number of references in recent weeks to the original changes to the Marriage Act in 2004. Those changes were implemented in response to a specific series of events which I want to set down here. As has been noted many times, there was no plebiscite, just a swift and decisive change to the law effected by parliamentary vote. The Hansard record of the debate makes very interesting reading and is an indication of how much has changed in the intervening 13 years – and how much has stayed the same. So, for the record, this is how it happened.
In June, 2003, my partner, Sarah, and I were in Toronto – her home town – when the Canadian law changed allowing two people of the same sex to marry. We were driving to Sarah’s parents when the news came on the radio. We hadn’t really been following the issue so it came as quite a surprise. ‘That’s amazing!’ I said. ‘We could get married! I mean, do you want to get married?’ So it wasn’t the most romantic of proposals, but six weeks later we were married by Lake Catchacoma with friends and family from all over the world. It was, we believe, the first wedding of an Australian citizen under the new law.
When we returned to Australia, we decided to seek clarification as to the legal status of our marriage. A mutual friend introduced us to Jason and Adrian Tuazon McCheyne, a gay male couple who had also married in Canada and who wanted to run some kind of legal case. So together we sought advice as to how the Marriage Act (1961) might interpret our situation. We were told that the act stipulated that overseas marriages were recognised in Australia except in certain circumstances. Those circumstances were: if one of the parties was already married, or they were not of marriageable age; if ‘consent was not real’, or if either party was in a ‘prohibited relationship’ – that is, they were brother and sister, or an ancestor or descendant. The legislation did not say, ‘if the marriage was between two people of the same sex’. On this matter it was silent. This meant that it was possible that our respective marriages might be valid under Australian law.
We assembled a legal team who agreed to run our case pro bono: Kimberley Hunter from family lawyers, Clancy and Triado, University of Melbourne legal academic and now QC, Kristen Walker, Paul Vout, Solicitor and now Barrister, and Peter Hanks QC. We were advised to lodge an application in the Victorian Family Court seeking a declaration that our marriage was legally recognised. Jason and Adrian had a son, as did we, and as much as anything else, we wanted some clarification for them.
The date set for our Family Court hearing was 23rd August 2004, easy for us to remember because it was the first anniversary of our wedding. I recall talking to Kristen at the time and saying that I thought we had a good chance of winning. Under the current legislation, possibly, Kristen advised, but they can always just change the law. And she was right, of course. They did just that.
The Marriage Amendment Bill was introduced on 24th June, 2004 and included, for the first time, a definition of marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. The bill further stated that: Certain unions are not marriages. A union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman; must not be recognised as a marriage in Australia.
In the Senate debate about the amendment Brian Grieg clearly identified the motivation for the bill:
There are at least two test cases before the Australian courts seeking a declaration of a same-sex marriage conducted overseas and, contrary to the dishonest claims of anti gay groups, that is not a political action by the mythical and militant gay lobby to undermine the very foundations of society but an action by two very unassuming couples [only time Sarah has ever been described as ‘unassuming’!] who engaged the courts out of their own volition. I have not met either couple. One of these couples includes a Canadian national, a person whose marriage is lawful in Canada but about to become unlawful in Australia—a ridiculous situation… There is no need for rush and haste. The Australian citizens who have their cases before the legal system deserve their day in court. Natural justice should have been allowed to take place. Rushing to extinguish legal avenues is despicable.
The bill was rushed through, however, ensuring it was passed into law before our application was heard. Amendment of the Marriage Act (1961) received royal assent on 16th August, exactly one week before our hearing in the Family Court. Our case was effectively knocked out and we withdrew our application. The rest, as they say, is history.
So, they didn’t need a plebiscite first time around. They don’t need one now. Any plebiscite is a bad plebiscite. There is no such thing as a ‘good’ or ‘better’ or ‘ok’ plebiscite. It’s divisive, expensive and harmful. It sets a terrible precedent. Irish campaigners described their referendum as ‘brutal’ and urge us to do whatever it takes to stop it. Kids – mine and others in rainbow families – will be the focus. Be in no doubt: it will be utterly appalling for them. We are a strong and resilient community, but some of us, many of us even, will be brought to our knees by this. Not having a plebiscite doesn’t mean we have to wait three years for marriage equality; that’s a furphy. But even if we do, that’s better than a plebiscite. The good news is, there’s a great Plan B. Let’s take a leaf out of John Howard’s book and change the law quickly, easily and for free. Let’s have a free vote.
No plebiscite under any circumstances – just a free vote.