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The gospel according to John Howard

Prior to 1961, there was no Commonwealth law regarding marriage. To make regulations consistent across the States and Territories, the Marriage Act was proposed. The federal Attorney-General Sir Garfield Barwick at the time stated the main purpose of the legislation was to:

Produce a marriage code suitable to present day Australian needs, a code which, on the one hand, paid proper regard to the antiquity and foundations of marriage as an institution, but which, on the other resolved modern problems in a modern way.

The Marriage Act as originally enacted in 1961 did not contain a definition of marriage.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.

On its passage through Parliament, Senator Gorton, who was responsible for the carriage of the Bill through the Senate, remarked:

[…] in our view it is best to leave to the common law the definition or the evolution of the meaning of ‘marriage’ as it relates to marriages in foreign countries and to use this bill to stipulate the conditions with which marriage in Australia has to comply if it is to be a valid marriage.

The definition of marriage now in the Marriage Act was inserted in 2004, its stated purpose being to reflect ‘the understanding of marriage held by the vast majority of Australians’.

The Government stated that:

Including this definition will remove any lingering concerns that people may have that the legal definition of marriage may become eroded over time.

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.

Initially the Bill not only contained amendments to define marriage and to preclude recognition of overseas same-sex marriages in Australia, but also included amendments to prevent same-sex couples adopting children from overseas. Labor and the Greens objected and the amendments relating to children were dropped in exchange for a speedy passage of the Bill.

The Attorney-General Philip Ruddock stated:

If this bill is acceded to today, I want to make it very clear that the reason for this, without breaching any privacy matters, is that some parties have already sought recognition of offshore arrangements approved under the laws of other countries and would be seeking recognition under our law.

It is the government’s view that the provisions of the Marriage Act which we are seeking to enact should not be delayed and should not be the subject of Senate referral. The opposition having indicated its support for these measures should ensure—having restricted it to those matters that relate to a definition of marriage and the recognition of overseas marriages, which they say they support—that they receive a speedy passage.

The original proposers of the Act purposely did not define marriage, recognising it as an evolving institution that should reflect modern society. How bizarre that 43 years later, the uber conservative John Howard could not accept this and hastened to impose his will on the electorate, telling us what the “vast majority of Australians” wanted without the aid of a plebiscite, and rushing it through Parliament to forestall legal challenges. Sound familiar?

It is laughable that, 55 years after the original Act, we are still waiting for today’s government to catch up to their more enlightened predecessors.

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17 comments

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  1. Jaquix

    Well you would have to say that Sir Garfield Barwick had it in one, to quote:

    “The federal Attorney-General Sir Garfield Barwick at the time stated the main purpose of the legislation was to:

    Produce a marriage code suitable to present day Australian needs, a code which, on the one hand, paid proper regard to the antiquity and foundations of marriage as an institution, but which, on the other resolved modern problems in a modern way.”

    No plebiscite then, or for John Howards amended law. No plebiscite needed now, just the parliament to carry out the wishes of the people, which polls consistently place at over 70%. Otherwise we will have to have a plebiscite every time they make a new law, which is ridiculous.

  2. Terry2

    Yesterday I suggested that if we are to have a plebiscite then perhaps the question should be :

    Should all Australian citizens be equal before the laws of Australia ?

    It has since been pointed out to me that the Howard 2004 amendment to the Marriage Act had a nasty sting in the tail as became apparent recently with the death of one partner in a same sex marriage , a marriage recognised in their country of domicile but required, according to Australian law, that the Death Certificate state “never married”

    The section of the act reads :

    88EA 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.

    So the question we will need to ask for Tony’s plebiscite will have to address this malicious twist also.

    Any suggestions ?

  3. Glenn K

    Something which is important to note, and probably the biggest change John Howard made. Previously marriage was defined as a “testament” and not a “contract”. This made pre-nuptial agreements invalid in Australia. As a testament, parties enter into an agreement with no expectation of anything in return. Under a contract, both parties have an expectation of receiving something in kind. So by changing the nature of marriage to a contract from a testament, Howard’s changes made pre-nuptial agreements legal, or at least gave them the opportunity to have recognition under the law.
    I think SSM was a sidebar issue to making the change that recognized marriage as being a contract and not a testament. Seriously, the religious nutters should have been more up in arms about this change because it finally killed of the idea of a wife being a chattel and not an equal partner in marriage. 🙂

  4. Glenn K

    further to my point, without Howard’s change regarding contract status – had he not done that then today any SSM would be better off with a Civic Union rather than a marriage – because the Union would confer more rights on the parties. This also applies hetro couples. But, this is a moot point because the change was made and marriages are no longer testaments. 🙂

  5. Nato

    Woah! A piece that stayed on-topic without snide asides or straw man arguments and using direct quotes instead of imputed intentions. Is this the dawn of a new AIMN? (JK, I’ve already read Rossleigh’s Rolex bit)

    As a libertarian, I would agree that the feds have no place defining marriage, but would take it even further.

    Why do we have a marriage act at all any more?

    Since PM Rudd gave all the rights of married people to every adult couple, regardless of orientation, who co-habitate for 6 months there is no reason for marriage to exist in the statute books. If even PM Abbot left it alone, surely there exist enough precedent and case law to remove politicians entirely.

    Religious people and those who want a celebration are still going to make their vows, but let’sget the government out of our bedrooms.

  6. totaram

    ” Otherwise we will have to have a plebiscite every time they make a new law, which is ridiculous.”

    No, no, no plebiscite required. Not when it suites them. Plebiscite is for delay and disruption. See how they tried to bring in Work Choices without a plebiscite? Or the WMDs of Saddam Hussein, which sent our soldiers there to be killed and maimed for a big lie.

  7. Jan Dobson

    Excellent article. Succinctly nails how idiotic the “because it’s always been done this way” argument for failing to give equal rights to all, is.

    But it got me thinking. Of what are the Howard’s (and ACL members) of this world, afraid. Have they so little sense of worth that they must tear down or cage in others, to bolster their own egos? Do they get some secret thrill from demeaning another human being? Do they think that by some strange version of osmosis, extending basic rights to others will diminish their own rights?

    Changing the marriage laws, promoting wealth as a virtue, stirring up xenophobia, even changing Australia Day from just a summer long weekend to a jingoistic day for ‘patriots’…didn’t like him then, haven’t changed my opinion. But I still don’t understand what drives him.

  8. Matthew Oborne

    Nato have you read any main stream media articles?. sometimes the mainstream media just need a good prodding before they will write a piece that contains issues mentioned on the aimn.

    It took a few years for the term social contract to be mentioned again by the MSM, Rossleigh has made a comparison between the intervention in the NT where we were told the harm in some communities was so great that we needed to have what equated to an invasion to stop it. That is very relevant and a good point that hopefully the MSM read and realise the intervention was to stop harm (of those suffering in communities, yet detention of refugees is deliberate harm as a deterrent.

    While the MSM was hedging their bets as Tony announced terror threats writers on the Aimn were calling bullshit, it took many months before fairfax had writers prepared to call bullshit as Tony kept fronting the cameras with terror updates.

    Before ABC’s promise tracker theaimn were reporting broken promises that the MSM were quiet on.

    It isnt a subscribe site so you can bet theaimn don’t have the dollars to dig but they dig nonetheless.

    It is also a platform that you can get your message out there, your point of view that may be different but worthwhile.

  9. Shaun Newman

    I am all for equal marriage, but I don’t approve of same sex couples being able to have children. Does anyone else see that there may be too much encouragement one way or the other to the children, or am I just being old fashioned?

  10. Kaye Lee

    Shaun, homosexuality doesn’t come from”encouragement” and there are many studies showing that the children of same sex couples are better off in many aspects – families spend more time together, less arguments, children are encouraged to talk more about how they feel etc etc. As I have said before, the only parameter where they are worse off than the child of a heterosexual couple is that they get bullied more which is the fault of those doing the bullying.

  11. Jan Dobson

    Hi Shaun, I too feel that, in many issues, the best interests of the child aren’t given enough weight. But I can’t see the logic of your argument. If it were the case that children were ‘encouraged’ by the sexuality of their parents, wouldn’t all the ‘discouragement’ over the last hundreds of years have had an effect?

    If acceptance of individuals and loving families, in any form, will encourage anything it will be in the reduction of self harm and unhappiness to those who are still vilified, by some, for being themselves.

  12. keerti

    there seems to be confusion here about marriage and having children. There are people who are married who have children, there are people who are married who don’t have children, there are people who are not married who have children and there are people who are not married who don’t have children. There are women by themselves who have children and a lover who may be either male or female. The peculiar idea that most of australia lives in a “standard” two parent heterosexual union is outdated, but it sucks in the faithful every time the subject is raised! Clearly in this country there is no precondition of being married in order to have children so why does the subject of gay marriage always get sidetracked into this BS!? The research actually says that children in homosexual relationships are better adjusted and generally don’t become homosexual by association. Personally I don’t care about marriage.. the two I have been involved i (my parent’s and the end of my own) put me off for ever. More importantly the whole discussion takes away from much more important issues facing us such as a rogue government, environmental disaster etc

  13. Miriam English

    Excellent article Kaye, as usual. Succinct and to the point. I certainly admire your writing.

    Shaun Newman, yes, you are being “old fashioned”, to put it politely. Gay parents don’t seem to produce gay children any more often than straight parents do. But even if they did why would that be any reason to object? You are starting with the notion that being gay is a bad thing. Why would you think that? Surely we have more than enough breeding pairs in the world already — heterosexuals are overpopulating and destroying the planet, not gays. Having gay (and straight) couples that would happily adopt hetero parents’ unwanted children is surely a good thing. In any case, it doesn’t appear to be possible to alter someone’s sexuality, merely suppress it, causing all kinds of psychological damage in the process.

    Jan Dobson, you wondered what motivates people to diminish others’ rights the way ultra conservatives and many of the more frozen-in-time Christians do. I’ve often wondered about this too. It is hard to know exactly, but I think it comes from feeling that they have a privileged moral position and that this gives them the right to impose their moral view upon other people. To some extent perhaps we all do this. I look at John Howard and see an easily corrupted, fearful person who craved recognition and wanted to force his deeply disturbed racist and homophobic views on everybody else.

    Of course, I disapprove mightily and consider myself morally superior to him. (You can see what I thought of him in chapter 7 of my freely-downloadable story Prescription.)

    The thing to ask is, if I was given a magic wand would I wave it (the way he did, given control over an entire nation) and muzzle him and his toxic mindset? If I did, would I be any better? That’s a difficult question to answer, and it is interesting that it is one that only tolerant people ask themselves.

    Perhaps we could avoid the whole problem by ensuring that politicians are required to have certain minimum entry-level qualifications. You need to pass a test to be able to drive a car, and need far more stringent qualifications to be able to fly an airplane. Why do we let totally unqualified lunatics steer the whole country? (Holy cow! Tony Abbott!?!? How the hell can we afford to let that happen again?) Politicians should be required to have a good understanding of science and technology because that is essential to almost everything today. They should be well versed in history because those who don’t learn from history are doomed to repeat it. Also, they should be above average intelligence (that alone would exclude many of the current crop) and without major psychological defects such as sociopathy, psychopathy, or delusions. Superstitions are a kind of delusion that should be sufficient to bar anyone from holding public office, and all religions are superstition. If such rules were applied to the political landscape we would immediately eliminate most of our recurring problems. Of course we would be left with very few politicians, but the profession would become something to be admired instead of despised, and might begin attracting healthy minds instead of the damaged opportunists it so often seems to now. Of course the corrupting pressure of Big Money needs to be removed from politics too.

  14. keerti

    Why shouldn’t we let totally unqualified lunatics steer the country? We let them procreate!

  15. Nato

    Matthew Oborne, I am an avid reader, as some might say, of the aimn and a very occasional commenter. It takes me out of my comfort zone occasional and definitely introduces me to new ideas.

    You make my point very well though, that in a sprawling, unfocussed article in which Rossleigh essentially endorsed Turnbull’s judgement (Robert should not be a govt minister) He inserted a paragraph invoking the intervention, Manus & Nauru, gagged media, people smugglers, the navy’s border protection operations and refugee boats pulling into Sydney harbour.

    There was only one scare quote, from (plural, anonymous) Chinese officials that even tangentially touched on the central topic. Malcolm Turnbull on the GST? Why?

    Barnaby Joyce…need I say more?

    It was not thought-provoking. This one was. The dialectic on MMT was, too.

    I wish there were more of these essays: considered, planned and structured to make a point on one issue.

  16. Shaun Newman

    Miriam English, I appreciate your frank reply, I hadn’t looked at the subject in those terms, and I really do appreciate the education.

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