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The Marriage Act as originally enacted in 1961 did not contain a definition of marriage.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