30 Alternative L.J. 104 (2005)
Homophobia Perpetuated

handle is hein.journals/alterlj30 and id is 110 raw text is: ARTICLES

H HOM OPH:O BIA PERPETUATED
The demise ofthe Inquiry into the Marriage
Amendment Bill 2004 (Cth)
SANDRA BERNS and ALAN BERMAN

REFERENCES
I. Dr. Kerryn Phelps, Faculty of Medicine,
University of Sydney, former Australian
Medical Association Director and her
partner Jackie Striker, as well as Bronwyn
Statham, Lecturer in Law, Griffith Law
School, joined the authors in an original
submission to Parliament on this issue.
2. Marriage Act! 96 1 (Cth) s 5(1).
3. (1866) LR I P&D 130.
4. Marriage Act 1961 (Cth) ss 5(l)
and 88B(4).
5. McBain v State of Victoria [2000] FCA
1009; Re Kevin (Validity ofMarriage of
Transsexual) [2001] FamCA 1:074.
6. See, eg, Adoption Act 1988 (Tas).s 20
allowing adoption by married couples
or those who have registered a deed
of relationship under Part I1 of the
Relationships Act 2003 (Tas).

Over recent years, it has become clear
that the dominant characteristic of the
present Commonwealth Government
is its overwhelming desire to appease electorally
powerful interest groups through the mechanism
of parliamentary inquiries on alleged 'hot button'
issues. The 2003 House of Representatives Standing
Committee on Family and Community Affairs
Inquiry into child custody arrangements in the event
of family separation had its genesis in the electoral
pressure brought to bear on parliamentarians by,
inter alia, fathers' rights groups. Significantly, it has
yet to give birth to any meaningful outcomes, despite
numerous 'populist tinged' recommendations and
a lengthy report. The 2004 Inquiry into the Marriage
Amendment Bill 2004 (Cth) followed a very different
trajectory, being scuppered by the enactment of
the very legislation-about which it was established
to inquire! The Bill became law even before the release
of any Inquiry findings or reports.
As a result of the passage of the l Marriage Amendment
Bill 2004, in Australia, marriage is now categorically
defined as the union of a man and a woman for life.
While the legislation does not purport to define or
delimit the generality of the words 'man' and 'woman',
perhaps because even Parliament recognises that
such an undertaking is impossible, for the first time in
Australian history the Marriage Act 961 (Cth) renders
explicit that which had previously been implicit and
derived from the common law decision in Hyde v Hyde
& Woodmansee.3 Section 88EA of the Marriage Act
1961 (Cth) provides:
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.
Other provisions have also been amended to ensure
consistency.4
This article traces the history of the aborted Inquiry
and the ensuinglegislation and explores relevant
constitutional and international lawissues in the context
of that history.The authors argue that the Inquir and
the Marriage Amendment Bill 2004 (Cth), which slipped
through Parliament challenged only by the Australian
Democrats and the Greens, significantly weaken
Australia's claim to be an egalitarian society and serve
as a poignant reminder that pseudo-egalitarian ideals
such as 'mateship' and a 'fair go' are no protection
against measures thatmarginalise vulnerable minorities

for political gain. The changes to the Marriage Act /961
(Cth) perpetuate homophobia and marginalise gay,
lesbian, transgender and intersex Australians.
The 'Claytons' inquiry: a chronology
What is the history behind these dispiriting events? In
June 2004, the government introduced the Marriage
Amendment Bill 2004 (Cth) into Parliament. The
alleged urgency owed much to the desire of the
government to be seen to act decisively in the
face of judicial decisions challenging conservative
understandings of family.' Each of these decisions,
whether affirming the right of a lesbian couple to
access IVF services (McBain) or upholding the right
of a female/male transsexual to marry a woman (Re
Kevin), was greeted with howls of outrage from the
religious right and conservative parliamentarians and
with promises of immediate legislative action to 'undo'
damage wrought by 'judicial activism'.
Here was a 'cheap fix': legislation with populist appeal,
few obvious constitutional ramifications and which
the government believed did not have the potential
to alienate any electorally powerful segment in the
community. As a bonus, it seemed certain to provoke
the 'chattering classes' and thus provide a further
vehicle for reminders about the follyof attending to
the white noise generated by urban 'elites': out of touch
with 'real, ordinary Australians'. It also represented an
opportunity for 'cheap' point scoring with an American
President vigorously pursuing a similar agenda against
the background of the willingness of some United
States jurisdictions to recognise same-sex marriages
and a general absence of barriers to adoption by same-
sex individuals and/or couples.
While a deeply conservative Labor opposition under
Mark Latham was happy to support a requirement that
marriage be defined as being between a man and a
woman, it was not happy with the proposal to amend
the Family Law Act 1975 (Cth) to require bilateral
and multilateral adoption agreements to restrict
adoption to heterosexual couples. Adoption was a
matter for the States, a majority of which had Labor
governments, and several States permitted adoption
by same-sex couples.6 After the government realised
that its proposals would not pass the Senate in their
present form, it referred the Marriage Amendment
Bill 2004 (Cth) to the Senate Legal and Constitutional
Committee for inquiryand report by 7 October 2004.

104   AItLJVoI30:3 June 2005

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