Nation’s Human Rights law is grossly deficient, says Lecturer at Law, Lisa Coates

BLOCKING same-sex marriage legislation does not address the Elephant in the House of Reps, that Australia does not have a Bill of Rights, said an academic from Charles Sturt University.

Lisa Coates, lecturer at Law, at CSU, said when Hon Bill Shorten, Leader of the Opposition stood up in the Federal Parliament to introduce what is known as the Marriage Equality Bill (Marriage Legislation Amendment Bill 2016) on 12 September 2016 the rubber hit the road on the same sex marriage issue.

The results of the National same sex marriage postal survey were released on November 15, with a majority “Yes” in all States and Territories of Australia.

“Same sex marriage legislative action in Australia is getting busier, more expensive and detailed than a Cirque du Solei tour, without the justified cathartic experience set to music,” she said.

“In 2004, the Howard government very clearly stamped out same sex marriage with the now infamous definition amendment to the Marriage Act 1961 ‘marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’ 

“The Marriage Amendment Bill (Bills Digest No. 5 2004–05) noted that the Bill in its original form was partly to prevent same sex couples from adopting children from overseas and the haste in passing the Bill in its final form explicitly noted it was to prevent same sex couples from having their foreign marriages recognised under Australian law.

“Since then, there have 22 bills on this issue introduced to Federal Parliament. Fast forward then to now, the results of the National opinion postal survey issued by the Australian Bureau of Statistics costed $100 million (not including the High Court challenge).

“Putting aside issues of equity and access (such as the survey was only in English and of the 15 languages available for translation, none are in any of the Aboriginal or Torres Strait Islander languages or dialects), the survey has shown us for what we really are as a democratic nation; the good, the bad and the ugly.

“Arguments for the "No" case do not simply come from the 'Christian right', but this is the section I will address. They boil down to two arguments: Firstly, harkening back to 2004 and the Marriage Amendment Bill, that legal marriage is the gatekeeper to legal rights regarding children and that same- sex marriage must be stopped on this basis. Secondly, that Christians have an obligation under Scripture to influence Government on a range of issues in line with their beliefs.

“The first argument that same-sex couples should not be permitted to marry is based on a religious concept that marriage is the foundation of procreation of children and that the marriage is for this purpose. This creates a sense of caste and class even within the church. What of those heterosexual couples who are infertile, or those who meet and marry too late for children, or for other reasons choose not to have children? Where do they fit within the words of Psalm 127: 3 ? 3 Children are a gift from the Lord; they are a reward from him.

“Simon Crouch for ABC’s The Conversation conducted a Fact Check on 7 September 2017, concluding that overall, children raised by gay parents did not have worse outcomes than children raised by straight parents, acknowledging criticisms of the available evidence.

“The second main argument that was raised by Christians is that we have a vested interest to influence the governing authorities, since we are required to be subject to them, "Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God" (Romans 13: 1). Both leaders of the major parties have already made public statements that religious freedoms will continue to be protected during and after this process. However, they have failed to articulate particulars of how this can occur in the absence of constitutional protections such as a Bill of Rights in most Western nations or the sweeping protections of religious freedoms offered by the UK's Human Rights Act 1998.

“This is the heart of the problem.

“Until Australia has clear and comprehensive legal Human Rights protections these moral and ethical battles will be played out across our sun drenched land on a seismic scale; the ugliness of our refugee crisis on Manus and Nauru, the euthanasia debate currently before the Victorian Houses of Parliament, the current debate on same sex marriage, the abortion debate. In a robust and respectful democratic society, these debates will and should still occur on some level, but the ongoing travesty that is Manus and Nauru and the attempts to 'safeguard' religious freedoms by blocking same sex- sex marriage legislation demonstrate that our Human Rights law is grossly deficient. A Bill of Rights is not a silver bullet, but would go a long way to alleviating the problem. It would provide a compass to navigate the rocky terrain.

“Both the ‘Yes’ and ‘No’ camp have taken reductionist positions. One slogan the "No" camp have gone with is the ‘It's ok to say No’ frame that was prominent on Facebook.

“The fact that this echoes past sex education campaigns against sexual assault adds another layer of hurt to the debate.

“Should this continue, it will not heal the divisions in our communities.

“The ‘Yes’ camp have gone with the powerful ‘Love is Love.’ However, the Westminster system of government does not legislate for love, hate or any other emotion, for good reasons.

“MPs have a dual role of representative and responsible government. They are the voices of their constituents, but to exercise their power with responsibility. This second term is nebulous at best and smacks of paternalism at worst. Howard did not effectively consult the people hence the Marriage Amendment Act 2004. In going populist 'representative' PM Turnbull is trying to please everyone, and may please no one.

“The rainbow was God's promise through Noah to the world that He would keep faith with us. That He would not allow us to be destroyed. That after the rain, comes healing, security, encouragement.

“When I see the rainbow flag I am reminded that His promises are for all of us. That healing, security and encouragement are needed by my straight and gay friends, both Christian, other faiths and non- Christian more than ever. They are all my neighbours (Luke 10: 29-37).”