Assess-2 /Legal Studies. Hayley Galvin
Preliminary Law in Practice: Investigating a Contemporary Issue
Contemporary issue: Same Sex Marriage
Marriage is both universal and central. All across our country, in every town and city, every social class, every race and ethnicity, every religion or non-religion, people get married. To be told “You cannot get married” is thus to be excluded from one of the defining rituals of civilised Australian society. Homosexuality and the laws regarding same-sex marriage are issues that previous generations have refused to acknowledge in regards to religious contentions of the church to prevent such laws. Although there have been many efforts at the international level to protect the rights of homosexuals, individual countries have often been slow to introduce domestic legislation that reflects international agreements. In Australia, same-sex marriage is not yet legal. For law to be considered effective, it must be universal, which means it changes constantly and consistently. Justice is achieved through equality, access and fairness. Not allowing same-sex marriage sparks debate within society, particularly as it challenges the law in its attempt to achieve justice. Effectiveness of the law and achieving justice can be sufficiently evaluated and achieved through; the laws enforceability and responsiveness, the protection of the individual rights, meeting of society's needs, the application of the rule of law, resource efficiency, accessibility, and ensuring the law is universal.
In order for the law to be truly effective, it must be both universal and just. Though in regards to same-sex marriage, this is not the case, as it doesn't apply equally to homosexual couples due to past legal responses to this issue. In current, Australian society, we derive our definition of marriage from the 'Hyde v. Hyde and Woodmansee (1866) Wilde JO (later Lord Panzance)'. Mr Hyde was accused of polygamy as he married two different women, who both took legal action against him. Judge Panzane vastly ruled in his rule, that marriage was defined as "the voluntary union of life of one man and one woman, to the exclusion of all others". This definition of marriage is still used in current society, excluding same sex couples from attaining the legal right to marriage as equally as the heterosexual couple. Same-sex marriage has been proposed to the Commonwealth Parliament multiple times, but the government has rejected the bills on all occasions. Marriage, for federal law purposes, is defined as 'the union of a man and woman'. Significantly, another legal response in regards to the universality of laws of same-sex marriage was the Marriage Amendment Act 2004 (Cth). This was defined in statute law as the case of Hyde v. Hyde defined it in common law. Prevention of further dispute about same sex marriage, and finally defining marriage as being between and man and a woman was the purpose of creating this Act. The Marriage Act 1961 (Cth) had not actually defined marriage. The act can be considered an ineffective legal response as it is not only discriminates same-sex couples against their right to marry, but it also prevents the Commonwealth from creating new legislation about same sex marriage; leaving the States to create legislation as they see fit. Just outcome can not be achieved in regards to the individuals, defeating the purpose of the law attempt to be universal. The Australian Capital Territory legalisation of same-sex marriage on the other hand, was annulled by the High Court of Australia on the grounds that only the federal parliament has the constitutional and legal authority to legalise same-sex marriage. "High Court Strikes down on ACT Gay Marriage Law. - Lauren Wilson - The Australian" . This media report speaks of the decision of the High Court, meaning that about two dozen week-old marriages have no legal effect. The ACT Same-Sex Marriage Equality laws passed the territory's...
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