Essay on Is Same Sex Marriage Legal in Australia

Family law is the body of law about marriage and matrimonial issues. Its main aim is to protect each member of a family, whether that family is nuclear, de facto, single parent, Aboriginal or Torres Strait Islander, or blending in nature, as family is the foundation of society. Whilst legal reforms over the past decades have made a conscious effort to reduce domestic violence, particularly against children, these responses have only had limited effectiveness with nonlegal measures which can often be considered more effective in achieving long-term societal changes. The law continues to languish being society's changing values, especially about same-sex relationships, surrogacy and birth technologies, and the changing nature of parental responsibility.

The legal recognition of same-sex relationships in Australia has evolved dramatically since the 1980s to a point where most jurisdictions provide same-sex couples with the same rights and obligations as heterosexual de facto couples. The recognition of homosexual people was first reflected in 1982 through the insertion of Part 4C in the Anti - Discrimination Act (NSW). At the federal level, the 1984 Federal Sex Discrimination Act (Cth) was enacted. Demographically, Australia is continuously developing into a more secular society, resulting in the waning influence of the Christian Church on the political front. The 2014 Amendment to the 1961 Federal Marriage Act which defined marriage as the legal union between a man and a woman, was described by many as “enshrining the institution of marriage”, and is only reflective of the views held by more conservative and religious members of society. The refusal to enact the same-sex marriage bill which was introduced by the Green in 2005 means that Australia is not responding to its international obligations. Article 26 of the ICCPR states that “all persons are not to be discriminated under the law regardless of their sexuality.” Individuals argue that the covenant is not legally binding in Australia which means that there is no need to enshrine marriage equality into law. This gives the idea that the international covenant highlights international perceptions of equality and fairness, they are ineffective in ensuring that all rights of individuals are upheld in the law of its signatory nations. This is due to signatory nations choosing to not implement all terms of the covenant into their domestic law. This further demonstrates that while society moves ahead, Australian law continues to languish as current legislation does not reflect the international community and society's values towards same-sex couples.

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Technology continues to grow at an extreme rate, however, laws governing the use of such technologies in some areas are failing to keep pace. This includes surrogacy and birthing technologies. Technology is now allowing women who are unable to conceive to start a family. Commercial surrogacy is illegal in NSW under the Assisted Reproductive Technology Act (2007), and it is illegal under the 2010 Surrogacy Act to partake in surrogacy overseas. There have been many organizations that have opposed surrogacy on a moral ethic, claiming that it would pave the way for an individual to “order” a baby. People have also embraced this technology, claiming that it allows women and homosexual couples a second chance at having a child if they are unable to have a child naturally. One type of surrogacy can include altruistic surrogacy, unlike commercial surrogacy this type involves no monetary payment or financial gain to be made available to the gestational carrier and therefore ensures that women do not exploit their bodies in the manner of financial assistance. Altruistic surrogacy is legalized in NSW under the Surrogacy Act 2010 to accommodate the views in society that believe that technology is beneficial for women who can't seem to conceive naturally. Furthermore, the Adoption Amendment (Same - Sex Couples) bill was passed in the NSW parliament in 2010. This has made it exceptionally easier for homosexual people to start a family by employing a surrogate, as both sides can apply to adopt the child of the biological parents. This shows to society that law has taken many years to be codified, it is evolving to reflect society's values by allowing this technology to be accessed by all people in the community, regardless of sexuality. This demonstrates that the law is trying to keep up with the evolving societal values in an ever-changing world.

The law has responded to society's changing views in the area of parental responsibility over time, as this can be extremely time-wasting Australia is trying to improve this throughout time. There has been a major shift in the view of parental rights to control their children to a view of parental responsibility. In 1990 Australia ratified the Convention on the Rights of the Child (CROC), which reflected immensely on the changing views of society. This has not been fully recognized in Australia through legislation and state legislation such as the Children and Young Persons (care and Protection) Act and the Children (Protection and Parental Responsibility) Act. Under this legislation, NSW police have the power to take children home if they are at risk of being involved in any kind of abnormal behavior. This then gives the view that the child is concerned about authorities. This then encourages the responsibility of parents to their children, as it allows the parents to have responsibility for their children and teach their children the necessities of life. On a federal level, the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) was changed, allowing for greater emphasis on shared parental contact and parental responsibility in broken families. The obligation to take responsibility for the care and financial support of a child is considered to be one that should be met by both parents and this legislation codifies this belief into the law. The effectiveness of this legislation can be adversely affected when a parent manifestly fails in their responsibility to their child. For example in the case of Keisha Abrahams, the Department of Community Services (DOCS) has been informed several times of the danger that this child was in under the care of her mother and her stepfather, however due to DOCS being under resources, they failed to act, this then resulted in a brutal murder. If DOCS had been better in taking action on this case, Keisha's biological father might have had full custody over her which may have prevented her from being subjected to neglect. Therefore, it can be seen that although the law is reflective of society's values in this instance, it has failed to achieve the adequate care and protection needed for children.

Overall the law has responded to the contemporary issues concerning surrogacy and birth technologies, as well as the changing nature of parental responsibilities and is still beginning to improve on the recognition of same-sex relationships. The law has not been as effective as it could be as shown in the Keisha case where DOCS did not take action on this case, which then resulted in a bad result of the murder of Keisha. The law slowly meeting society's needs through same-sex marriage and slowly legalizing surrogacy in NSW. Furthermore, the law needs to increase its speed of taking action and needs to discuss an easier way to access bills quickly and efficiently.