Submission to Australian Inquiry Relating to Marriage

I missed the deadline (damn timezones) for submitting my comments relating to the Australian Senate Inquiry, so I decided to post it here.

Committee Secretary
Senate Legal and Constitutional Affairs Committee
PO Box 6100
Parliament House
Canberra ACT 2600

By email:

Subject: The matter of a popular vote, in the form of a plebiscite or referendum, on the matter of marriage in Australia

I am writing to you to oppose efforts to put to the Australian people a popular vote, in the form of a plebiscite or referendum (as outlined in the Marriage Equality Plebiscite Bill 2015). The following reasons are provided to support my position.

1. I am Australian citizen residing in the United States of America with my husband (an American citizen). We married on March 5, 2013 on our 14th anniversary of being a couple. This year we celebrated our 16th year together. We chose to marry in Canada due to their progressive laws relating to same-sex marriage. Since the decision of the United States Supreme Court in June 2013, I am now a holder of a Permanent Resident Card (“Green Card”) based on my marriage.

2. Section 51 (xxi) of the Constitution of Australia prescribes that marriage is a legislative power given to the Commonwealth Parliament. The federal parliament enacted legislation under this authority to regulate marriage (Marriage Act 1961), and subsequently amended that legislation to limit marriage to between one man and one woman. No plebiscite or referendum was conducted to limit the definition of marriage under the Howard Government.

3. While some attempts to circumvent this Constitutionally mandated power, the High Court of Australia reiterated the federal parliament’s authority in December 2013, when it ruled:

“The status of marriage, the social institution which that status reflects, and the rights and obligations which attach to that status never have been, and are not now, immutable. Section 51(xxi) is not to be construed as conferring legislative power on the federal Parliament with respect only to the status of marriage, the institution reflected in that status, or the rights and obligations attached to it, as they stood at federation.”

4. Simply put, the Constitution gives the power to the Commonwealth parliament to regulate marriage laws. Based on this fact, there is no legal basis for a referendum, as there is nothing to change in the Constitution. If the Australian people were to be asked to delegate this Constitutional authority to the States and Territories, this would require a referendum.

5. As mentioned above, no plebiscite was conducted when the Howard Government amended the Marriage Act in 2004 to define marriage as “exclusive union of one man and one woman, to the exclusion of all others.” Given that the Commonwealth has already acknowledged that they have the authority to enact legislation relating to marriage, it can only be seen as a tactic to delay efforts to amend the Marriage Act to recognize same-sex marriages.

6. Living in the United States, I have not only studied the impact that popular votes on social issues can have on a state and country, but I have been impacted by these since moving here. In November 2005, voters in the the State of Texas approved a Constitutional Amendment to write discrimination into their governing document, by defining marriage as between a man and a woman. This impacted me directly as this precluded my husband from providing support for health insurance, it limited my access to my husband if he were to be in hospital and penalized us in the areas of taxation and superannuation. Even though the United States Supreme Court has made its rulings in relation to same-sex marriage (or marriage equality), this discriminating language remains in the Texas Constitution.

7. I would argue that putting a social justice issue to a popular vote can (and will) have a very negative effect and impact on a society (as can be seen by actions of other countries around the globe). While the champions of this may share that this is the only true way to gauge the support or opposition of the Australian people, this is most likely not the intent. If politicians supporting this measure are really interested in the Australian people’s view, the parliament could approve consideration of a plebiscite to be held concurrently with the next federal election (which would have the benefit of saving a vast amount of public dollars). I believe if given the opportunity to vote for a plebiscite and their representative at the same time, issues like this would no longer need the attention of a Senate Inquiry.

8. Finally, and more importantly, as an Australian I am ashamed  that my country has fallen behind so dramatically on this one issue. Australia remains one of a small number of  developed nations that still does not offer this basic human right to all its citizens. Where Australia has been very progressive in the past with laws that include same-sex couples, I now have the dilemma that when my husband and I travel home (as we plan to do for the holidays), my relationship status with him changes when we land on Australian shores. I will be considered a second-class citizen compared to others arriving who are also married. That is simply not Australian, and it is most definitely not something that I, or any other Australian, deserve. We deserve better from our elected representatives.

I urge you to oppose any efforts to move forward with a plebiscite or referendum on this issue. It is not warranted, nor needed, nor the right thing for Australia.

James Nunn