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The development and reform of laws relating to same-sex relationships have effectively reflected societal values. The reform of the Adoption Act 2000 to the Adoption Amendment
Act (Same Sex Couples) Act 2010 reflected societal values to a degree but lacked responsiveness and struggled to balance religious tensions. The reform of the Marriage Act (1961) to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 effectively reflected societal values, however, it also struggled to balance religious tensions.
The laws relating to same-sex parents and their children have developed over time to reflect society and its values to an extent, however, there was great ‘law lag’ and the legislation struggled to balance tensions between societal groups. The Adoption Act 2000 was reformed in 2010 and the Adoption Amendment Act (Same Sex Couples) Act 2010 was passed. Previous to the reform, under the Adoption Act 2000, the nonbiological parent of a same-sex couple could not adopt their partner’s biological child, and only married heterosexual couples could adopt a child. According to the Australian Bureau of Statistics ‘Between 1996 and 2011, the number of same-sex couples more than tripled.’ Within the same period, the acceptance of same-sex couples in Australia rapidly increased. There were clear changes in the social values of the Australian population that agitated for reform of the Adoption Act 2000. The NSW Law Reform Commission undertook a review of the Adoption of Children Act 1965 and subsequently recommended an amendment enabling adoption by same-sex couples. However, the amendment was not included in the Adoption Act 2000. Furthermore, the Convention on the Rights of the Child (CROC), an international treaty ratified by Australia, was a strong mechanism for the reform. Section 7(f) of the Adoption Act 2000 states ‘adoption law and practice complies with Australia’s obligations under treaties and other international agreements’. However, ‘parent’ is never defined in the CROC, and it is accepted that there is no reason to assume it is limited to one’s sexuality, as specific wording such as ‘heterosexual’ is never included. The Adoption Act 2000 does not comply with the CROC’s key principles. As stated by the Castan Centre for Human Rights Law, “the Adoption Act in its present form arbitrarily discriminates against same-sex couples purely based on their sexuality, rather than their ability to provide a stable and loving home for a child.” Through the effective work of agencies such as the Law Reform Commission and reports surrounding the CROC, the evident flaws in the legislation were recognized and the Adoption Amendment Act (Same Sex Couples) Act 2010 was passed.
However, after the passing of the act, there was community backlash and evident tension between religious groups and the requirements of the legislation. By including adoption rights in the anti-discrimination laws, Christian adoption agencies had to legally comply with the legislation by working with same-sex couples. Many felt this went against the religion and felt an amendment was necessary. Penny Sharpe, a parliamentary secretary, stated in a blog post that there were ‘hundreds of emails, letters and phone calls for and against the bill’. Jim Wallace, managing director of the Australian Christian Lobby Group stated in the Sydney Morning Herald (2010) “The New South Wales Government is not putting the interests of the child first. How can giving children to very demanding gay rights activists for a moment be in the child’s best interest? By nature, it is a man and a woman who can give birth to a child. That is the natural family.” Wallace’s statements represent many, with adoption agencies such as Anglicare that argued they would stop providing adoption services if they had to assist homosexual couples. This backlash triggered a further amendment to be made to the Adoption Amendment Act (Same Sex Couples) Act 2010 in which adoption agencies can choose to not work with homosexual couples and each case can make preferences relating to sexuality. Overall, the reform of the Adoption Act 2000 failed to reflect the values and attitudes of society at first. However, later amendments to satisfy community standards of religious groups have increased the level of success in reflecting society.
The reform of the Marriage Act (1961) to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 was successful in reflecting societal values, however, there was some community backlash despite the reform’s aim to ease tensions. Australia’s changing social values and recognition of the discriminatory nature of the Marriage Act (1961), were the driving forces for this reform. In 2015, 66% of Australians supported same-sex marriage (Australian Institute of Family Studies, 2018). Agencies such as the Australian Human Rights Commission released reports demonstrating the need for reform based on the breach of individual rights. In the AHRC 2015 report, ‘The Australian Human Rights Commission considers that the fundamental human rights principle of equality means that civil marriage should be available, to all couples, regardless of sex, sexual orientation or gender identity.’ International law agitated for reform, as the requirements of the Marriage Act (1961) breached the International Covenant on Civil and Political Rights (ICCPR), a treaty Australia ratified in 1980. Article 2 of the ICCPR requires ‘state parties to ensure all individuals are to enjoy the rights set out in the ICCPR without discrimination’, with the right to marry being included. The combination of these legal and nonlegal mechanisms effectively placed pressure on the Abbott government to promise a plebiscite on the issue of same-sex marriage. In 2017, a postal survey was issued to determine if the Australian public supported the question ‘Should the law be changed to allow same-sex couples to marry?’. According to the Australian Bureau of Statistics (2017), 61.6% voted yes and 38.4% voted no. The media and society were responsible for agitating the social change, with ‘Over 1 million calls made by Australians in an attempt to convince others to vote yes and support same-sex marriage’, (2017, Marriage Equality Australia). The results led to the passing of the Marriage Amendment (Definition and Religious Freedoms) Act 2017, in which same-sex couples held the right to not be discriminated against or denied the right to marriage. This reform was driven by the changing values of society and therefore effectively reflects society.
Opposing this, the reform and passing of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 saw community backlash from religious groups despite the act’s efforts to balance these tensions. The legislation allows a religious celebrant to choose to marry people in line with their religious beliefs. In the lead-up to the postal vote, Tony Abbott stated “If you’re worried about religious freedom and freedom of speech, vote no’ (SMH, 2017). Furthermore, the Australian Christian Lobby released its ‘No’ campaign, advocating that law reform enabling same-sex marriage will result in forced sex and gender education programs. These community concerns about protecting religious freedom triggered a large community outcry against the reform through the media. An ABC article (2018) included the following; ‘Senator Bernardi claimed same-sex marriage was a ‘radical gay sex agenda’ which threatened children. Additionally, Bronwyn Bishop compared same-sex marriage to bestiality and killing infants.’ The efforts of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 still failed to balance the ongoing tension between same-sex equality and religious beliefs. However, factors such as the results of the postal vote are evidence of the reform following the views of the majority. Therefore, the reform effectively represented societal values.
The development and reform of laws relating to same-sex couples have been moderately effective in reflecting society. The law reform that allowed same-sex couples to adopt was unresponsive and struggled to balance tensions, however, reflected society and its changing values. The law reform that enabled same-sex couples with the right to marriage was driven by society and their values, therefore it was very effective in representing society despite the backlash from religious groups.
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