Attachment 1: Basic assumptions:
- The countries where most people would like to live are those that
a) give their citizens an opportunity to participate fully in the governing of their country
b) treat their citizens respectfully by rule of civil law that is transparent, fair and unbiased
c) ensure that civil law takes priority over religious law,
d) uphold civil and human rights, and
e) balance the personal freedom of its citizens with legal structures for the common good (whether that relates to citizens physical, mental and social well-being, property, education, work, transport, housing, environment etc.)
- Most Australians expect our government to uphold Australian civil law over religious law (e.g. chopping off a hand for theft) or cultural practices that may apply in other countries (e.g. honour killings)
- Most Australians, if they ever read Section 116 of the Australian Constitution:
“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”
would assume, that this section was designed to ensure
a) a separation of church and state
b) a person’s religion would not be grounds for discrimination against them
but not to
c) give religious law or beliefs greater power or status than civil law.
- Most Australians would assume – one nation, one Marriage Act - one basic set of criteria for all couples seeking and being married. That is:
a) The same criteria to be able to be married – of adult status/ marriage age, not married to another person, giving free and un-coerced consent, length of notice etc.
b) The same criteria in the marriage ceremony – two witnesses, all parties in the same room, the authorised person ensuring those present know a marriage according to civil law is being conducted, an indication by both parties that they consent to marry one another
c) The same basic legal training, professional development and regulation of those people holding “public trust under the Commonwealth”
- The Australian Marriage Act was based upon British law, developed from a Western Christian tradition where marriage until the 1500’s was a private secular (civil) function without witnesses.
- Religious (Christian) celebrants, being the educated people in a community, became involved primarily to record marriages, before the advent of a national registration system in the early 1800s.
- The Australian Marriage Act 1961, which was practical and easily understood by non-lawyers when first drafted, is in need of review to ensure that ad hoc changes since its enactment, are consistent and appropriate for a modern multi-cultural Australia.