Will We Achieve Equality?

The recent postal vote has ascertained the general public’s opinion for same sex marriage, with a resounding opinion that marriage equality should be allowed in Australia.

The interesting thing though is, will we achieve equality now that the “yes” vote has been affirmed.

There seems to be lots of discussion on introducing new legislation into parliament that will allow same sex couples to get married.

If new legislation is introduced, and operates in conjunction with the current Marriage Act, the question arises, has equality been achieved. We have the Marriage Act 1961 (the Act) which governs marriage in Australia. As we know, this currently governs heterosexual marriages and specifically negates same sex marriage as per section 5 of the Act.

By introducing new legislation that is specific for same sex couples also introduces different obligations in marriage, and therefore is not equal. To be equal, one would argue that all that is needed is to rework the definition of section 5, which was amended by the Howard government, of the Act to not specifically refer to a man and a woman.

This would then allow both heterosexual and same sex couples to be married under the same Act, and be subject to the same obligations.

There is also a lot of discussion relating to religious freedom, and ensuring that by allowing same sex couples to marry, people should also have the right to religious freedom. This religious freedom is already provided for in the Australian Constitution. Section 116 of the Constitution states:

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.

You will notice that the Government cannot pass laws that prohibit the free exercise of any religion. Therefore, it is implied that each religious organisation can freely exercise their religion. That is, if a religious organisation does not agree with same sex marriage, and does not want to perform the ceremony due to this religious belief, they have every right not to perform the ceremony.

It therefore seems that passing laws to allows religious organisations to be able to freely exercise their religious beliefs is redundant. Furthermore, the government will need to be very careful in drafting such legislation so that it does not offend section 116, and therefore be unconstitutional.

Lastly, it seems highly ironic that religious organisations are worried about their ability to exercise their freedoms, however, are not willing to allow others to exercise freedoms.

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Authored by

Raea Khan

Director Lawyer

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Raea Khan Circle
Director Lawyer
Raea Khan

Raea is Managing Director and Principal Lawyer for PBl Law Group. Raea assists clients with major projects, property developments, construction and strata law.

He has worked in Western Australia and Queensland assisting with expansion projects in the energy and resource sector and now predominately advises clients in Strata and Community Association matters.

He is a member of the Australian College of Strata Lawyers where majority of his work is advising developers and owners corporations with dispute related minor and major defects, strata governance and common property litigation. He is proficient at leading negotiations and meetings.

Raea has a particular interest in the commercial aspect of any dispute and always tries to weigh up the risk, reward and benefit of legal proceedings at each different stage.

Raea enjoys all forms of competitive sport, including Crossfit and actively participates in Triathlons, representing Australia as an age group athlete. He was a member of Red Head Surf Lifesaving club.

  • Strata Law
  • Construction & Major Projects
  • Commercial and Business Law
  • Planning & Environment Law