Same-Sex_Relationships

“To what extent does the law reflect moral and ethical standards of Australian society in relation to family members'” “The International Covenant on Civil and Political Rights calls on countries to respect and ensure the rights of all their people ‘without distinction of any kind.” Our law is a reflection of the ethical and moral values of the society in which it is developed. It becomes difficult when people agree it is good, but question what is right. This falls under the belief of public and private morality and the understanding of ethics. Public morality is constantly changing and what may once been considered to be immoral may, over time, come to be considered acceptable and therefore the law is constantly changing to reflect these morals. Until the last decade of the 20th century it was a crime to engage in homosexual activity, however due to the changing public morals the law was changed and homosexuality was no longer considered an illegal act. Homosexuals are still unequal under the law in some areas but the changing moral and ethical standards of Australians are slowly being reflected through the law. Homosexuality is an issue in Australia that previous generations have not wanted to acknowledge. There have been a growing number of same-sex couples in Australia since 1996 as evident on the graph, therefore Australians are more aware of their rights and have come to accept them. Homosexual union in not recognized as a marriage in Australia as the legal definition of marriage, under the Marriage Act 1961 (Cwlth) later amended to The Marriage Amendment Act 2004 (Cth) and the Family law Act 1975 (Cwlth) and both in statute and in the original British common law, is ‘the voluntary union of a man and a woman to the exclusion of all others and for life’. However, in article 2 it discusses that due to the changing moral and ethical standards of society into accepting homosexuals and believing that their union should be recognized under the law, the legislation should be amended. This has also created enormous problems for homosexual couples, such as the right to inherit a partner’s estate, but with the introduction of the Property (Relationships) Legislation Amendment Act 1999 (NSW) it overcame some of these problems. Prior to the Act, if a partner in a homosexual relationship died interstate, it was difficult for the surviving partner to inherit the estate and had to rely on the Family Provision Act 1982 (NSW) as in Andrews v. Howard (1999) NSW. With the changing moral and ethical views of society in regards to accepting homosexual union, the ACT attempted to pass the Civil Unions Bill 2006 (ACT), to allow homosexual civil unions, which would grant same-sex couples the same legal status as married couple. However, the federal government blocked this legislation, arguing that it conflicted with the Marriage Act 1961 and was therefore invalid. On the other hand, NSW has recently created a relationship register offering unmarried couples greater legal entitlement and easier access to government services, entitlements and records (Article 1). Until 2003, the Crimes Act 1900 (NSW), s. 78K, specifically stated that: “A male person who has homosexual intercourse with a male person of, or above the age of ten years, and under the age of eighteen years shall be liable to penal servitude for life.” This was due to the moral and ethical standards held by Australians, about the inappropriateness of male homosexuals engaging in sexual intercourse and the public perception that sexual intercourse should be between a man and woman. Males may now engage in heterosexual and homosexual sex from the age of sixteen. In 2003 the NSW Parliament passed the Crimes Amendment (Sexual Offences) Act 2003, which equalised the age of consent for both heterosexual and homosexual sex. In the past, society’s morals and ethics were that a man and woman can only raise a family or adopt a child and this was reflected in the law. Homosexuals struggled to gain access to surrogacy and adoption. Section 19 of the Adoption Act 1965 (NSW) prohibited homosexual couples from adopting children. The Act defined the ‘persons in whose favour adoption orders may be made’ as a husband and wife, or a man and a woman living together as husband and wife on a bona fide domestic basis although not married. A homosexual person was allowed to adopt a child but if they had a partner they would not be recognized as a parent. However, society’s moral and ethics changed as they felt that adoption should be entitled to everyone no matter what their sexual identity is. As evident in Article 5, The Adoption Act 2000 (NSW) now the Adoption Amendment Act 2008 was created and it changed the focus of adoptions much more towards the children. Section 7 emphasises that the adoption must proceed on the basis that the best interests of the child are paramount. The child’s wishes are to be considered (s. 8), as adoption is ‘to be regarded as a service for the child, not for adults wishing to acquire the care of the child’. The law has also been amended to reflect the changing morals and ethical standards of Australians as they believed homosexuals should be entitled to same rights in the workplace. The New South Wales Industrial Relations Commission pursued two test case (Family Leave Test case (1994) 57 IR 121and Personal/Carer’s Leave Test Care (1995) 62 IR 48), which recognized that gay or lesbian employees are entitled to use sick leave entitlements to care for same- sex partners who live with them as their de facto partner on a bona fide domestic basis. In Toonen v. Australia (1994) where Nicholas Toonen complained to the Human Rights Committee that Tasmania’s prohibition of male homosexuality directly violated an individual’s right to privacy under article 17 of the ICCPR. The HRC found in favour of Mr. Toonen, but Tasmania still didn’t change its legislation. Therefore the Australian Government intervened, using its power under s. 109 of the Constitution to legislate and override Tasmanian law. The legislation introduced by the federal government was the Human Rights (Sexual Conduct) Act 1994 (Cwlth). Its aim was to override any anti-homosexual legislation by declaring it an arbitrary interference in the right of individuals to privacy. Therefore, the law was effective in reflecting society’s morals and ethical standards of everyone being treated equally before the law. There are a number of commonwealth and state legislation that reflect society’s morals on same-sex relationships. Society’s views have changed and it now accepts homosexuals and believes they shouldn’t be discriminated against. In NSW anti-discrimination legislation is centred on the Anti Discrimination Act 1977 (NSW); which states that “it is unlawful for a person, by public act. To incite hatred towards, serious contempt for, or severe ridicule of, a person on grounds of the homosexuality of the person or members of the group.” Commonwealth legislation include The Human Rights and Equal Opportunity Commission Act 1986 (CWLTH) prohibits breaches of human rights and discrimination in employment on specific grounds, including sexual preference. The law has been effective in reflecting society’s values of everyone having the right to be treated equally under the law. Therefore it can be seen that the law has been reforming to reflect the majority of society’s morals and ethical standards in relation to same-sex relationships.