A right is a power or privilege that a person has a just claim to, that belongs to a person by law, nature, or tradition ( Monk LR 2000). Law reform may occur for various reasons but the most prominent reason for this essay is that politically influential people want it. Law reform occurs by political and legislative processes. Laws are contoured by government policies, basically the government decide that they want to change a law and then they develop a policy to put the changes in place after which they pass laws to ensure that they have acted within the legal powers of the government this process is well known as the policy cycle.
According to the Queensland Divisions Network and Policy Development the term “policy” has different meanings for different contexts and different audiences and is used in a variety of ways to cover many, quite different types of statements, intentions and action. Policy may refer to: ? An authoritative statement by government about its intentions. ? A general statement of intentions or objectives or statement of future intentions ? A framework to guide action.
This essay will explore the reform of the marriage amendment bill and also argue that the bill does not follow the policy cycle that was proposed by Bridgman and Davis. The marriage amendment bill of 2004 was introduced to the House of Representatives on 27 May 2004 and came into force on 13th August 2004. The bill proposed to fix the Marriage Act 1961 to define ? marriage’, to deny same sex couples from adopting children from overseas countries, and, prevent the recognition of same-sex marriages in Australia, even where the marriage has been performed under the laws of another country which does recognise this type of union.
To protect against any changes to Australian laws, the federal Coalition government in 2004 adjusted the Commonwealth Marriage Act to state clearly, that marriage in Australian law is between a man and a woman. The amendment came about after the Federal Government put pressure on the parliament to address issues raised by society about concern relating to the possible disintegration of the institution of marriage. The policy cycle as explained by Bridgman and Davis consists of the following
steps: 1) to formulate the problem 2) set out objectives and goals 3) identify decision parameters 4) to search for alternatives 5) to propose a solution or options If using the policy cycle as a basis for policy reform the ban on same sex marriage does not follow the cycle accurately. The problem was formulated which was that according to the orthodox definition of marriage which is a union between a man and woman, same sex marriages do not fall under that category.
The objectives and goals to abolish the notion of same sex marriages were then set out. Then the decision parameters were identified as to how to go about putting these regulations into act as soon as possible. The last two stages of the policy cycle were not implemented that is; to search for alternatives and also to propose a solution other than banning same sex marriages or the recognition of same sex marriages performed in countries where legislation approves it.
In Tasmania and NSW there have been unusual developments, there has been a Same Sex Marriage Bill of 2005 and two other Bills that have been introduced into the state parliament with respect to the making, termination and of same sex marriages. The approach by the federal government may have made it possible for states to legislate for same-sex marriage now that the federal government has specifically only legislated for different-sex marriage ( Beard Grevis 2005). In conclusion as law reform occurs international human rights law has also deepened and international conventions have been created which protect peoples rights.
Article 26 of the International Covenant on Civil and Political Rights, ratified by Australia, in 1980, states: ? All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
‘ This Article, if given its effect in domestic Australian law, would therefore be that all persons are equal before the law and entitled to equal protection of the law. The final words “other status” encompass a person’s sexuality (Beard Grevis 2005). Taking this into account the amendment of the marriage law does not account for the above article. Therefore in my opinion neither is the ban on same sex marriage justifiable nor does it follow the stages of the policy cycle.