Recently, three Federal ministers attacked the judiciary in Victoria, and for their trouble they received a well-deserved bollocking from that State’s Chief Justice. A retired magistrate and economist has this to say on the matter. His is sage advice to all of us, but as published it also functions as “a word in the ear” to the three ideologically-inspired and ignorant Federal Ministers:
Interfering with a case before the courts, under the Common Law, is clearly improper. Attacking the judiciary undermines the separation of powers in the constitution, so better not to do it.
Their unprecedented attack upon the Victorian state judiciary simply adds further evidence that many of those elected to public office fail to understand the public-legal principles they have, on oath, sworn to uphold. Politics in this polity too is in danger of running out of control
Here is my own comment responding to the same problem, following a piece, “No minister is an island” published a few days ago:
That the court has determined that there is a prima facie case that the statements were sub judice should have been reason enough for these three parliamentarians to resign their seats. They have not done so and thus show themselves to be unfit for public office. They and their party ignore their constituted role as elected representatives which demands wise political conduct that protects the integrity of the courts. That they have not resigned after this statement by the court shows continued contempt and unwillingness, and the continued contempt and unwillingness of their party machine, to discipline themselves according to principles of democratic governance which they, and we their electors, are bound to uphold. There are many other examples of parliamentarians – with Liberal Party Parliamentarians leading the way – assuming that election to parliament gives them permission to “vent” in the way they have done. They may retain their seats but they do so by further eroding public trust in our parliamentary system of public governance, avoiding basic principle in order to continue to blame their opponents for blurring the line of separation between parliamentary power and that of the courts.
Here again, Nurturing Justice repeats what we have been saying again and again in recent posts. Our system of public governance is in deep crisis. The crisis did not arise from Donald Trump’s election, even if his Presidency is a cogent symptom of it. The crisis did not arise from the Ministers’ attack on the Victorian judiciary, but even so that attack is a cogent symptom of a failure to understand the character of parliamentary office and the separation of powers. The inability of the Liberal Party and Queenscliffe Council to prevent the ongoing erosion of public trust from last year’s LGA election is but another symptom of the same polity-wide, if not Western, if not global, political crisis.
In this context, it is somewhat predictable that a Government minister might have his “hairy-chested” views of marriage equality leaked, and so we hear of yet another storm within Canberra’s fragile governing coalition. He has subsequently “apologised” for those comments. Nurturing Justice will not add oxygen to this media frenzy by quoting his initial comments or his servile apology. His conduct does not advance open debate at all. The Coalition’s moves inch by inch, with an eye to media speculation and public opinion polling, toward a policy that will match their political opponent’s promise – the question now is when not if the Coalition will give a “free vote” in Parliament, but that will be after the next election. after they have attempted to prove how principled they have been by holding to the platform on which they were elected. But actually the platform promise to hold a plebiscite was made necessary simply because they have inherited decades of neglect with respect to coherent and comprehensive marriage, household and family policy.
We have previously drawn attention to the 2014 paper “The Territory of Marriage: Constitutional Law, Marriage Law and Family Policy in the ACT Sane-sex Marriage Case” by two qualified jurist Patrick Parkinson and Nicholas Aroney, This is how they sum up the current legal situation.
The future of marriage is now firmly with the federal Parliament. The High Court’s definition of what is within the scope of the marriage power says nothing about what marriage and family policy in Australia ought to be, and there is now no societal consensus on the issue. Australian law on relationships is currently in a complete muddle. In various places around the country, there are marriages, civil partnerships or civil unions, registered de facto relationships, and unregistered de facto relationships, all of which end up being treated in almost exactly the same way as marriages at least once certain thresholds are met (and subject to proof if the existence of the relationship is contested).
Accordingly, Australian law accords almost all the rights and obligations of marriage to any consensual union formed between natural persons without the need to formally enter into, or exit from, that status by means of a ceremony or a court order, and whether or not the relationship was intended to endure. There are almost no eligibility requirements to be treated as being in a de facto relationship other than a prohibition on a few relationships by consanguinity or through adoption. There is no minimum age (although the age of consent may make sexual intercourse within a de facto relationship illegal in some circumstances), no impediment if one is already married to another person,96 no requirement that the relationship be monogamous.97
One of the major problems with the current law is that marriage-like obligations are imposed upon same sex and opposite sex couples irrespective of their intentions, without their consent, and often without their knowledge. When couples break up, one of them may well be shocked to find that he or she is treated for the purposes of property division and maintenance as if he or she had made a commitment to marry – with all that this entails – when this was not what was intended by either of them. One of the issues that needs to be considered very carefully in any principled revision of the law of relationships therefore is the freedom not to be treated as if one were married.
One has to wonder whether our parliamentary representatives have read and understood the competent description of the legal state of affairs by Parkinson and Aroney. Their analysis confirms our suspicion that the political accommodation on all sides to the demand for “marriage equality” has now become a struggle over which “side” will win the contest which is largely symbolic in nature, symbolic in the sense of which party can hold onto power long enough to be able to claim that it was their efforts that ensured “marriage equality.” Few are willing to address the obvious question: what of the rights of those who believe that a legislated “marriage equality” is simply another Governmental mistake and should be treated as such?
But is this not evidence of a glaring political hole in the “marriage equality” banner? Consider: would long-term campaigners for genuine extension of human rights to say citizenship by removing a racial or blood criterion from the legislated definition of citizenship, remain silent about a prevailing juridical muddle concerning citizenship that could already be found alive and well, actively confusing people about the reality of their situation throughout the polity? Why isn’t the muddle with respect to the application of constitutional law, marriage Law and family policy being addressed in systematic public philosophy terms by the politicians who are so keen to see the definition of lawful marriage changed to meet the changing fashion on display in other polities? Well it certainly suggests a prima facie case for our judgment that such politicians are not really interested in such political debate at all, especially when political debate does not hold out the prospect of a greater share of “millennial” votes at the next election. No, the emphasis is well and truly upon sending signals, attending Mardi Gras, wearing lapel pins, aligning one’s search for more votes to reigning pop symbolism.
But there are ongoing public policy issues whichever way the Australian Federal Parliament moves to misidentify marriage to align with the global campaign.
And those who are committed to a Christian political option should be hard at work now to articulate a just set of comprehensive policies of marriage, householding, family life and family nurture for future generations in this polity. This will also need to be formulated with an eye to supporting the peoples of the region, their family structures and their children, as well.
And now the world-wide aspiration for “marriage equality” (backed by corporate dollars, celebrities and “wind vane” Christian clerics, bishops, theologians and scholars), has eclipsed the vital political question of how public justice is due to marriage. Christian leaders who advocate “same-sex marriage” are not talking about justice for marriage. They are not known for articulating what Christian discipleship means for the married couples as citizens. They have been married in their churches, but now the Christian community in many places is further broken by this accommodation to what is a neo-pagan hyper-individualistic ideology. And Christian young people, seeking clarity about how to live in this context are left high and dry.
So, those wanting to see marriage given its due, as part of a Christian political option, will have to reckon with the hard fact that this is a public legal matter. It not only requires an understanding of how marriage law stands at the present time, but involves articulating a comprehensive political view of what a Christian way of life involves. This is an urgent need for public policy development for Christian citizens, churches and schools, business and associations, political parties and unions. These all need to deepen their understanding of how they are part of a Christian way of life. This will involve renewed appreciation of human responsibility, for marriage, householding, family life and nurture. We may say these responsibilities are “God-given” – we need to face up to the fact that our citizenship is one such responsibility, part of the Christian way of life into which we have been called. All indications are that a Christian political option is currently on the road to further marginalisation. Is there any emerging concern among Christians and their churches about the egregious accommodation to same-sex marriage. Is there any growing concern about the public and political implications of Christian discipleship (including therefore a Christian view of marriage) and how they will need to be justly represented in parliament? In fact the ecclesiastical accommodation seems consonant with the view that our parliaments no longer need to hear any political insights that arise from a way of life signposted by the Bible.
But here’s the thing: if we are to make public comment then we have to get fit for doing so, exercising ourselves in unstinting fashion as citizens involved in the task of giving expression to public justice, then we will have to work at it with all we have.
We will do our utmost to present ourselves to God as those who will be approved by what we are doing, having no need to be ashamed, rightly handling the word of truth. (2 Timothy 2:15)
29 June 2017