The 2020 Summit has put the bill of rights question back on the agenda. Cardinal George Pell has come out fighting, opposing a bill of rights in any form. I am more of a fence sitter — I see pros and cons.
So let me consider an instance of the major problem with bills of rights: some judges are tempted to extend their reach, running ahead of the public in forcing a social agenda.
This month, the Californian Supreme Court became the second State superior court in the US to uphold same sex marriage as a constitutional right protected under the State bill of rights. Four years ago, the Massachusetts court had set the first precedent.
Nine other state and federal courts have, with far less media attention, maintained that traditional marriage laws are still valid, there being a rational basis for distinguishing same sex relationships from traditional marriage relationships.
The Californian Court by a narrow majority struck down a State law which resulted from a citizen initiated referendum, stating: 'Only marriage between one man and one woman is valid and recognised in California.'
The Californian legislature had already passed the Domestic Partner Rights and Responsibilities Act in 2003, which gave gay and lesbian couples the same substantive rights and privileges as married couples.
Here in Australia, we are also debating same sex marriage, but without judges buying into the question. Last month, Robert McClelland, the Commonwealth Attorney-General, announced: 'The Rudd Government is delivering on its election commitment to remove discrimination against people in same-sex relationships from a wide range of Commonwealth laws and programs.'
He added that, 'In keeping with the election commitment, the changes do not alter marriage laws.'
Asked whether the government would permit a marriage ceremony for a same sex couple, he replied, 'No, these reforms won't change the Marriage Act ... the government regards marriage as being between a man and a woman, and we don't support any measures that seek to mimic that process.'
There have been tensions between the Rudd Government and the ACT Government on this issue. On 19 May, the ACT Civil Partnerships Act 2008 came into effect. It provides 'a way for two adults who are in a relationship as a couple, regardless of their sex, to have their relationship legally recognised by registration as a civil partnership'.
For the moment, the major political parties in our Commonwealth Parliament have assessed that the community is happy to endorse a raft of measures guaranteeing there is no financial or other discrimination against same sex couples. At the same time they have decided the institution of civil marriage should be maintained as a relationship between one man and one woman who are not closely related.
There are still many Australians who view marriage as a unique institution involving a man and a woman who are usually open to bearing each other's children. Younger Australians may well develop a different view of marriage, not just because of the greater public acknowledgement of gay and lesbian relationships, but also because of the advances in technology which widen the possibilities for shared parenthood.
The state has a legitimate interest in maintaining social contours that enhance the prospects that children will be born into a family unit where there is a father and a mother, where the genetic, gestational and nurturing parents are one and the same.
In debating bills of rights, we need to consider whether contested social reforms like same sex marriage are best resolved by elected legislators acting on advice from law reform commissions, community lobby groups and committees of experts, or by judges making determinations according to open textured provisions of a bill of rights.
For example, is the issue of same sex marriage which divides the Commonwealth and ACT governments best resolved by the political process playing itself out, or by the High Court making a decision whether the restriction of marriage to opposite sex partners is consistent with the ACT Human Rights Act? Some judges might like to force the social pace by deciding homosexual persons in the ACT have an equality right 'to marry' their partners.
On such social questions we tend to track with equivalent societies like the US, but without the social angst we see presently played out in California, where the recent court decision will flow over into the US presidential campaign and will likely result in yet another citizen initiated referendum negating the court decision.
We need to determine the best constitutional/legal/political process for agitating and resolving this and other hotly contested moral and political issues.
There are opponents of same sex marriage who have no desire to discriminate against same sex couples. Without animus or prejudice, they just do not think that a loving, monogamous same sex relationship is the same as their marriage. They see civil and common law marriage as a social institution for nurturing the next generation. They do not see same sex relationships as being primarily about producing and raising children.
Whichever way the debate on same sex, civil marriage ultimately resolves itself, I cannot see that it would be assisted in Australia by judges becoming involved as the arbiters of what is rational and fair. Meanwhile, those of us who do not live in Victoria or the ACT will be able to watch developments with their new bills of rights and decide whether the benefits outweigh the costs on issues less contested than same sex marriage.
This is an edited extract from Frank Brennan's 2008 Institute of Justice Studies Oration, 'Getting the Balance Right after the 2020 Summit'.
Frank Brennan SJ AO is a professor of law in the Institute of Legal Studies at the Australian Catholic University and Professorial Visiting Fellow, Faculty of Law, University of NSW.