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