Honours Thesis - Elodie Cheesman.pdf

76 attorney general cth v kevin 2003 30 fam lr 1 31

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76 Attorney-General (Cth) v Kevin (2003) 30 Fam LR 1, 31 (Nicholson CJ, Ellis and Brown JJ). Extra-curially, the Honourable Alastair Nicholson has argued that ‘it is not procreation that defines a family relationship, but the commitment and financial and emotional interdependence of family members’: The Hon Alastair Nicholson, ‘The Changing Concept of family – The Significance of Recognition and Protection’ (1997) 11 Australian Journal of Family Law 13, 18. 77 Attorney-General (Cth) v Kevin (2003) 30 Fam LR 1, 66 (Nicholson CJ, Ellis and Brown JJ). 78 See Family Law Act 1975 (Cth) s 51; Marriage Act 1961 (Cth) ss 23, 23A, 23B. The common law defence to rape within marriage has also been rejected: PGA v The Queen (2012) 245 CLR 355. 79 Re Patrick: An application concerning contact (2002) 28 Fam LR 579, 650 (Guest J).
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18 children through IVF. 80 Moreover, federal reforms in 2008 removed provisions from the Family Law Act 1975 which discriminated against same-sex parents. 81 Significantly, there is also popular support; latest polls indicate that 64% of the Australian public are in favour of same-sex marriage. 82 These developments illustrate that marriage was and is a changing institution. In the contemporary context, both society and the law recognise that marriage may be based on a myriad of reasons, including romance, companionship, financial stability and creating or supporting a family unit. None of these grounds normatively or in fact disqualify same-sex couples. The Technological/Scientific Development Analogy In considering the ‘legal term of art’ approach, some authors seek to analogise the Marriage Power with construction of powers concerned with technological developments. Indeed, Brock and Meagher draw attention to the High Court’s use of the approach in construing the Intellectual Property Power s 51(xviii). 83 In Grain Pool , the majority said of intellectual property rights: ‘Given the cross-currents and uncertainties in the common law and statute at the time of federation, it is plainly within the head of power in s 51(xviii) to resolve them. It is also within power…to determine that there be fresh rights in the nature of copyright, patents of invention and designs and trademarks’. 84 80 Same-sex couple adoption was made available in the Australian Capital Territory in 2004, New South Wales in 2010, and Western Australia in 2002: Parentage Act 2004 (ACT) sch 1 pt 1.2, Adoption Amendment (Same Sex Couples) Act 2010 (NSW), Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA) s 6. South Australia is currently the only jurisdiction in Australia to ban fertile single women and lesbians from accessing IVF treatment. However, on May 4 2012 the Assisted Reproductive Treatment (Equality of Access) Amendment Bill 2012 (SA) was passed by the Legislative Council. The Bill now makes its way to the Legislative Assembly. 81 Above n 10. 82 August 2012 (Galaxy poll), up from 57% in December 2011 (Fairfax/Nielsen poll): (Author unknown), ‘Marriage equality: the facts’, The Sydney Morning Herald (online), 29 April 2013 < - news/marriage-equality-the-facts-20130429-2ind6.html >.
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