Discrimination in the Australian Law of Marriage - Literature review Example

of the of the of the Discrimination in the Australian Law of Marriage The Australian legal systemis based on English law. This creates substantial difficulty for the Indigenous peoples, whose traditional laws are vastly different from English law. These traditional laws are better suited to the culture and traditions of the Indigenous peoples; and English law is at best a poor compromise. These laws define a de facto partner as a person who lives with another individual, in a relationship that is patently domestic, despite there being no marriage between these persons (Committee). This distinction engenders discrimination against the Indigenous peoples, in the context of the laws relating to marriage. The utmost importance is attached to the family in the family law of Australia. All the same, individual freedom is deemed to be superior to filial and communal obligations. This is in marked contrast to the values customary amongst the Indigenous, who attach greater importance to communal values. This extended connotation of a family encompasses a large array of relatives. Thus, the family structure incorporates a vast network of relatives; and every couple is accountable to this comprehensive family, in addition to being obliged to their children and each other (Parkinson, 1994: 478). Thus, the effect of a marriage among the Indigenous people, is not confined to individuals, and has significance for the concerned families. There is scant regard, among the tribal Aboriginal communities, regarding the Marriage Act 1961. Thus, nearly 90% of the marriages are not performed under this Act. Nevertheless, these traditional Aboriginal marriages are authentic and possess the approval of their community. Moreover, such nuptials are characterized by a fair degree of permanency (Parkinson, 1994: 480). However, a difficulty has been envisaged in according recognition to traditional Aboriginal marriages, under the Family Law Act. If these marriages were to be recognized, then they would also be subject to the laws of divorce. The latter is a notion that has no equivalent in the traditional culture, and this could have a malevolent effect upon their culture. In addition, such recognition would require the State to become a party to enforcing promises to marry. This could prove to be onerous, as a promise to marry, in the tribal Aboriginal sense, is anathema to what the western culture believes, regarding consent to a marriage (Parkinson, 1994: 480). The care of children, whose parents had separated, emerged as a significant problem in Australian society. In order to adequately address this difficult problem, the Family Law Act was amended in the year 2006. On the 28th of January 2010, the Australian Government released three reports that focused on the 2006 reforms to the Family Law Act. These reports have categorically declared that the family law mechanism in Australia leaves much to be desired (YWCA Australia, Women’s Legal Services NSW and Kingsford Legal Centre). For instance, the legal system was seen to have failed, in this regard, on many occasions. These were instances of domestic violence, and there was an absence of an effective response to the violence against women and children. The situation was seen to be far worse, with regard to Aboriginal and Torres Strait Island women. With regard to this group, these three reports, had merely cast a cursory glance at their problems (YWCA Australia, Women’s Legal Services NSW and Kingsford Legal Centre). The law relating to marriage in Australia is enacted, only by the Commonwealth Parliament. However, Western Australia retained the necessary legislative power to deal with family matters, peculiar to its Indigenous peoples. It has been the practice to equate a traditional Aboriginal marriage with a de facto relationship; where a de facto relationship connotes a relationship, in which a man woman cohabit as husband and wife, without being legally married to each other (Aboriginal Customary Laws The interaction of Western Australian law with Aboriginal law and culture FINAL REPORT). This is galling for the Aboriginals, who vehemently oppose such classification. It is their contention that the dignity and traditional status of a traditional marriage is seriously compromised, by treating it as a de facto relationship. There is considerable opposition, amongst the Indigenous peoples, due to the degradation of their institution of traditional marriage to that of a de facto relationship. Moreover, such classification engenders serious drawbacks. The laws of the State and Territory have adopted an approach to de facto relationships that could at best be described as clumsy and ill advised (Recognition of Traditional Marriages as De Facto Relationships). This legislation is applied in an arbitrary manner, in respect of the relationship selected. In addition, coverage in certain areas is grossly insufficient, and the indications are that this sorry state of affairs will continue. Moreover, it would be fallacious to presume that the different States in the nation will provide or continue to provide the same protections and benefits of a marriage to de facto relationships (Recognition of Traditional Marriages as De Facto Relationships). The New South Wales Law Reform Commission recommended changes to the extant law, so that the inequity in some areas could be mitigated. This was a departure from the other States which were in favor of equating traditional Aboriginal marriage with de facto relationships (Recognition of Traditional Marriages as De Facto Relationships). There is much that is wanting with the law in the Australian States. The prevailing legislation addresses the informal relationships that subsist among the members of society, in general. There is no attempt to specifically deal with traditional marriages, among the Indigenous communities. For instance, the laws of South Australia address issues related to competition betwixt de facto relationships and marriages under the Marriage Act. However, even these limited initiatives have proved to be of limited applicability, and there are a number of issues that have been ignored. One such issue relates to the applicability of such provisions to instances, where a person has more than one de facto wife. This serves to support the contention that State legislation is unsuitable for addressing the requirements of traditional marriage (Recognition of Traditional Marriages as De Facto Relationships). The term family can be defined as a fundamental and natural social unit that specifically undertakes the edification and guardianship of dependent offspring. It is a fundamental tenet of any society that the state should interfere with a family, to the least extent possible. As such, involvement with the internal affairs of a family is justified, only when its vulnerable members, like women and children are to be protected (Family law in Australia). This state of affairs is also prevalent in Australia, wherein the laws of the various States, have some such provision. The Aboriginal customary law may appear to be in breach of the anti-discrimination law, which abolishes all differences on grounds of race. However, the International Court of Justice had opined that the legal principle of equality before the law did not imply that everyone was to be treated in the same manner, regardless of the individual circumstances (Challenging Customary Law myths and misconceptions). Thus, in some cases, the courts do not strictly adhere to the rule of equality before the law. Moreover, favorable discrimination can prove to be beneficial to communities that are in a minority or that are economically and socially lacking in development. Thus there have been a number of affirmative steps to improve access to human rights for vulnerable groups, such as women, ethnic minorities, indigenous people, disabled people, and economically disabled people (Challenging Customary Law myths and misconceptions). In Australia, the Racial Discrimination Act 1975 (Cth) is the first anti-discrimination law. The fundamental objective of this Act is to ensure that all the people have equal opportunities, and are equal before the law. It protects people from discrimination on the basis of race, color, descent, nationality, origin, ethnicity, and immigration (Australian Human Rights Commission). However, discrimination is prevalent in matters pertaining to many aspects like family life, reproductive rights and the health of aboriginals. In Castles v Secretary to the Department of Justice, the Supreme Court of Victoria held that the plaintiff was entitled to receive IVF treatment under the provisions of the Section 47(1) (f) of the Corrections Act 1986. It stated that the provisions of this Act entitled prisoners to be treated with humanity and with respect to their human dignity. Prisoners have a right to require the provision of a variety of facilities, goods, services and conditions to ensure their health (Castles v Secretary to the Department of Justice). In addition, the Australian discrimination law was founded on the basis of various international discrimination laws. The legislation of the US has had a profound influence on Australian discrimination law. Australia has ratified several international treaties on human rights, and as a result it has a number of human rights obligations to fulfill. Australia is a signatory to the International Labor Organization Agreement No 111, 1958; which defines discrimination as any distinction, exclusion or preferences on the grounds of race, color, gender, ethnic origin, nationality, political views, and national extraction (Law Reform Commission). The Aboriginal people lived in an ideal manner, in idyllic surroundings, until the invasion of the Whites. Their families lived together in a community, and shared responsibilities. Individual family members were active in promoting the welfare of the entire tribe, and the elderly attended to child rearing, cooking and transmitting knowledge to the children. After the invasion, the Whites oppressed and brutally murdered the Aboriginal people (Walker). This resulted in a lack of trust among the Aboriginal people; towards the White people. Kinship is an important facet of Aboriginal society, and the courts have been aware of this. However, the judiciary has been seriously hindered by the Family Law Act, which imposes rigid constraints. Thus, the courts have to accept that they have to take decisions that are grossly unjust to the Aboriginal mothers (Graycar & Morgan, 2002: 283). For instance, in Ln re CP, the court was at pains to stress that the Family Law Act prevents the recognition of arrangements related to Indigenous caregiving. In an extremely lackadaisical manner, this Act did not address the problem of where an indigenous child was to live and be cared for in a kin network (Ln re CP ). Moreover, this Act incorrectly assumed that the courts would pass orders that would show preference for some identified individuals. There would be no attempt at recognizing the indefiniteness of care arrangements. These arrangements cannot be construed to indicate some specific individual, and this in turn would generate criticism regarding the ambiguity in the arrangements made for a child (Ln re CP ). Indigenous parenting has its own specific characteristics. Consequently, attaching an assumption of primary caregiver upon Indigenous mothers could lead to considerable difficulty. On several occasions, Indigenous mothers had some of their children with some other member of their family. It was to be understood that with the improvement in conditions, such children were to be claimed by their mother (Ln re CP ). However, the presumption in the Act, result in the permanent deprival of such children. This is a major hurdle for indigenous mothers. Unfortunately, even if this obstacle is successfully circumvented, many of these mothers could find themselves in great difficulty, because of the unfitness requirement. This is a proviso that proves daunting to overcome (Graycar & Morgan, 2002: 283). Australian law informally brings into being good and bad mothers. Furthermore, Australian legislation is notorious for having regarded Indigenous women, as being unfit, merely on the ground that they are Aboriginals. Such inequitable and discriminatory laws have been in force, in Australia from the time of its invasion by the European powers (Graycar & Morgan, 2002: 283). The 54th recommendation in Bringing Them Home instructs that the Family Law Act is to be changed by means of effecting the following alterations. First, in the objects clause to the effect that the offspring of the Indigenous should be entitled to employ their language, declare and practice their own religion and follow their cultural traditions (Graycar & Morgan, 2002: 285). It was recommended by the Australian Law Reform Commission that marriage concluded outside the country, wherein no certificate could be found, were to be accorded recognition for some purposes, like property and maintenance applications (Parkinson, 1994: 485). In many instances of traditional Aboriginal marriage, it had been observed that there were no relevant documents. The Law Commission recommended that such marriages were to be treated as void. Such a course of action would provide a galaxy of ancillary relief, as provided by the Family Law Act. With regard to de facto relationships, the Commission accepted that the Federal Government did not possess the constitutional power to enact laws that related to the property rights of individuals living in de facto relationships (Parkinson, 1994: 486). The callous attitude of the Government causes considerable injustice. It is patently discriminatory to treat an Aboriginal traditional marriage as a de facto relationship. There is considerable difference between de facto relationships and a traditional marriage, which has the approval of society, and it would be to the benefit of all concerned to preserve this distinction. The current practice of dealing with traditional marriages, by means of an approach based on a general approach is incorrect. The need of the hour is to adopt an approach that scrutinizes the explicit social and legal complications involved. The aboriginals have a distinct and sophisticated system, in relation to the institution of marriage. Legislation should recognize such marriages, so that Aboriginals are not discriminated on grounds of having entered into a de facto relationship. Moreover, as opined by the International Court of Justice, favorable discrimination should be practiced against the Aboriginal community. This will enable them to develop and catch up with the more advanced sections of Australian society. Works Cited Aboriginal Customary Laws The interaction of Western Australian law with Aboriginal law and culture FINAL REPORT. Perth: Law Reform Commission of Western Australia, 2006. Australian Human Rights Commission. Know your rights: Racial discrimination and vilification. n.d. 11 September 2010 . Castles v Secretary to the Department of Justice. No. [2010] VSC 310 (9 July 2010). n.d. Challenging Customary Law myths and misconceptions. n.d. 11 September 2010 . Committee, Northern Territory Law Reform. "Legal Recognition of Aboriginal Customary Law." Background Paper 3: The legal recognition of Aboriginal customary law. Darwin, 2003. "De Facto Relationships Act." 1 October 1991. "Family Law Act." Family Law Act 1975 (Cth). 1975. Family law in Australia. 7 October 2003. 12 September 2010 . Graycar , Regina and Jenny Morgan. The hidden gender of law. Federation Press, 2002. Law Reform Commission. Discrimination Law in Australia . n.d. 11 September 2010 . Ln re CP . No. 21 Fam LR 486. 1997. Parkinson, Patrick. "Taking Multiculturalism Seriously: Marriage Law and the Rights of Minorities." Sydney Law Review (1994): 16:473. "Racial Discrimination Act 1975 (Cth)." n.d. Recognition of Traditional Marriages as De Facto Relationships. n.d. 12 September 2010 . Walker, Yolanda. Aboriginal family issues. 1993. 11 September 2010 . YWCA Australia, Women’s Legal Services NSW and Kingsford Legal Centre. "Update to the Australian Aboriginal and Torres Strait Islander Women’s Parallel NGO Report on the implementation of the Convention on the Elimination of All Forms of Discrimination Against Women." 2010. Read More