Having been absent for a few weeks due to research obligations, I return to these pages just as the sizzling summer is setting in down here in Perth and I find myself both rather hot and annoyed. The reasons for latter are myriad, but one which stands out today is that of the issue of same-sex marriage in Australia. Earlier, the High Court overruled the Australian Capital Territory (ACT) law legalizing same-sex marriage, overturning all marriages performed in the few weeks that the law was in effect. Now, to be frank, I'm starting to have doubts about the whole 'marriage' concept in general, though this is based on anecdotal evidence out of my own life rather than actual data which in fact is looking rather positive in Australia at the moment. That aside, when forced to pontificate on the topic I have always taken a liberal view on the subject. So needless to say I was not thrilled with this latest development.
But there are two interesting issues which arise here. First is the obvious point that the ruling was not a ban on same-sex marriage, it was overturning a territory law inconsistent with a federal one. This is par for the course in Australia since the Engineers ruling almost a century ago where the High Court began its tradition of favouring federal powers over state ones. In other words, the judiciary is very much in favour vesting as much power in the Commonwealth as the Commonwealth sees fit to take for itself from the states. In this case the Federal law took upon itself to legislate on the topic of marriage, and I'm not sure at what point did ACT think they were going to get away with making an inconsistent law with that legislation. Something to be said for the symbolic gesture and all that, but still, even the usually vocal proponent of same-sex marriage were strangely subdued in the media, quietly agreeing that the High Court decision was about the legality of the law, not its substance.
The second point here is the more interesting question of whether the judiciary has a place as an instrument of social change in a country which lacks a constitutional Bill of Rights. I'm not going to get into the complicated argument of pros and cons of this, as there is an overwhelming amount of literature on the topic. What I will say is that personally I have always being opposed to the idea, believing justice to be necessarily cold and blind in its application of law, irregardless of the socially induced circumstances in which it finds itself in. High Court is there to enforce the law, not to make it. But sometimes, sometimes, I really wish they did.