Kirsty Magarey, Law and Bills Digest Section
Background
The issue of same-sex marriage was recently referred to as the
‘issue that’s refused to go away this federal election
campaign’. Certainly it seems to be receiving more focused
attention than it did during the previous Parliament. The
Government had focused on removing discrimination against same-sex
relationships generally. However, the Parliament refused to
countenance same-sex marriage, despite several Private
Members’ Bills, including the Australian Greens’
Marriage Equality Amendment Bill 2009 (negatived in the Senate five
to 45), and three earlier Private Members’ Bills introduced
by the Australian Greens and Democrats in the last six years.
While the major parties have been unwilling to countenance same
sex marriage the Rudd Government responded to a significant Human
Rights and Equal Opportunity Report, Same Sex: Same
Entitlements, in 2008, passing the:
- Same-Sex Relationships (Equal Treatment in Commonwealth
Laws) Acts 2008 on superannuation and general law reform
- Family Law Amendment (De Facto Financial Matters and Other
Measures) Act 2008 and
- the Evidence Amendment Act 2008.
The combined effect of these Acts significantly changed the
legal status of same-sex couples, recognising them on an equal
footing to de facto couples in areas as diverse as taxation law,
social security law, immigration and superannuation. While the Acts
removed many discriminatory Commonwealth provisions and gave
recognition to same-sex couples as de facto couples, there was no
substantive insertion of anti-discrimination principles covering
same-sex couples. Another element the Commonwealth measures did not
cover was the issue of a national relationships register, although
the then Attorney-General expressed his hope that the states and
territories would address these issues.
Four Australian states/territories have systems which allow
same-sex couples to register their relationships - Tasmania,
Victoria, the ACT and NSW. This recognition has a limited utility,
however. While such arrangements are recognised for the purposes of
some Commonwealth Acts, the schemes can have limited jurisdictional
applicability, depending on the relevant state or territory
arrangements.
Another issue traditionally associated with the married state is
the adoption of children. Same-sex relationships are being
increasingly recognised in this field. In Australia, WA, the ACT
and to an extent Tasmania (‘stepchild adoption’ only),
allow same-sex adoption, and have recently been joined by NSW,
which passed the Adoption Amendment (Same-Sex Couples) Bill in
September 2010.
International context
Attention to the issue of same-sex marriage in Australia often
follows developments overseas. The impetus for the Marriage
Amendment Act 2004 was the fear that same-sex marriages could
take place overseas and subsequently be recognised in Australia
under the Marriage Act 1961’s recognition of foreign
marriages. Those amendments to the Marriage Act explicitly
precluded same-sex marriages from being recognised at all, and in
particular such unions which occurred overseas now form an
exception to the general principle that Australia recognises all
overseas marriages. A growing number of countries allow same-sex
marriages (ten countries at the moment, and if certain specified
areas in other countries were added to the count it would be
higher), although sometimes the right to adopt has not followed the
right to marry.
US developments often impact on Australia. Same-sex marriage is
recognised in a number of US states and districts, and recent
developments in California have been of particular interest. A
court decision permitting same-sex marriage was overturned when a
referendum was passed by 52 per cent of voters (Proposition 8), but
this was in turn overturned by another court decision that the
Proposition was discriminatory and unconstitutional. This is now
the subject of appeal.
Positions of the parties
Both major parties have been consistent in their rejection of
any proposals to recognise same-sex marriages. Indeed the Prime
Minister has repeatedly said that she believes ‘marriage is
marriage between a man and a woman,’ affirming her
Party’s position that ‘the Marriage Act is appropriate
in its current form,’ (her personal belief too). She also
noted that ‘we have as a government taken steps to equalise
treatment for gay couples’.
Mr Abbott’s position was summarised in the 2008 opinion
piece, ‘Not for Adam and Steve’, which, while affirming
the importance of ‘gay people having solid lasting
relationships’, went on to query whether those same-sex
couples ‘who want to claim the status of marriage [are] also
ready for its burdens’ and concluded ‘the relationship
between two people of the same sex cannot be a marriage because a
marriage, by definition, is between a man and a woman.’
During the election campaign he reiterated his opposition to gay
marriage in an interview but said that he favoured formal
recognition of same-sex relationships and appropriate
anti-discrimination measures. Generally views on this matter in the
Coalition were shown as divergent during the debate on the 2008
Bills, while more recently a Tasmanian Liberal candidate
(unsuccessful) declared his readiness to cross the floor in favour
of same-sex marriages if it was a conscience vote.
The Australian Greens and Independent Mr Wilkie strongly support
a conscience vote on a Private Member’s Bill addressing this
issue. Were such a Bill to be given a conscience vote and were it
to pass through the Parliament, there would still be the
possibility for constitutional challenge. That could require the
High Court to determine whether there is a sufficient nexus between
the meaning of the term ‘marriage’ and its
constitutional incidence (‘divorce and matrimonial causes;
and in relation thereto, parental rights, and the custody and
guardianship of infants’) to give the Commonwealth power to
regulate same-sex relationships. In 2009 the Gilbert and Tobin
Centre of Public Law commented it ‘cannot be said with any
great confidence that the High Court at the present time is likely
to find the Commonwealth possesses legislative power to permit
same-sex unions under section 51(xxi)’. These issues could
only be finally resolved by the High Court. However, if such
legislation were to be beyond the power of the Commonwealth, the
possibility for a referral of power from the states remains.
Library publications and key documents
M A Neilsen, K Magarey, E Karlsen, et al,
Same-Sex Relationships (Equal Treatment in Commonwealth
Laws—General Law Reform) Bill 2008, Bills Digest No. 44
2008-09,
http://www.aph.gov.au/library/pubs/BD/2008-09/44bd020.pdf
J Norberry, Marriage Legislation Amendment
Bill 2004, Bills Digest No. 155 2003-04, http://www.aph.gov.au/library/pubs/bd/2003-04/04bd155.pdf
Legal and Constitutional Affairs Legislation
Committee, Marriage Equality Amendment Bill 2009, November
2009, Senate,
http://www.aph.gov.au/senate/committee/legcon_ctte/marriage_equality/report/report.pdf