Committee view and recommendations
The committee acknowledges the passionate and heartfelt arguments
presented on both sides of the debate during the course of this inquiry. The
issue of marriage equality for same-sex couples in Australia provokes an
emotive response, and this is strongly evidenced by the unprecedented number of
submissions received by the committee for the inquiry.
It is overwhelmingly apparent, though, from the evidence received that
same-sex couples feel that the current definition of marriage in the
Marriage Act discriminates against them because they are denied the
fundamental social, cultural, psychological, administrative and legal benefits
that marriage can provide. As a result, and on balance, the committee strongly
supports legislation to provide for marriage equality in Australia, on the
basis that it will remove discrimination in this important area for same-sex
In saying this, the committee acknowledges the significance of the institution
of marriage and the place that it holds in Australian society. The committee
considers that allowing all couples access to marriage – regardless of their
sex, sexual orientation or gender identity – will only strengthen the
institution of marriage, and increase its value and importance.
Marriage equality is about rights and removal of discrimination
While the committee specifically notes that the
Australian Government's same-sex law reforms in 2008 represented
significant progress in removing discrimination against same-sex couples, the
committee is of the view that those reforms do not, in fact, provide the full
equality to which same-sex couples are entitled. The committee also recognises
that, in the absence of marriage equality in Australia, several state and
territory jurisdictions have established civil union or relationship registers
as a means of providing couples with a mechanism to have their relationships
formally recognised. While these arrangements may have their place, they are
not a substitute for full marriage equality.
The committee strongly believes that providing true equality means that
all couples should be treated 'equally' – 'separate, but equal' is simply
inadequate. Marriage is about two people in a committed and loving life-long relationship,
and it has nothing to do with sex, sexual orientation or gender identity. The
time has come for same-sex couples to have their relationships treated with the
dignity and respect that they deserve: the Marriage Act should be amended, and
marriage equality should be provided for all couples who wish to marry in
In this context, the committee notes the considerable weight of evidence
provided during the inquiry by the psychological profession that discrimination
against same-sex couples, including a lack of relationship recognition, is a
significant contributing factor to poor mental and physical health outcomes.
The committee considers that marriage equality would foster inclusion and
acceptance for these groups in society. Further, the committee believes that
the strong weight of psychological evidence indicates that marriage equality
would lead to improved mental and physical health outcomes for LGBTI people.
As an additional point, the committee considers that marriage equality cannot
be dismissed simply as an issue being pursued by a minority group. The
committee has received evidence and submissions in support of marriage equality
from a broad and diverse range of organisations and individuals, including
parents and friends of same-sex couples, churches and church leaders, politicians,
groups representing young people, and mental health experts. The committee also
notes that many submissions to the inquiry who expressed support for marriage
equality specifically mentioned that, while they themselves are heterosexual,
they fully support the right of same-sex couples to marry.
Marriage is a secular institution
The committee recognises that marriage in Australia is a secular
institution available to both religious and non-religious heterosexual couples.
Ministers of religions are able to solemnise marriages – but they are not
obligated to solemnise all marriages. As a number of submissions pointed out,
the Marriage Act provides for both civil and religious marriage ceremonies, and
the marriage equality bills currently before the parliament allow for churches
and religious groups to continue to conduct marriage ceremonies on the basis of
their religious beliefs.
The committee agrees with the views expressed by the Very Reverend Dr Peter Catt,
Dean of St John's Cathedral, who, in noting that Senator Hanson-Young's
Bill will not affect the rights of churches or other religious groups to
celebrate marriage according to their own understanding and religious beliefs,
[This will] provide a positive space in which religious
groups will be able to have their own internal debates and conversations about
their approach to marriage. This in turn allows for these sectarian debates to
be separated from the debate as it applies to the nation as a whole. I see this
as an honouring of the pluralistic nature of Australian society.
In the committee's view, marriage equality for same-sex couples is not
an inherently religious issue. While the committee understands that many
people strongly oppose marriage equality because of their religious beliefs,
the committee also notes that strong religious convictions do not, as a matter
of course, prevent people from supporting marriage equality. This was evidenced
by the many submissions from individuals who explicitly identified themselves
as religious, as well as from various religious groups and leaders, who fully
support marriage equality.
In this context, the committee notes comments made by Pastor Michael Hercock
from Imagine Surry Hills Baptist Church in articulating his personal journey to
a position of support for marriage equality:
As a Baptist Minister with a strong traditional Christian background,
the concept of marriage equality was not something I historically agreed with. It
posed questions of my cultural upbringing, unrealised fears, and dare I say prejudices.
Yet in asking the simple question of what is best for my neighbour and for my community
in relation to the just God I serve, I was able to listen in a fresh way. The answer
I was left with was personal – not Christian, religious, gay, straight or otherwise.
It was also simple: no person has the right to enforce their historical version
of marriage onto those who form a committed life-long union while accepting the
same social responsibilities as I do. Exclusive heterosexual marriage is not natural
justice for my neighbour or our community and needs to change.
Given that marriage is a secular institution in Australia and that the
Marriage Act provides for religious organisations to celebrate marriage
according to their beliefs, the committee considers that it is important that
religious objections to marriage equality for same-sex couples are not
given disproportionate weight in this debate.
Evolution of marriage in modern society
Arguments were advanced during the course of the inquiry that marriage
is traditionally between a man and a woman for the purpose of producing
children. The committee recognises and respects that this is a strongly held
view among many members of the community, and particularly by those of various
religious faiths. Despite recognising this view, the committee does not agree
that it should amount to a reason for opposing marriage equality.
In addressing the idea that marriage is 'traditionally' between a man
and a woman, the committee does not consider that the union of a man and a
woman is a fixed and immutable requirement of marriage. Marriage has changed
throughout history, and it has changed to adapt to certain developments in
human society and culture. On this point, the committee agrees with comments
made by Mr Brian Greig OAM in his submission – 'traditions
change [and] tradition can never be used as an argument in favour of
The committee also disagrees with the view that marriage equality should
be opposed on the basis of the procreative potential of a couple. The Marriage
Act does not contain any requirement that heterosexual couples
commit to having children, or even contemplate having children, in the course
of their marriage. Further, not every heterosexual couple who gets married
wishes to have children, many people who are married are unable for various
reasons to have children, and there is no requirement that people be married prior
to having children. Indeed, as Mr Senthorun Raj from the NSW Gay and
Lesbian Rights Lobby pointed out in evidence to the committee: the Marriage Act
makes absolutely no reference to children.
It is therefore illogical to suggest that the ability, or inability, of a
relationship to naturally produce children, is a reason to prohibit a couple
from getting married.
Impact of marriage equality on children
The committee does not agree with arguments presented during the inquiry
which suggest that children always 'do best' with married, biological parents.
There appears to be no scientific basis for assertions that LGBTI persons are
less fit to become parents than heterosexual couples.
On the other hand, there is substantive empirical evidence that refutes
absolutely the arguments about children 'doing better' with heterosexual
parents. For example, the Australian Psychological Society has conducted
considerable research in this area:
The research indicates that parenting practices and
children's outcomes in families parented by lesbian and gay parents are likely
to be at least as favourable as those in families of heterosexual parents,
despite the reality that considerable legal discrimination and inequity remain
significant challenges for these families.
The American Psychological Association has also made similar findings:
Homosexuality is a normal expression of human sexual
orientation that poses no inherent obstacle to leading a happy, healthy, and
productive life, including the capacity to form healthy and mutually satisfying
intimate relationships with another person of the same sex and to raise healthy
and well-adjusted children, as documented by several professional
The committee is also conscious of the many same-sex couples in
Australia who are already raising children.
As Rainbow Families Queensland explained to the committee, marriage equality
will have important benefits for these children:
Far from hurting children, marriage equality will actually
benefit those children being raised by [LGBTI] couples by removing legal
discrimination against their families and promoting a change in social
attitudes towards the Rainbow Families.
It is clear that it is the quality of parenting which is the most
significant and influencing factor in the upbringing and welfare of children,
not the mere fact that a child is raised by both of his or her biological
parents. The committee also notes in this context that there are many children
in Australia being raised by single parents or by a biological parent and a
Marriage equality for same-sex couples is not a 'slippery slope'
The committee points out that Senator Hanson-Young's Bill (along with
the other two bills currently before the parliament) provides only for the
union of two people, and not more; and there is no suggestion that any of the
proponents of marriage equality in Australia are advocating for anything
different. The committee strongly rejects any assertion that these bills
represent a 'first step' towards the legal recognition of unions of more than
Moreover, the committee does not believe that there is any widespread
public support in Australia for the recognition of 'poly' relationships in the
Marriage Act: there is simply no call or push in mainstream Australian society
for such relationships to be legalised. On the basis of the views expressed in
the nearly 80,000 submissions received by the committee in this inquiry, the
committee does not believe that there is any impetus in the Australian
community for the law to be changed to recognise polygamous or polyamorous
relationships. There was no evidence presented to the committee suggesting that
people in such relationships feel discriminated against or that they should be
given the right to marry multiple partners.
The committee also notes that there is no legislative history in
Australia with respect to recognition of polygamous relationships, and this can
be distinguished from the legislative changes that have been made within the
Commonwealth, and the states and territories, to end discrimination against
In any event, if a member of parliament were to introduce legislation in the
future that provides for such relationships to be legally recognised, that
legislation would be subject to the same robust parliamentary checks and
balances that are applied to every piece of legislation, and would not
simply pass into law unabated.
In the committee's view, it is manifestly absurd to suggest that ending
the discrimination currently suffered by same-sex couples who are unable to get
married will somehow lead to an influx of groups of more than two people
seeking formal recognition of their relationships in the Marriage Act.
Public support for marriage equality
As emphasised in chapter 1, the committee's deliberations and conclusions
are not based simply on public opinion. In the committee's view, however, there
has been a significant increase in public support for marriage equality for same-sex
couples since its inquiry on this issue in 2009: the number of submissions in
support of marriage equality that were received by the committee during the
current inquiry – around 46,000 – amount on their own to the most
submissions ever received by a Senate committee. Further, the number of
submissions supporting Senator Hanson-Young's Bill is significantly more than
the number of submissions opposing the bill.
As a point of interest, the committee also notes that the level of
support recorded by the House of Representatives Standing Committee on Social
Policy and Legal Affairs for its inquiry into the Bandt/Wilkie Bill and the
and support for Senator Hanson-Young's Bill in this committee's inquiry, are
relatively consistent: in this inquiry, approximately 59 per cent of
submissions indicated support for Senator Hanson-Young's Bill; and the House of
Representatives committee's survey responses showed that there is 64 per cent
support for the Bandt/Wilkie Bill and 60.5 per cent support for the
Jones Bill. These figures accord generally with the results of other polls
conducted in recent years.
In the committee's opinion, this appears to demonstrate a call by the
Australian community for the acceptance of marriage equality, and related
issues of sexual orientation and gender diversity, as essential components of
true social justice and equality for all. In addition to increasing public
support within Australia, the committee is also mindful of the increasing
number of overseas jurisdictions which recognise or are considering the
recognition of marriage equality for same-sex couples.
Conscience vote on marriage equality legislation
While the committee is strongly supportive of the principle of marriage
equality for same-sex couples, it also recognises that marriage equality is an
issue which provokes strong and impassioned sentiment in the community. As
noted above, this is clearly evidenced by the overwhelming number of
submissions received during the committee's inquiry, representing views on both
sides of the debate.
Against this background, the committee would like to comment on the
issue of a conscience vote in the parliament on the issue of marriage equality.
The term 'conscience vote' is most commonly used in Australia to describe votes
on moral, religious and social issues in which senators and members are not
obliged to vote along party lines but according to their individual beliefs.
The term may also include issues on which the parties do not always have a
The committee notes evidence suggesting that, historically with respect
to votes on legislation to amend the Marriage Act, political parties in
Australia have allowed members of parliament a conscience vote on the issue. It
is also interesting to observe that, up until 2004, every piece of legislation
related to marriage which has come before the federal parliament was designed
to expand the opportunities for marriage and to extend protection to people in
a marriage-related environment.
The three bills before the parliament – Senator Hanson-Young's Bill, the
Bandt/Wilkie Bill and the Jones Bill – also attempt to remove current
limitations in the Marriage Act to expand the opportunities to marriage to same-sex
couples. Accordingly, the committee considers that it would be in keeping with
tradition for political parties to allow their senators and members a
conscience vote on these bills.
The committee strongly supports the notion of a conscience vote on the
issue, and encourages all parties to allow their federal senators and members
to vote according to their conscience – and not along party lines – on Senator
Hanson-Young's Bill and any other legislation which proposes to amend the
Marriage Act to provide for marriage equality for all couples in Australia.
Specific commentary on Marriage Equality Amendment Bill 2010
After due consideration of all competing points of view presented during
the inquiry, the committee has reached the conclusion that, subject to some
amendments, it supports Senator Hanson-Young's Bill. The committee
provides the following commentary on specific aspects of the bill – including
suggestions for amendment – and issues relating to its constitutional validity.
The committee notes the conflicting evidence it received in relation to
the constitutional validity of Senator Hanson-Young's Bill supported by the
marriage power in section 51(xxi) of the Constitution.
On balance, though, the committee accepts that there are strong
arguments suggesting that on current authority the High Court of Australia
may adopt a broad interpretative approach to the marriage power, which would
encompass marriage for
same-sex couples. The committee also notes evidence suggesting that the
High Court starts from a presumption that all Commonwealth legislation is
valid, and that such a presumption of constitutionality should be strongest
when the High Court considers legislation relating to a 'deep-seated moral
In the committee's view, the mere possibility that the High Court might
find certain legislation constitutionally invalid is not a bar to the
parliament considering, and passing, legislation. As was highlighted in
evidence, there is a long history of the parliament passing legislation, even
where there may be some level of uncertainty in relation to matters of constitutional
Definition of 'marriage' in the bill
The committee agrees with views expressed during the course of the
inquiry that preserving the current definition of marriage in the Marriage Act
as a union between a man and a woman serves only to highlight the
LGBTI people, and perpetuates their feeling of being treated differently to
The committee notes that there is some concern relating to the
appropriateness of the definition of 'marriage' in Senator Hanson-Young's Bill
– in particular, to the phrase 'regardless of sex, sexual orientation and
gender identity'. While the committee acknowledges that there is some support
for the definition of 'marriage' in the Jones Bill,
evidence to the committee indicated a preference for a definition of marriage
as 'the union of two people, to the exclusion of all
others, voluntarily entered into for life'. The committee concurs that a
general, 'all-inclusive' definition is to be preferred – this correlates with
the idea that marriage equality relates to the rights of any two people
Protections for ministers of
The committee is of the view that section 47 of the Marriage Act,
as currently drafted, clearly and unequivocally protects religious ministers
from being obliged to conduct marriages that do not accord with their religious
beliefs or practices. In addition, as evidence presented to the committee
pointed out, section 116 of the Constitution specifically prevents the
Commonwealth from legislating to limit the free exercise of religion in
Australia. It is the committee's view, therefore, that concerns expressed
during the inquiry as they relate to marriage equality impacting upon religious
freedom of conscience and expression for ministers of religion are unfounded.
Despite expressing this view, however, the committee believes that the
insertion of a specific provision in Senator Hanson-Young's Bill would assist
in clarifying the bill's application to religious ministers and in allaying
concerns within certain religious groups, and some elements of the community,
in relation to this issue. An express provision on the matter in the context of
same-sex marriage would also align the bill's application with the guarantee
contained in section 116 of the Constitution.
The committee considers that a specific amendment to section 47 in this
regard (such as the approach taken in the Jones Bill) is not favourable from a
legislative drafting perspective because it would 'single out' marriages where
the parties are of the same sex. In effect, this would continue to discriminate
against people on the basis of their sexuality and sexual preference: such a
'special' provision would serve only to emphasise, in relation to same-sex
couples, what section 47 already does with respect to other marriages that
religious bodies may currently refuse to perform (such as, for example, those
involving a divorced person, or a non-member of a particular religious faith).
Most importantly, the committee believes that such an approach would serve to undermine
the committee's strongly held view that providing true equality for LGBTI
people in Australia means treating all couples, regardless of their sex, sexual
orientation or gender identity, in exactly the same way under the law.
Accordingly, the committee has concluded that Senator Hanson-Young's
Bill would benefit from adopting a similar approach to that taken in the
Bandt/Wilkie Bill: namely, the insertion of an application – or 'avoidance of
doubt' – provision that expressly states that the amendments in the bill do not
limit the operation of section 47 of the Marriage Act.
The committee recommends that all political parties allow their
federal senators and members a conscience vote in relation to the issue of
marriage equality for all couples in Australia.
The committee recommends that the definition of 'marriage' in
item 1 of Schedule 1 of the Marriage Equality Amendment Bill 2010 be amended to
mean 'the union of two people, to the exclusion of all others, voluntarily
entered into for life'.
The committee recommends that the Marriage Equality Amendment Bill 2010
be amended to include an application, or 'avoidance of doubt', clause which expressly
provides that the amendments made by Schedule 1 of the bill do not limit the
effect of section 47 of the Marriage Act.
The committee strongly supports the Marriage Equality Amendment
Bill 2010 and recommends that it be debated and passed into law, subject
to the suggested amendments set out in Recommendations 2 and 3.
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