BACKGROUND NOTE, 10 February 2012

Same-sex marriage

Mary Anne Neilsen
Law and Bills Digest Section

Introduction

Same-sex marriage has been on the political agenda in Australia for several years, as part of the broader debate about the legal recognition of same-sex relationships.

The expansion of legal rights and protections afforded to same-sex couples in Australia is well developed at both federal and State level. For example, legislation now exists in four States and the Australian Capital Territory that provides for the legal recognition of relationships that may include same-sex unions.[1] At the federal level, in 2008 and 2009 there was a wide-ranging suite of reforms to provide equal entitlements and responsibilities for same-sex couples in areas such as social security, veterans’ entitlements, employment, taxation, superannuation, immigration and workers’ compensation. [2] However there remains one significant area of difference between the treatment of same-sex and heterosexual relationships, and that is in relation to the institution of marriage. While there are fewer and fewer rights and obligations attached to married couples which do not attach to de facto couples – a status currently encompassing same-sex couples in most legal contexts— supporters of gay rights argue this is not enough. They say civil unions and domestic partner registries are not sufficient and for true equality, same-sex couples must have the right to marry. The concept of same-sex marriage is both complex and controversial. It raises human rights and constitutional law issues, as well as a raft of social, religious, moral and political questions.

At a political level, the two major parties have until recently opposed same-sex marriage, although the Australian Greens, and previously the Australian Democrats, have consistently supported same-sex marriage and have sought to legislate in support of their position. However the traditional rejection of same-sex marriage changed in December 2011, when the ALP party conference voted to amend the party platform on same-sex marriage. The platform now states: 'Labor will amend the Marriage Act to ensure equal access to marriage under statute for all adult couples irrespective of sex who have a mutual commitment to a shared life.' The conference voted by 208 to 184 to allow Labor MPs a conscience vote on the issue.[3] The Opposition Leader, the Hon. Tony Abbott, holds the view that Opposition MPs should not be allowed a conscience vote on same-sex marriage,[4] although there are reports of objections to this stand by members of the Shadow Cabinet.[5]

Rather than Government-sponsored legislation in favour of same-sex marriage, a back-bench member of the Government, Labor MP Stephen Jones has announced that he will present a private member's Bill in 2012. The details of that Bill, when it may be introduced and whether the Coalition will allow a conscience vote are still uncertain.[6] However as academic Father Frank Brennan has stated ‘it is fairly certain that within the life of the present parliament, our elected leaders will probably be voting on the issue, and in all likelihood the members of all major parties will have a conscience vote.[7]

The purpose of this paper is to provide background material for the parliamentary debate that is likely to follow that Bill’s introduction. It aims to summarise some of the considerable body of literature on this subject and where necessary point the reader to further relevant material. Appendix 1 presents extracts from the Senate Legal and Constitutional Affairs Legislation Committee report on the Marriage Equality Amendment Bill 2009, giving a summary of some of the arguments for and against same-sex marriage; Appendix 2 gives a comparative summary of alternative forms of relationship recognition and Appendix 3 provides comparative material on overseas jurisdictions. The reader is also referred to the Parliamentary Library’s FlagPost on ‘Conscience votes on same-sex marriage legislation’.[8]

The Marriage Act 1961—outline

The Marriage Act 1961 deals with a range of matters. Its main purpose at the time of enactment was to bring the regulation of marriage into the jurisdiction of the Commonwealth. Until 1961 marriage had been regulated by State and Territory law and there were nine separate and diverse systems of marriage law in Australia.[9] Prior to Federation marriage had been covered by the laws of the colonies. The colonial statutes dealing with marriage and divorce were subject to disallowance by the Imperial Parliament, with a view, as Quick and Garran explained, to securing ‘uniformity of marriage laws among the Christian races of the Empire’.[10]

A Marriage Bill was first introduced into the Commonwealth Parliament in 1960. The Bill was not dealt with in 1960 and was re-introduced in 1961. The federal Attorney-General Sir Garfield Barwick at the time stated the main purpose of the legislation was to:

Produce a marriage code suitable to present day Australian needs, a code which, on the one hand, paid proper regard to the antiquity and foundations of marriage as an institution, but which, on the other resolved modern problems in a modern way.[11]

In 1961 the concept of modern marriage was a heterosexual union where the parties pledged monogamy and permanency in their relationship.[12]

Amongst other things the Marriage Act currently:

•        sets the marriageable age and allows the marriage of minors in certain circumstances

•        establishes the framework for marriage ceremonies. Parties can marry in public or private, provided there is an official celebrant and two witnesses to the declarations between the parties. Particular words are prescribed for marriages solemnised by civil celebrants which reflect the understanding of marriage in Australian law. Religions which have been recognised as requiring monogamy and permanency as promises of marriage are permitted to use their own ceremony.[13]

•        establishes the framework of the regulation of authorised marriage celebrants (both religious and non-religious)

•        deals with issues of consent, void marriages and legitimacy of children

•        creates offences relating to bigamy, under-age marriages, and marriages not performed according to the required notice periods etc

•        defines marriage to mean ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’

•        deals with the recognition of validly contracted foreign marriages for the purposes of Australian domestic law and specifically excludes same-sex marriages from such recognition.

The definition of ‘marriage’ and the 2004 amendments to the Marriage Act 1961

As noted above, the Marriage Act 1961 now defines marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’.[14]

However the Marriage Act as originally enacted in 1961 did not contain a definition of marriage. Delivering the second reading speech, Attorney General Barwick said:

… it will be observed that there is no attempt to define marriage in this bill. None of the marriage laws to which I have referred contains any such definition. But insistence on monogamous quality is indicated by, on the one hand, the provisions of the Matrimonial Causes Act, which render a marriage void where one of the parties is already married, and by a provision in this bill making bigamy an offence.[15]

On its passage through Parliament, Senator Gorton, who was responsible for the carriage of the Bill through the Senate, remarked:

[...] in our view it is best to leave to the common law the definition or the evolution of the meaning of ‘marriage’ as it relates to marriages in foreign countries and to use this bill to stipulate the conditions with which marriage in Australia has to comply if it is to be a valid marriage.[16]

While the original Act did not define marriage, section 46 of the Act incorporated the substance of the 19th century English case law definition of marriage found in Hyde v Hyde & Woodmansee[17]. Section 46 says that celebrants should explain the nature of the marriage relationship with words that include:

...Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life ...

However these words were seen as a description or exhortation rather than a definition.[18]

The definition of marriage now in the Marriage Act was inserted in 2004[19], its stated purpose being to reflect ‘the understanding of marriage held by the vast majority of Australians’.[20] The Government stated that:

It is time that those words form the formal definition of marriage in the Marriage Act.

The bill will achieve that result.

Including this definition will remove any lingering concerns that people may have that the legal definition of marriage may become eroded over time.[21]

The definition of marriage was inserted along with changes to expressly preclude the recognition of same-sex marriages conducted overseas. These amendments were in the main a response to reforms legalising same-sex marriage in a number of overseas jurisdictions. In this regard, the Attorney-General, Philip Ruddock, stated:

A related concern held by many people is that there are now some countries that permit same sex couples to marry. It has been reported that there are a few Australian same sex couples who may travel overseas to marry in one of these countries on the basis that their marriage will then be recognised under Australian law on their return. Australian law does, as a matter of general principle, recognise marriages entered into under the laws of another country, with some specific exceptions. It is the government‘s view that this does not apply to same sex marriages. The amendments to the Marriage Act contained in this bill will make it absolutely clear that Australia will not recognise same sex marriages entered into under the laws of another country, whatever country that may be.[22]

At the time, these amendments and their method of enactment were controversial and contentious. There were in fact two Bills the first (the Marriage Legislation Amendment Bill 2004) contained amendments to define marriage and to preclude recognition of overseas same-sex marriages in Australia, but also included amendments to prevent same-sex couples adopting children from overseas. This first Bill was referred to a Senate Committee for inquiry but within a day of its referral a second Bill (the Marriage Amendment Bill 2004) was introduced into Parliament. This second Bill did not contain the amendments relating to overseas adoption — these being the ones that the Labor Party had indicated it would not support.[23] At the same time, the parliamentary committee inquiry into the first Bill was also abandoned. The rationale for this unusual and dramatic change of direction was so that the Bill would have a speedy passage through the Parliament.  The Attorney-General the Hon Philip Ruddock stated:

If this bill is acceded to today, I want to make it very clear that the reason for this, without breaching any privacy matters, is that some parties have already sought recognition of offshore arrangements approved under the laws of other countries and would be seeking recognition under our law.

It is the government's view that the provisions of the Marriage Act which we are seeking to enact should not be delayed and should not be the subject of Senate referral. The opposition having indicated its support for these measures should ensure—having restricted it to those matters that relate to a definition of marriage and the recognition of overseas marriages, which they say they support—that they receive a speedy passage.[24]

While the legislation had the support of both major parties the Labor Party expressed reservations about the process of enactment.[25] The Greens labelled it as discriminatory against the gay and lesbian community and condemned both the Government and the Labor Party for failing to acknowledge the change in present day society in the make-up of couples.[26]  The Hon Alastair Nicholson, former Chief Justice of the Family Court of Australia described it as ‘one of the most unfortunate pieces of legislation that has ever been passed by the Australian Parliament’.[27]

Bills supporting amendment of the Marriage Act 1961 to allow same-sex marriage

Since the enactment of the 2004 amendments to the Marriage Act the issue has resurfaced several times with both the Australian Democrats and the Australian Greens introducing private member’s Bills to allow same-sex marriage. There is currently a private member’s Bill before the Parliament, the Marriage Equality Amendment Bill 2010 (2010 Greens Bill), introduced by Greens Senator Sarah Hanson-Young on 29 September 2010, the first sitting day of the 43rd Parliament.[28] This is the second attempt by the Australian Greens to legislate for same-sex marriage. The previous Bill, the Marriage Equality Amendment Bill 2009, was the subject of inquiry by the Senate Legal and Constitutional Affairs Legislation Committee which reported in November 2009 (the Senate Committee inquiry). That Bill was defeated by 45 votes to 5 at the Second Reading stage.[29]

The purpose of the 2010 Greens  Bill is to

[...] remove all discrimination from the Marriage Act 1961 to ensure that all people, regardless of their sex, sexual orientation or gender identity have the opportunity to marry.[30]

This would be achieved by repealing the current definition of marriage contained in subsection 5(1) of the Marriage Act and replacing it with the following definition:

‘Marriage means the union of two people, regardless of their sex, sexuality or gender identity, voluntarily entered into for life’.

The Bill would also remove section 88EA that prohibits the recognition of marriage between same-sex couples solemnised in a foreign country (item 5).

In addition the Bill contains a new objects clause and several consequential amendments to remove references to a heterosexual meaning of marriage.

Proposed 2012 Bill

As noted in the introduction, Labor MP Stephen Jones has announced that he will present a private member's Bill to allow same-sex marriage in 2012. The details of that Bill are not known, however for the purposes of this paper it is assumed it will be similar to the 2010 Greens Bill. Note also that a very recent media report indicates there will be a second Bill introduced by Greens MP Adam Bandt with the support of independent MP Andrew Wilkie.[31]

Constitutional questions

The ‘marriage power’

Section 51(xxi) of the Commonwealth Constitution provides that the Federal Parliament has power to make laws with respect to ‘Marriage’. That power is not further defined by the Constitution.

Whether the ‘marriage power’ in the Constitution could support a Commonwealth law that recognises same-sex marriage is a complex and well debated subject. Leading academics suggest that should the Australian Parliament legislate to allow same-sex marriage there will undoubtedly be a constitutional challenge to its validity in the High Court.[32]

It is settled law that the Commonwealth cannot define the constitutional meaning of marriage through legislation.[33] In Re F; Ex parte F,[34] Mason and Deane JJ held that:

Obviously, the Parliament cannot extend the ambit of its own legislative powers by purporting to give to ‘Marriage’ an even wider meaning than that which the word bears in its constitutional context. Nor can the Parliament manufacture legislative power by the device of deeming something that is not a marriage to be one or by constructing a superficial connection between the operation of a law and a marriage which examination discloses to be but contrived and illusory.

In this regard, it should be noted that the High Court has never been called upon to define ‘marriage’ for the purposes of the ‘marriage power’ although there have been occasions where the High Court has made observations and given opinions about this power.[35] Some High Court dicta indicate that the constitutional meaning of ‘marriage’ in section 51(xxi) is confined to the definition found in Hyde v Hyde & Woodmansee[36] (that is, a monogamous, heterosexual union for life). There are also more liberal opinions that suggest that the label, ‘marriage’, could apply in an extended range of circumstances prescribed by Parliament.[37] The Bills Digest to the Marriage Legislation Amendment Bill 2004 sets out the following examples of these differing judicial views.[38]

In The Queen v. L, Brennan J said:

In Hyde v. Hyde and Woodmansee, Lord Penzance defined marriage as ‘the voluntary union for life of one man and one woman, to the exclusion of all others’ and that definition has been followed in this country and by this Court.[39]

And in Fisher v. Fisher, Brennan J said:

Although the nature and incidents of a legal institution would ordinarily be susceptible to change by legislation, constitutional interpretation of the marriage power would be an exercise in hopeless circularity if the Parliament could itself define the nature and incidents of marriage by laws enacted in purported pursuance of the power.

The nature and incidence of the legal institution which the Constitution recognises as ‘marriage’ … are ascertained not by reference to laws enacted in purported pursuance of the power but by reference to the customs of our society, especially when they are reflected in the common law, which show the content of the power as it was conferred.[40]

On the other hand, as early as 1908 in Attorney-General for NSW v. Brewery Employees Union of NSW[41] Higgins J said:

Under the power to make laws with respect of marriage, I should say that the parliament could prescribe what unions are to be regarded as marriages.

In 1962, in Attorney-General (Vic) v. Commonwealth (‘the Marriage Act case’), McTiernan J and Windeyer J appear to have taken opposing views about whether ‘marriage’ is limited to monogamous marriage.[42] And more recently, McHugh J suggested:

The level of abstraction for some terms of the Constitution is, however, much harder to identify than that of those set out above. Thus in 1901 “marriage” was seen as meaning a voluntary union of life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the parliament of the Commonwealth the power to legislate for same sex marriages, although arguably marriage now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.[43]

As Professor George Williams and others have argued, this last opinion raises squarely the possible division of opinion in the High Court over the likely interpretation of the ‘marriage power’. [44] Is the power fixed to its 1900 meaning, or is it able to evolve or adapt in line with changed events or attitudes?

Academic writers suggest the High Court could adopt different interpretative approaches to the meaning of the ‘marriage power’ and each would have a different outcome. One interpretative approach is described as the connotation/denotation distinction. Griffiths describes this technique in the following way:

More technically, when interpreting the meaning of a constitutional term, the High Court has traditionally distinguished between connotation and denotation, that is, between the actual usage relevant to a term in 1900 (denotation), as opposed to a definition of the term which elucidates its essential characteristics (connotation). For example, from a denotation perspective the word "vehicle" in 1900 would not have included "aircraft"; whereas from the perspective of connotation, if "vehicle" is defined as a means of conveying persons and goods then it could include "aircraft”, in 1900 and in 2011. Thus, as Zines concludes, "an aircraft although not within the denotation of the term 'vehicle' in 1900 was within its connotation because it is a means of conveyance even though that particular means did not exist in 1900".[45]

If the High Court were to use this connotation/denotation distinction in relation to the ‘marriage power’, Brock and Meagher and others have argued that it would be likely to find a federal same-sex marriage law invalid:

That is, the court would likely find that the connotation of the constitutional term "marriage" in 1900 was formal, monogamous and heterosexual unions. And if this interpretive technique is something more than a mere linguistic device, then it is difficult to argue that heterosexuality was not an essential or core element of "marriage" in 1900.[46]

However a different interpretative technique, one based on marriage as an evolving legal institution, could produce a different outcome. This is described by Brock and Meagher in the following way:

[...] constitutional validity is a possibility if the High Court were to apply a different -though still orthodox — interpretive technique. It involves recognising that the subject matter of the power is "marriage" as a legal institution, one that before 1900 was the subject of gradual but significant change by the statutes of the United Kingdom and the Australian colonies as the earlier analysis demonstrates. In this regard, "marriage" is one of a number of legal terms and institutions that became constitutional provisions in 1900. Importantly, these legal terms of art were products of pre-federation common law and statute and their content — consistent with the common law tradition - was still developing (and contested) to varying degrees at the time of federation. Considering this history, is it not reasonable to assume that the framers understood that the legal institution of "marriage" would likely develop further after federation and provided a constitutional mechanism to accommodate this? In other words, to consider that the essential meaning of constitutional terms such as “marriage” was frozen in 1900 would betray the pre-federation history, the common law tradition and maybe even the intention of the framers.[47]

In a submission to the Senate Committee inquiry into the Marriage Equality Amendment Bill 2009, Associate Professor Andrew Lynch, Professor George Williams and Ben Teeger of the Gilbert and Tobin Centre of Public Law discuss this issue and the likelihood of the High Court providing a wide definition of ‘marriage’:

On balance, 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). Indeed, the most likely conclusion is that the meaning which is currently employed by the Marriage Act [between a man and a woman] represents the full extent of the Commonwealth’s power. That is, the Commonwealth lacks the power to include same‐sex unions within the meaning of ‘marriage’.[48]

However, in September 2010, Professor Williams came down tentatively on the side of the expansive interpretation, based on the view that ‘the meaning of the Constitution must evolve with changes in society’. He concluded:

There can be no answer to this dilemma until a federal same-sex marriage law is tested in the High Court. My view is that a majority would lean to the latter view, thereby allowing the federal parliament to provide for same-sex marriage.[49]

Alternatives to a federal same-sex marriage law

Should the High Court find that the Commonwealth does not possess legislative power to permit same-sex marriage under the ‘marriage power’, the academic literature suggests there are other ways of achieving same-sex marriage in Australia. Some of these alternatives are mentioned briefly below.

State marriage laws

Like all section 51 powers, the marriage power in section 51(xxi) of the Constitution is not an exclusive federal head of power but is held concurrently with the States. Where a federal and a State law are in conflict, section 109 resolves that conflict in favour of the Commonwealth law, with the State law being rendered not void but inoperative for the duration of the conflict.[50]

A move towards formal legal recognition of same-sex unions may therefore occur through use of the legislative powers of the States. In fact in three States, Tasmania, New South Wales and South Australia, there have been Bills introduced that if passed would permit same-sex marriage in the respective State. The only impediment to such laws would be if such laws were rendered in-operative by section 109 of the Constitution due to inconsistency with federal law.[51]

The question of whether the States can legislate to legalise same-sex marriage is beyond the scope of this paper but it has received scholarly attention in the context of the Tasmanian Same-Sex Marriage Bill 2005 where George Williams and Geoffrey Lindell provided extensive opinions on the constitutional issues involved with that Bill.[52]

However, even if state based same-sex marriage laws were found to be constitutionally valid, they may not be a satisfactory solution for supporters of gay rights. A key element of the push for same-sex marriage is that the same form of marriage should be available for same-sex and heterosexual couples. Like civil unions and registers, state-based marriage laws could be seen as a second-class form of recognition to a Commonwealth law on marriage.

Referral of powers

Another option would be for the States to refer their powers to legislate for marriage to the Commonwealth. While politically a more difficult option to achieve, constitutionally, it would be more secure as it is a ‘well tested way of overcoming deficiencies in the scope of federal power’.[53] The Commonwealth could then use this referred power to make laws for same-sex marriage under section 51(xxxvii) if the Commonwealth and all States were in favour of providing for same-sex unions. As Brock and Meagher have noted, it would also complement the enactment by the Commonwealth of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008; legislation made possible by most States referring their power to make laws for maintenance and property division upon the breakdown of de facto relationships of opposite and same-sex couples.[54]

External affairs power[55]

Under the external affairs power in section 51(xxix), the Commonwealth can enact domestic legislation which gives effect to its international obligations. The question to be asked is whether Australia’s international human rights obligations would support a federal law allowing same-sex marriage?[56]

In submissions to the Senate Committee inquiry into the Marriage Equality Bill 2009, one of the key arguments for legalising same-sex marriage was its protection under Australia’s human rights obligations. Australia is party to numerous human rights treaties, one of which is the International Covenant on Civil and Political Rights (ICCPR). Whilst the ICCPR does not contain an express right for same-sex marriage, it does have a prohibition on discrimination. Article 26 expressly prohibits discrimination, which is any distinction, exclusion, restriction or preference on any ground which has the purpose or effect of nullifying or impairing the enjoyment or respect of human rights by all on an equal footing.

Toonen was a case where Tasmania’s criminal law applying to same-sex activity was examined by the UN Human Rights Committee and was found to be a breach of the ICCPR’s privacy provisions.  The Government sought advice from the Committee as to whether sexual orientation was covered by article 26.  The Committee explicitly declined to make such a finding, although it also made the unusual comment that it thought ‘the reference to "sex" in [...article 26] is to be taken as including sexual orientation’.[57]  In discussing the matter the Committee also observed that on the question of whether sexual orientation is covered by article 26:

The formulation of these provisions [in the Convention] - "without distinction of any kind, such as" and "on any ground such as" support an inclusive rather than exhaustive interpretation. While the travaux préparatoires do not provide specific guidance on this question, they also appear to support this interpretation.[58]

Dr Gerber of the Castan Centre for Human Rights Law submitted that the Toonen case stands for the principle that discrimination includes discrimination on the grounds of sexual orientation, meaning that discrimination through excluding people from the right to marry solely based on sexual orientation is a breach of article 26 of the ICCPR.[59]  On the other hand, the Hon. Catherine Branson QC, President and Human Rights Commissioner argues that this is an area where international jurisprudence is still developing and in her view she does not think it can be firmly said one way or another at the moment whether there is an international obligation to allow same-sex marriage.[60]

Whether the ICCPR would support a federal same-sex marriage law is questionable and in the submission from the Gilbert and Tobin Centre of Public Law, Lynch, Williams and Teeger raise doubts about whether the external affairs power would be a secure basis for a federal law regulating same-sex marriage. The submission argues:

Two major obstacles arise in this context when it comes to same-sex marriage. First, the most relevant international instrument, the International Covenant on Civil and Political Rights, is far from explicit in affording protection from discrimination on the basis of sexual preference. Second, even if the Covenant were interpreted broadly enough to protect persons on that ground, the Commonwealth’s provision of same-sex unions as a result would be vulnerable to challenge as a disproportionate response to such an obligation. The domestic law must have a clear and proportionate relationship to the international obligation in order to be valid. The Covenant cannot be said to provide a secure footing for federal regulation of same-sex unions.[61]

It could not be said that there is any clear international concensus on the rights of same-sex couples, let alone their right to marry, thus no argument could be made that there was any international customary law which could attract the external affairs power.[62]  However, as discussed above, there are other constitutional heads of power which could be utilised.

Appendix 1—Extracts from Senate Legal and Constitutional Affairs Legislation Committee, Marriage Equality Amendment Bill 2009 Report

In 2009 the Senate Legal and Constitutional Affairs Legislation Committee held an inquiry into the Marriage Equality Bill 2009 (the Senate Committee Inquiry). As noted above this was a private members Bill, its purpose being to remove the provisions in the Marriage Act 1961 that prevent same-sex marriages and recognition in Australia of same-sex marriages entered into overseas. The report on that Bill provides two chapters summarising the arguments for and against same-sex marriage as presented to the Committee in submissions and hearings. This Appendix provides extracts and summaries from those chapters. The reader is referred to the full report for further information.[63]

Arguments supporting marriages for same-sex couples

Equality

Perhaps the most prominent argument centers on the need to treat people as equals, regardless of their sexual preference, and to recognise and respect the equality of a commitment between people of the same-sex and people of different sexes. A number of witnesses to the Senate Committee Inquiry into the 2009 Bill referred to the 2008 reforms aimed at redressing the inequities, and all were in support of them. However, witnesses in support of the Bill went on to argue that the reforms did not go far enough.[64]

Dr Paula Gerber from the Castan Centre for Human Rights Law, for example, submitted that:

There have recently been a suite of reforms that have removed discrimination against gays and lesbians in the areas of taxation, superannuation and social security—the last bastion is marriage. In accordance with international human rights law, principles of non discrimination and equality, this too must be addressed. Civil unions and domestic partner registries are not sufficient. They are the equivalent of the ‘separate but equal’ response in America in the era of segregation, and we know from that time that that does not result in uniform enjoyment of human rights by all.[65]

Other witnesses agreed and discussed some of the possible consequences of inequality for same-sex attracted people, including fostering a climate of homophobia and inviting all the negative personal and societal consequences of inequality.[66]

Marriage and family as dynamic institutions

Supporters of same-sex marriage argue that marriage is an institution which has evolved markedly over time. The Law Council of Australia observed that:

Legal reform of this nature is not unique, it is the natural progression of rights development as it accords with changes in social practice.[67]

The Australian Coalition for Equality submitted that:

The institute[ion] of marriage has changed over [the] 200 year history of Australia. No longer is marriage allowed between men and a 12 year old girl. Consenting adults may now choose who their partner for life is, rather than being forced into an “arranged marriage”. Women are no longer denied legal rights nor treated as property during a marriage transaction of business. Couples of mixed-race may now be married and recognised by the law. Marriages between people of Aboriginal heritage are no longer restricted as they were previously. People from differing religious backgrounds are no longer frowned upon by society if they enter into a  commitment for life. Society in Australia now recognises and accepts divorce.[68]

A significant number of witnesses discussed the relationship between marriage and children. Australian Marriage Equality submitted that:

There is no intrinsic association between marriage and the raising of children. There is no evidence that children fair worse when raised by two parents of the same-sex. Indeed, the children raised by same-sex partners benefit from marriage equality. Therefore, there is no basis upon which to assert that children will be harmed by same-sex marriage.[69]

The Senate Committee Inquiry heard that the constitution of families, too, has changed over time. Dr Adiva Sifris also representing the Castan Centre for Human Rights Law submitted that:

The first thing is that the family is and was regarded as the foundation of society. Historically the family was based on marriage, and it was for this reason that the state has furiously protected the institution of marriage. But we need to understand that, in 2009, families are not what they were even 20 or 30 years ago. Families come in diverse forms. I have some statistics here from the Australian Bureau of Statistics which basically set out the different kinds of family forms. One can see that one-parent families and couple families without children are on the increase, whereas couples with children are on the decrease. On the other hand, de facto couples—people who do not marry—have increased from less than six per cent of all couples in 1986 to nearly 15 per cent now. Our whole concept of family in 2009 is very different to what it was 20 years ago.[70]

Even if the presence of children is accepted as important in the definition of marriage, the committee noted evidence cited by Australian Marriage Equality that increasing numbers of same-sex couples are choosing to raise children. Research from Professor Jenni Millbank in 2002 found that:

Surveys of gay men in the USA have suggested that around 10% of gay men are parents. American and Australian surveys of lesbians and NZ census data suggest that between 15-20% of lesbians have children. Australian surveys suggest that this proportion is likely to increase in the next 5 years as many lesbians also indicate that they are planning to have children in the future.[71]

Broader role and benefits of marriage

Supporters of same-sex marriage spoke of their desire to make available the benefits of marriage to themselves and their loved ones, and argued that the benefits extended further than the couple themselves.  Mrs Shelly Argent, representing the Parents and Friends of Lesbians and Gays submitted:

A marriage ceremony puts the same-sex relationship into a context everyone is familiar with and has the potential to transform what the couple means to each other in the eyes of the family, friends and society in general.[72]

In seeking to contrast the benefits of marriage over those associated with civil unions, Mr Rodney Croome, representing Australian Marriage Equality, concluded that:

The repeated complaints of partners is that their status as civil union partners is not recognised or understood by key agencies—health insurers, schools or even government agencies—and certainly not in social discourse by their families, friends and neighbours. So while civil unions might grant those partners equal entitlements as married partners in practice they are often denied those entitlements by authorities who are ignorant of what a civil union is or who are deliberately discriminatory… but many of the partners I have spoken to say that, even though they are guaranteed by that registry the same spousal rights as married couples in Tasmanian law, often that is not respected by state authorities, by health insurers, by schools or whomever it might be simply because there is not an understanding of what that means.[73]

Human rights and responsibilities

One of the key arguments for legalising same-sex marriage was its protection under Australia's international human rights obligations. Australia is a party to numerous human rights treaties, one of which is the International Covenant on Civil and Political Rights (ICCPR). Whilst the ICCPR does not contain an express right for same-sex marriage, it does have a prohibition on discrimination. Article 26 expressly prohibits discrimination, which is any distinction, exclusion, restriction or preference on any ground which has the purpose or effect of nullifying or impairing the enjoyment or respect of human rights by all on an equal footing. As noted above, Dr Gerber submitted that the Toonen case stands for the principle that discrimination includes discrimination on the grounds of sexual orientation.[74]

The Australian Human Rights Commission also took this view:

Equality is a fundamental principle of international law. The Commission believes that a human rights analysis based on the principle of equality supports the recognition of same sex marriage.[75]

Arguments opposing marriages for same-sex couples

The 'Origins' of 'Marriage'

Submissions to the Senate Committee inquiry opposing same-sex marriage focused on the origins of the word 'marriage' and the development of what has come to be a technical and common law definition. They pointed to the 1866 definition in Hyde v Hyde and Woodmansee and argued in favour of preserving this narrower and common law definition.

The unique nature of marriage itself

An important element of the evidence opposing the Bill centred on the current definition of 'marriage' as being the most appropriate. Recognising the historical context of the marriage relationship, the benefit to the State of endorsing this relationship in law and the implications of changing the legal definition, submitters who opposed the Bill pointed to the distinguishing and unique characteristics of marriage to defend against broadening the term to include other types of relationships:

When a man and a woman have that relationship of intimate love it is different [from other relationships] because it has a capacity built into it that same-sex relationships simply do not have. It is a fundamentally different kind of relationship.[76]

Evidence given to the Committee emphasised how the proposed definition that would include same-sex marriage was a fundamental departure from the acknowledged and agreed definition used by every other culture or society across time:

Marriage has always been understood—even in very ancient societies—to be between a man and a woman. Even though certain forms of sexual behaviour have been tolerated—and widespread in some cultures—it has never been seen as marriage.[77]

State involvement

Submitters who opposed same-sex marriage gave examples of common interpersonal relationships that are not endowed with any particular legal status, such as personal friendships. These submitters asserted that there must be a strong policy justification before the State should involve itself in what would otherwise be a personal or private relationship. They argued that marriage, as currently defined, is unique among relationships in that it does have particular benefits to society that warrant its recognition in law.[78]

Generally, those who opposed same-sex marriage cited the common, natural ability of heterosexual couples in a life-long relationship to provide a healthy environment for having and raising children as the strongest justification for State regulation of marriage. Submitters also pointed to the importance of the law as a symbol of what is important to and good for society:

What we are considering here is marriage as a public, legal institution as opposed to a private institution. Marriage could exist without the state’s public intervention, but this is a circumstance where the state declares that there is a public institution. That is something we tend to take for granted, but I would suggest that we should not, especially when you consider that it is not normal for the state to intervene in private relationships.[79]

Marriage and children

The Catholic Diocese of Sydney submitted to the Senate Committee inquiry that the State has always recognised the public institution of marriage because of the unique and essential contribution of the marital relationship to the common good:

The primary reason why nation states have been interested in marriage and why it has attracted public support is its procreative aspect, encompassing the generation and raising of children.[80]

...

It is a union that is publicly recognised and treated as special, distinguished from other types of relationships because of its unique capacity to generate children and to meet children’s deepest needs for the love and attachment of both their father and mother.[81]

Children's rights and outcomes

Building on the 'naturally procreating' element of the traditional marriage relationship, submitters also emphasised the important, child-raising environment it creates. Three particular aspects of the discussion of children were put to the committee: the rights of children to be raised by their biological parents where possible, childhood outcome differences in different family structures and the importance of having both male and female role models during a child's formative years.[82]

Some of the submissions on these matters were:

If you legislate to say that a same-sex couple is equivalent in every way to a heterosexual couple, what you are essentially saying is that fatherhood is an optional extra or motherhood is an optional extra because it does not really matter to an individual child that they have both a father and a mother.[83]

And

Gender differences exist; they are a fundamental reality of our biology and impact our psychology. Our maleness and femaleness is a key aspect to our personhood.[84]

And

It is certainly clear from the studies we have seen… that the availability of a male and female role model in a parental situation provides the best possible outcome for children.[85]

The law as a symbol

The Catholic Diocese of Sydney noted that, by passing this Bill, the State would imply that it is unnecessary and superfluous for children to have both a mother and a father:

It is contrary to everything we intuitively and sociologically know about effective parenting to claim that mothers can father just as well as men and that fathers can mother just as well as women…

[…]

I think [passage of the Bill would] send a message to the vast majority of heterosexual couples and families within the community that there is nothing particularly special about motherhood or fatherhood.[86]

Discrimination

Some evidence to the Senate Committee suggested not all discrimination is bad. That is, while undue and unfair discrimination is clearly undesirable:

…there are prudent reasons why societies discriminate on the basis of good social policy.[87]

'Discrimination' should not be taken as a synonym for 'unfair treatment' or 'injustice', but should be understood as a valid social concept, as discrimination simply means to 'distinguish' or to 'differentiate'.[88]

The Australian Christian Lobby supported the 2008 legislation to remove discrimination in a whole range of Commonwealth Acts for people in same-sex relationships. When questioned about the reason the ACL was not supportive of extending those reforms to the Marriage Act 1961, the ACL responded:

You will also be aware that the Australian Christian Lobby did not oppose the introduction of relationship registers in Tasmania and here in Victoria […]. We do not want to see homosexuals treated badly. We do not want to see homosexuals discriminated against in the areas of finance and property. But marriage is not an issue that we would want to see changed.[89]

Pointing again to the 2008 legislative reforms, the Australian Christian Lobby noted that:

Homosexual couples now have legal rights almost identical to those of heterosexual de facto couples… The question of ‘equality’ has therefore already been largely answered and homosexuals are treated fairly under Australian law in the same way that heterosexual de facto couples are.[90]

This was a view shared by many other submitters, including Family Voice Australia, who noted that every individual man and every individual woman has a right to marry:

So marriage is a defined entity and it has a whole variety of restrictions that give meaning to the notion of marriage. Within that meaning there is no discrimination. Anyone who satisfies [the criteria for marriage set out in the Marriage Act] is free to marry without discrimination.[91]

Cardinal Pell appeared to agree with this approach and, after noting that positive differentiation is important, submitted that:

It is not unjust discrimination against homosexual couples to uphold marriage as being between a man and a woman. Marriage and same-sex unions are essentially different realities. Justice, in fact, requires society to recognise and respect this difference.[92]

Appendix 2—Aternative forms of relationship recognition in Australia

Apart from marriage, legal recognition of relationships can be categorised in three ways:

•        Presumptive de facto recognition

•        Relationship registration, and

•        Civil unions.

Presumptive de facto recognition

In a process begun in the 1980s, de facto relationships have gradually been afforded similar rights to married relationships under Australian law.[93] Initially these rights were afforded to heterosexual relationships, however over the past 10 years this recognition has moved further, with Australia witnessing an incremental blurring of the distinction between the legal rights of same-sex and opposite-sex couples living together in a genuine de facto relationship.[94]

These changes were initially evident on a State and Territory level, where sustained reform programs were embarked upon.[95] New South Wales was the first state to implement comprehensive legislative reforms removing discrimination of same-sex couples. The Property (Relationships) Legislation Amendment Act 1999 (NSW) amended around 20 pieces of legislation on a range of matters including inheritance, accident compensation, legal aid and stamp duty. Where a definition of de facto relationship in existing law failed to include same-sex couples, these definitions were amended or replaced so that the law would no longer apply differently to couples of opposite sex and same sex. As a result of these reforms in NSW and similar enactments in all other states and territories, same-sex couples achieved equality with heterosexual couples in many areas of the law.[96]

In 2006, the Australian Human Rights Commission (formerly HREOC), released a report that identified 58 federal Acts that discriminated against same-sex couples.[97] The Federal Government, acting on this report, introduced the 2008 reforms comprising: the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 which provides for same-sex and heterosexual couples living in a de facto relationship to have their property and maintenance claims heard under the Family Law Act 1975[98]; The Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General Law Reform) Act 2008 which removes discrimination against same-sex couples from a raft of Commonwealth legislation, including veteran affairs, social security and income tax; and the Same-Sex Relationships (Equal Treatment Commonwealth Laws-Superannuation) Act 2008 which allows superannuation trustees to make same-sex couples and their children eligible for superannuation reversionary benefits.

In order to benefit from these law reforms, same-sex couples do not have to formalise their relationships. If a couple can satisfy ‘fairly nebulous, but what some might consider intrusive criteria, they will be deemed to be living in a genuine de facto relationship’.[99]

At federal level the essence of the definition of a de facto relationship is ‘a couple living together on a genuine domestic basis’ who are not legally married or related by family. This definition is substantially the same in State legislation. Both federal and State definitions contain an inclusive list of criteria to be used in determining whether a recognised relationship exists. These factors are:

•        the duration of the relationship

•        the nature and extent of their common residence

•        whether a sexual relationship exists

•        the degree of financial dependence or interdependence, and any arrangements for financial support, between them

•        the ownership, use and acquisition of their property

•        the degree of mutual commitment to a shared life

•        the care and support of children

•        the reputation and public aspects of the relationship.

No particular finding is required in relation to any one of these circumstances in deciding whether the persons have a de facto relationship. The decision-maker therefore has a significant discretion.[100]

At federal level, a de facto relationship can also exist between two people where one partner is legally married to someone else, or is in a registered relationship with someone else or is in another de-facto relationship.[101]

Registered relationships

Some Australian States and Territories have supplemented their de facto relationship laws with the introduction of relationship registers. Registers provide advantages over presumptive relationship recognition in that entering a ‘registered relationship’ provides conclusive proof of the existence of the relationship, thereby gaining all of the rights afforded to de facto couples under State and federal law without having to prove any further factual evidence of the relationship.

State relationship registration schemes allowing for same-sex and heterosexual relationship recognition currently exist in:

•        Tasmania (Relationships Act 2003)

•        Victoria (Relationships Act 2008)

•        New South Wales (Relationships Register Act 2010)

•        The Australian Capital Territory (Civil Partnerships Act 2008)

Queensland has also passed legislation, the Civil Partnerships Act 2011, to establish a relationships registration scheme with the scheme to come into force in 2012.

The detail of these schemes varies. For example the Victorian and Tasmanian registration schemes allow both for registration of domestic relationships and for caring relationships to be recognised.[102] The ACT, Tasmania and New South Wales schemes each recognise other’s state registered schemes, however Victoria does not. All registers allow for the recognition of a registered relationship to be revoked. Revocation, while similar to divorce, is arguably easier to obtain.[103]

At federal level registration of a relationship at State or Territory level is also conclusive proof of the existence of a de facto relationship.[104]

Civil unions

For most, if not all, practical and legal purposes, registration can be equivalent to a civil union, the main difference being that civil unions tend to permit a greater level of formal ceremonial and symbolic recognition.[105]

The ACT has civil partnership legislation. The Civil Partnerships Act 2008 (ACT) in addition to providing for relationship registration provides for ceremonial declaration of civil partnerships. A declaration of civil partnership must be presided over by an officially recognised civil notary. The Act does not seek to equate the effects of a civil partnership with a marriage.[106] Rather subsection 5(3) of the Act provides that the parties to a civil partnership ‘are taken, for all purposes of territory law, to be in a domestic partnership’. Significantly civil partnership declarations are reserved for same-sex couples whereas registration is available to opposite sex as well as same-sex couples.

The Queensland Civil Partnerships Act 2011, yet to come into force, will also provide for civil partnership declarations as well as registration. Declarations will be required to be performed in front of a civil partnership notary and they will be available to both same-sex and heterosexual couples.

To date, the ACT and Queensland are the only two Australian jurisdictions that have civil union legislation.

Do these forms of relationship recognition equate to marriage?

The literature suggests that Australian law has achieved substantial legal equality between all couples, married or unmarried, opposite sex and same-sex.[107] Nonetheless there are still some areas in which same-sex couples are treated differently. Some of these are described briefly below.

In most Australian jurisdictions adoption rights continue to be an area where same-sex couples are treated differently to opposite-sex couples. Only same-sex couples in New South Wales, the ACT and Western Australia have access to adoption on an equal footing to heterosexual couples.[108]

At the federal level same sex and heterosexual couples now come under the Family Law Act in regard to division of property and maintenance. However it is of note that there are additional thresholds for de facto relationships that do not apply to married relationships. Under section 90SB of the Family Law Act the court can make an order in relation to property adjustment and maintenance only if the unmarried couple have been engaged in the de facto relationship for at least two years, or where there is a child of the relationship, or where the relationship is registered under State or Territory law, or where a partner made substantial contributions and the order is necessary to prevent serious injustice.[109] In contrast, there is an automatic capacity on marriage to access the courts to address these matters.

Succession and intestacy laws are State matters and have been modified to provide equal rights for de facto same-sex and heterosexual couples. However arguably de facto couples are required to face more hurdles than the partners of a marriage. In particular, most States require that couples who are not married must be together in a de facto relationship for at least two years before they will be recognised as the deceased intestate’s partner. Note however that the requirements that the relationship be of a certain minimum duration, does not apply to registered partners.[110]

There are also small but not insignificant differences in relation to wills and in relation to the division of intestate estate between current de facto partners and a previous husband or wife.[111] For example in all States, a will is revoked upon marriage, unless the will was made in contemplation of the marriage. Only Tasmania and the ACT have equivalent provisions for those who enter into a significant relationship or civil partnership.[112]

Until very recently, another point of difference between the rights of de facto couples and the rights of married couples related to spousal privilege— the common law privilege of spouses not to testify against each other were assumed to have continued through the reception of English law in Australia. However on 30 November 2011, the High Court found against the existence of this privilege (unless it is granted in a specific statute).[113]

Another difference between marriage and partnership registration relates to portability with a major drawback of the State and Territory relationship registries being the lack of portability of the relationship status of registration. The ACT, Tasmania and New South Wales registers have some portability in that they each recognise other State registered schemes, however Victoria does not. In contrast, marriage is recognised anywhere in Australia.[114] The federal Government, who until recently was opposed to same-sex marriage, has at various times, called for the implementation of a nationally consistent state-based relationship registration scheme to overcome this disadvantage.[115]

Arguably one of the more significant remaining differences in the treatment of same-sex couples and married couples relates less to legal rights and responsibilities and more to the social and symbolic status that attaches to marriage. Supporters of same-sex marriage argue that relationship registration offers no equivalent to marriage because it lacks the special cultural significance, the ceremonial aspects, and the social status of marriage.[116] They say that the prohibition of same-sex marriage denies lesbians and gay men access to this particularly solemn and ceremonial act of expressing commitment to their life partners.[117]

As one submission to the Senate Committee inquiry into the Marriage Equality Bill 2009 argued:

A marriage ceremony puts the same-sex relationship into a context everyone is familiar with and has the potential to transform what the couple means to each other in the eyes of the family, friends and society in general.[118]

Appendix 3—Overseas developments

Same-sex marriage is currently legal in ten countries, which are the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland and Argentina. Six U.S. states and one U.S. district perform same-sex marriages, those being Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York and the District of Columbia. Mexico City also performs same-sex marriages which are recognised in all 31 Mexican states.[119] The countries that recognise same-sex marriage allow a civil marriage ceremony. The rights and responsibilities that attach to the same sex marriage are generally the equivalent of a heterosexual marriage.

Internationally, examples of civil union legislation include Britain's Civil Partnership Act, which came into effect in December 2005, and New Zealand's Civil Union Act 2004. Further instances include Denmark (since 1989), France (since 1999), Germany (since 2001) and Brazil (since 2011).[120]

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[1].               Relationships Act 2003 (Tas); Relationships Act 2008 (Vic); Relationships Register Act 2010 (NSW); Civil Partnerships Act 2011(Qld); Civil Partnership Act 2008 (ACT). Note, to date the Civil Partnerships Act 2011 (Qld) has not yet come into force.

[2].               Further information on this reforms can be found in the following Digests (the Bills for which were all enacted): M Neilsen, and K Magarey, Same Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 Bills Digest No. 20, 2008–09. http://www.aph.gov.au/library/pubs/bd/2008-09/09bd020.pdf and the

              M Neilsen, K Magarey and E Karlsen Same-Sex Relationship (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008 Bills Digest No. 44, 2008-09 http://www.aph.gov.au/library/pubs/bd/2008-09/09bd044.pdf

              Note also that the enactment of the legislation discussed in
M Neilsen, Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008; Bills Digest,2008-09 http://www.aph.gov.au/library/pubs/bd/2008-09/09bd009.pdf               brought about equal treatment at Commonwealth level of the breakdown of de facto heterosexual and same-sex relationships in relation to maintenance and property.

[3].               ‘Labor votes in favour of gay marriage’. The Age, 3 December 2011, viewed 30 January 2012, http://www.theage.com.au/national/labor-votes-in-favour-of-gay-marriage-20111203-1oc4a.html#ixzz1fQyaMTO2

[4].               T Abbott, Transcript of the Hon. Tony Abbott MHR Interview with Peter Van Onselen and Paul Kelly, Australian Agenda, Sky News, 11 December 2011, viewed 30 January 2012, http://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/1332708/upload_binary/1332708.pdf;fileType=application/pdf#search=%22sky%20news%20abbott%20marriage%20%20|%20EBSCO,AAP%22

[5].               P Coorey, ‘Liberals vow to fight for conscience vote’, Sydney Morning Herald, 15 December 2011, viewed 30 January 2011, http://parlinfo.aph.gov.au/parlInfo/download/media/pressclp/1296747/upload_binary/1296747.pdf;fileType=application/pdf#search=%22Liberals%20vow%20to%20fight%20for%20conscience%20%20|%20EBSCO,AAP%22

[6].               On 5 January 2012 the Sydney Morning Herald reported that Mr Jones has stated that the content of the Bill is not fixed at this time and that he hopes to speak to a wide group of interested parties to achieve as much agreement as possible on the content and the strategy of getting it through the Parliament. D Harrison, ‘MP takes vow of consensus on same-sex marriage bill’, Sydney Morning Herald, 5 January 2012, p. 4.

[7].               F Brennan, ‘Gay marriage debate has a long way to go’, Eureka Street, v. 21, no. 24, 6 December 2011, viewed 30 January 2011, http://www.eurekastreet.com.au/article.aspx?aeid=29333

[8].               FlagPost: Conscience votes on same-sex marriage legislation, December 22 2011, viewed on 10 February 2012, http://parliamentflagpost.blogspot.com.au/2011/12/conscience-votes-on-same-sex-marriage.html

[9].               G Barwick, ’The Commonwealth Marriage Act 1961’ Melbourne University Law Review, v. 3, 1961–62, p. 277, quoted in O Rundle, ‘An examination of relationship registration schemes in Australia’, Australian Journal of Family Law, v. 25, 2011, p. 126, viewed 6 February 2012, http://parlinfo.aph.gov.au/parlInfo/download/library/jrnart/1042710/upload_binary/1042710.pdf;fileType=application/pdf#search=%22rundle%20marriage%22

[10].               J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth, 1901, quoted in G Griffith, ‘Same-sex marriage’, Briefing Paper, NSW Parliamentary Library Research Service, No 3/2011, p. 20, viewed 17 January 2012, http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/Same-sexmarriage/$File/SAME-SEX+MARRIAGE+BP.pdf

[11].               G Barwick, op cit., p. 277.

[12].               O Rundle, op .cit., p. 127.

[13].               Ibid.

[14].               Subsection 5(1).

[15].               G Barwick, ‘Second reading speech: Marriage Bill 1960’, House of Representatives, Debates, 19 May 1960, p. 6822.

[16].               J Gorton, ‘Second reading speech: Marriage Bill 1961’Senate, Debates, 18 April 1961, p. 554.

[17].               (1866) LR 1 P&D 130 per Lord Penzance who said, ‘marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman to the exclusion of all others.’ The words, ‘as understood in Christendom’ are not included in section 46 of the Marriage Act.

[18].               J Norberry, Marriage Legislation Amendment Bill 2004, Bills Digest, no. 155, 2003–04, p. 2.

[19].               Inserted by the Marriage Amendment Act 2004.

[20].               P Ruddock, ‘Second reading speech: Marriage Legislation Amendment Bill 2004’, House of Representatives, Debates, 27 May 2004, p. 29356.

[21].               Ibid.

[22].               Ibid.

[23].               In a press release issued by the then Shadow Attorney-General, Nicola Roxon, quoted in J Norberry, op cit, p. 11

[24].               P Ruddock, ‘Second reading speech: Marriage Amendment Bill 2004’, House of Representatives, Debates, 24 June, p. 31459, viewed 6 February 2012, http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansardr/2004-06-24/0037/hansard_frag.pdf;fileType=application%2Fpdf

[25].               K Haines, Marriage Amendment Bill 2004, Bills Digest, no. 5, 2003-04, quoted in G Griffith op cit, p. 22.

[26].               Ibid.

[27].               A Nicholson, ‘The legal regulation of marriage’. Melbourne University Law Review, v. 29, 2005, p. 557, viewed 6 February 2012, http://parlinfo.aph.gov.au/parlInfo/download/library/jrnart/3QVH6/upload_binary/3qvh64.pdf;fileType=application/pdf#search=%22legal%20regulation%20of%20marriage%22

[28].               To date, there has not been second reading debate. The Bill and accompanying material can be found at: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fs792%22

[29].               G Griffith op cit, p. 22.

[30].               Explanatory Memorandum, Marriage Equality Amendment Bill 2010.

[31].               M Rout, ‘Same-sex marriage bid becomes menage a trios’, Australian, 10 February 2012, viewed 10 February 2012, http://parlinfo.aph.gov.au/parlInfo/download/media/pressclp/1408010/upload_binary/1408010.pdf;fileType=application/pdf#search=%22wilkie%20greens%20marriage%22

[32].               F Brennan, op cit., and G Williams, ‘States could legalise same-sex marriage, Sydney Morning Herald, 28 September 2010, viewed 6 February 2012, http://parlinfo.aph.gov.au/parlInfo/download/media/pressclp/245760/upload_binary/245760.pdf;fileType=application/pdf#search=%22williams%20states%20same-sex%20marriage%202010%22

[33].               A Lynch, G Williams and B Tegger (Gilbert and Tobin Centre of Public Law), Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Marriage Equality Amendment Bill 2009, November 2009, p. 2, viewed 17 January 2012, http://www.aph.gov.au/Senate/committee/legcon_ctte/marriage_equality/submissions/sublist1/Sub_m49.pdf

[34].               (1986) 161 CLR 376 at 389.

[35].               J Norberry, op cit, pp. 3-4.  This section of the Background Note relies heavily on this Bills Digest written by Ms Norberry.

[36].               See footnote 17.

[37].               For excerpts from relevant High Court judgements see Ian Ireland, ‘The High Court and the meaning of ‘marriage’ in section 51(xxi) of the Constitution’, Research Note no. 17, 2001-02, Department of the Parliamentary Library, viewed 10 February 2012, http://www.aph.gov.au/library/pubs/rn/2001-02/02rn17.pdf

[38].               J Norberry, op cit, pp. 3-4.

[39].               (1991) 174 CLR 379 at 392.

[40].               (1986) 161 CLR 376 at 456.

[41].               (1908) 6 CLR 469 at 610.

[42].               See (1962) 107 CLR 529 at 549 per McTiernan J & at 576-7 per Windeyer J.

[43].               Re Wakim, ex parte McNally (1999) 198 CLR 511 at 553.

[44].               A Lynch, G Williams and B Teggert, op. cit.,

[45].               G Griffith, op. cit., p. 26.

[46].               M Brock and D Meagher, ‘The legal recognition of same-sex unions in Australia: a constitutional analysis’,  Public Law Review, v. 22, 2011 p. 270, viewed 17 January 2012, http://parlinfo.aph.gov.au/parlInfo/download/library/jrnart/1307682/upload_binary/1307682.pdf;fileType=application/pdf#search=%22same%20sex%20marriage%20dan%20meagher%22

[47].               Ibid.

[48].               A Lynch, G Williams and B Tegger, op cit, p. 3.

[49].               G Williams, 'Could the States legalise same-sex marriage', Sydney Morning Herald, 28 September 2010.

[50].               Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557, 573, quoted in G Williams, ‘Advice regarding the proposed Same-Sex Marriage Act’, Constitutional Law and Policy Review, v. 9(2) 2006, p. 22.

[51].               A Lynch, G Williams and B Tegger, op cit, p. 3. It is of note that the situation for the Territories is different because of section 122 of the Constitution. Previous legislation, the Civil Unions Act 2006 (ACT) made provision for civil unions to be given the same legal recognition under ACT law as a marriage, but the Act was disallowed by the federal Government in the exercise of its powers under the Australian Capital Territory (Self Government) Act 1988 (Cth). See N Witzleb, op cit, p. 144 for further details.

[52].               Both of these opinions were later published in the October 2006 issue of the journal Constitutional Law and Policy Review. See also G Griffith, op cit., for a summary of these opinions.

[53].               A Lynch, G Williams and B Tegger, op cit, p. 4.

[54].               M Brock and D Meagher, op cit., p. 278.

[55].               The author is grateful for the very helpful contribution made by Kirsty Magarey to this section of the Background Note.

[56].               Note that this section does not deal with the related subject of the international obligations relating to laws recognising marriages between same-sex couples validly contracted overseas. That subject is covered in the Bills Digest to the Marriage Legislation Amendment Bill 2004, J Norberry, op cit.

[57].               Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994). University of Minnesota Human Rights Library. http://www1.umn.edu/humanrts/undocs/html/vws488.htm accessed 2 February 2012

[58].               Ibid.

[59].               P Gerber, committee hansard, 9 November 2009, p. 2, quoted in Senate Legal and Constitutional Affairs Legislation Committee, Marriage Equality Bill 2009: Report, 2009, paragraph 3.3, viewed 7 February, http://www.aph.gov.au/Senate/committee/legcon_ctte/marriage_equality/report/report.pdf

[60].               C Branson, Legal and Constitutional Legislation Committee, Supplementary Budget Estimates, Proof Committee Hansard, 19 October 2009, pp. 14-15.

[61].               A Lynch, G Williams and B Tegger, op cit.

[62].               Customary international law describes general practices accepted as law by States.  The development of customary international law is an ongoing process, making it more flexible than law contained in treaties.  The task of identifying or describing customary international law, involves consideration of the following elements:  the degree of consistency and uniformity of the practice; the generality and duration of the practice; the interests of specially affected States; and the degree to which the States who adopt the practice do so from a recognition that the practice is required by, or consistent with prevailing international law. From Jane Stratton, International Law, Hot Topics – Legal Issues in Plain Language, Legal Information Access Centre, 2009; See also  N Crombie, ‘Same-sex marriage and international law in the 9th circuit’, Dateline, viewed 10 February 2012, http://jurist.org/dateline/2011/12/nathan-crombie-marriage.php

[63].               Senate Legal and Constitutional Affairs Legislation Committee, Marriage Equality Bill 2009: Report, 2009, viewed 7 February, http://www.aph.gov.au/Senate/committee/legcon_ctte/marriage_equality/report/report.pdf

[64].               Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 3.2.

[65].               P Gerber, Committee Hansard, 9 November 2009, p. 3, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 3.3.

[66].               For example Mr Jamie Gardiner, Vice President of Liberty Australia, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 3.4.

[67].               Law Council of Australia, Submission m53, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 3.6.

[68].               Australian Coalition for Equality Submission m88, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 3.7.

[69].               Australian Marriage Equality, Submission m90, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 3.11.

[70].               A Sifris, Committee Hansard, 9 November 2009, p. 3, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 3.13.

[71].               Australian Marriage Equality, Submission m90, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 3.14.

[72].               S Argent, Committee Hansard, 9 November 2009, p. 32, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 3.26.

[73].               R Croome, Committee Hansard, 9 November 2009, p. 27, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 3.30.

[74].               P Gerber, Committee Hansard, 9 November 2009, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, p. 2.

[75].               Australian Human Rights Commission , Submission m89, p. 3, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 3.32.

[76].               M McDonald, Proof Committee Hansard, 9 November 2009, p. 41, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit,  paragraph 4.2.

[77].               C Meney, Director, Life, Marriage and Family Centre, Catholic Archdiocese of Sydney, Proof Committee Hansard, 9 November 2009, p. 39, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 4.3.

[78].               T Cannon, Research Officer, Australian Family Association, Proof Committee Hansard, 9 November 2009, p. 10, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 4.8.

[79].               Ibid, paragraph 4.9.

[80].               C Meney, op cit., p. 37, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 4.10.

[81].               C Meney, op cit., p. 39, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 4.10.

[82].               Ibid, paragraph 4.14.

[83].               C Meney, op cit, p. 44, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 4.24.

[84].               Dads4Kids, Fatherhood Foundation, Submission m44, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 4.25.

[85].               R P Ward, Australian Christian Lobby, Proof Committee Hansard, 9 November 2009, p. 58, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit,

[86].               C Meney, op cit, p. 37, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 4.27.

[87].               C Meney, op. cit, p. 38, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 4.30.

[88].               Australian Christian Lobby, Submission m71, p. 10, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 4.30.

[89].               R P Ward, Australian Christian Lobby, Proof Committee Hansard, 9 November 2009, p. 60, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 4.33.

[90].               Ibid, p. 57, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 4.34.

[91].               D Phillips, National President, Family Voice Australia, Proof Committee Hansard, p. 31, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 4.35.

[92].               G Pell, Submission m 26, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 4.36.

[93].               The De Facto Relationship Act 1984 (NSW) was the first state enactment to provide a specific mechanism for property settlement when de facto couples split up.

[94].               A Sifris and P Gerber, Same-sex marriage in Australia: A battleground for equality, Australian Journal of Family Law, v. 25, 2011, p. 96, viewed 7 February 2012, http://parlinfo.aph.gov.au/parlInfo/download/library/jrnart/1042706/upload_binary/1042706.pdf;fileType=application/pdf#search=%22incremental%20blurring%22

[95].               See for example, The Property (Relationships) Legislation Amendment Act 1999 (NSW); The Statute Law Amendment (Relationships) Act 2001 (Vic); The Discrimination Law Amendment Act 2002 (Qld); Statutes Amendment (Domestic Partners) Act 2006 (SA); Relationships Act 2003 (Tas) and Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA).

[96].               N Witzleb, ‘Marriage as the ‘last frontier’? Same-sex relationship recognition in Australia’, International Journal of Law, Policy and the Family, v. 25(2), 2011, p. 139.

[97].               Human Rights and Equal Opportunity Commission (HREOC), National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits `Same-Sex: Same Entitlements, Final Report, 2007.

[98].               Prior to the coming into operation of this legislation, property and maintenance disputes between unmarried couples were heard in the state courts under state legislation.

[99].               A Sifris and P Gerber, op. cit., p. 97.

[100].               Note also that some jurisdictions also offer protection to relationships that do not qualify as a de facto or couple relationship (described as ‘close personal relationship’ in NSW, ‘domestic relationship’ in the ACT, ‘caring relationship’ in Tasmania and Victoria, and ‘close personal relationship’ in SA). However these categories of relationship, with their less stringent criteria, generally receive relatively less recognition and rights than those categories of relationship where parties must be a cohabiting couple. For further information see N Witzleb, op. cit., p. 142.

[101].               Family Law Act, paragraphs 4AA(5)(a) and (b),

[102].               Section 5 of the Relationships Act 2008 (Vic) provides that a registrable caring relationship is: a relationship (other than a registered relationship) between two adult persons who are not a couple or married to each other and who may or may not otherwise be related by family where one or each of the persons in the relationship provides personal or financial commitment and support of a domestic nature for the material benefit of the other, whether or not they are living under the same roof, but does not include a relationship in which a person provides domestic support and personal care to the other person for fee or reward; or on behalf of another person or an organisation.

[103].               See O Rundle, op. cit. for a fuller explanation of the different legal requirements of relationship registration.

[104] .               The Acts Interpretation Act 1901 defines a person as the de facto partner of another person (whether of the same-sex or a different sex) if the person is either in a registered relationship under State or Territory law or if the person is in a de facto relationship with the other person (sections 2D, 2E and 2F).

[105].               The term ‘civil union’ seems to have been used first in legislation passed in Vermont in 2000, in response to the Vermont Supreme Court ruling in Baker v. Vermont, requiring that the State grant same-sex couples the same rights and privileges accorded to married couples under the law, G Griffith, op cit, p.4.

[106].               Previous legislation, the Civil Unions Act 2006 (ACT) made provision for civil unions to be given the same legal recognition under ACT law as a marriage, but the Act was disallowed by the federal Government in the exercise of its powers under the Australian Capital Territory (Self Government) Act 1988 (Cth). See N Witzleb, op cit, p. 144 for further details.

[107].               N Witzleb, op. cit., p. 159.

[108].               For details of the legislation relating to adoption in the various jurisdiction, see A Sifris and P Gerber, `Jack & Jill/Jack and Bill: The Case for Same-sex Adoption' AIternate Law Journal v. 34, 2009, p. 168.

[109].               N Witzleb, op. cit., p. 148.

[110].               Ibid, p. 150.

[111].               Further described in: Ibid, p. 151,

[112].               Ibid. Also gives examples of how partners of a same-sex and heterosexual relationships can be disadvantaged where a partner, dies intestate.

[113].               Australian Crime Commission v Stoddart [2011] HCA 47 (30 November 2011), transcript, viewed 7 February 2012, http://www.austlii.edu.au/au/cases/cth/HCA/2011/47.html

[114].               For further detail, see Rundle, op cit, p. 147.

[115].               The Hon Robert McClelland, Attorney-General, Transcript of conference, Parliament House, 30 April 2008, p. 5. 

[116].               N Witzleb, op cit., p.135.

[117].               Ibid, p. 136.

[118].               S Argent, committee hansard, 9 November 2009, p. 32, quoted in Senate Legal and Constitutional Affairs Legislation Committee, op cit, paragraph 3.26.

[119].               Wikipedia, ‘Same sex marriage legislation around the world’, viewed 19 August 2011, http://en.wikipedia.org/wiki/Same-sex_marriage_legislation_around_the_world; G Griffith, op cit., this paper explores in more detail the situation in overseas jurisdictions.

[120].               Ibid.