Same-sex marriage

Kirsty Magarey, Law and Bills Digest Section


The issue of same-sex marriage was recently referred to as the ‘issue that’s refused to go away this federal election campaign’. Certainly it seems to be receiving more focused attention than it did during the previous Parliament. The Government had focused on removing discrimination against same-sex relationships generally. However, the Parliament refused to countenance same-sex marriage, despite several Private Members’ Bills, including the Australian Greens’ Marriage Equality Amendment Bill 2009 (negatived in the Senate five to 45), and three earlier Private Members’ Bills introduced by the Australian Greens and Democrats in the last six years.

While the major parties have been unwilling to countenance same sex marriage the Rudd Government responded to a significant Human Rights and Equal Opportunity Report, Same Sex: Same Entitlements, in 2008, passing the:

  • Same-Sex Relationships (Equal Treatment in Commonwealth Laws) Acts 2008 on superannuation and general law reform
  • Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 and
  • the Evidence Amendment Act 2008.

The combined effect of these Acts significantly changed the legal status of same-sex couples, recognising them on an equal footing to de facto couples in areas as diverse as taxation law, social security law, immigration and superannuation. While the Acts removed many discriminatory Commonwealth provisions and gave recognition to same-sex couples as de facto couples, there was no substantive insertion of anti-discrimination principles covering same-sex couples. Another element the Commonwealth measures did not cover was the issue of a national relationships register, although the then Attorney-General expressed his hope that the states and territories would address these issues.

Four Australian states/territories have systems which allow same-sex couples to register their relationships - Tasmania, Victoria, the ACT and NSW. This recognition has a limited utility, however. While such arrangements are recognised for the purposes of some Commonwealth Acts, the schemes can have limited jurisdictional applicability, depending on the relevant state or territory arrangements.

Another issue traditionally associated with the married state is the adoption of children. Same-sex relationships are being increasingly recognised in this field. In Australia, WA, the ACT and to an extent Tasmania (‘stepchild adoption’ only), allow same-sex adoption, and have recently been joined by NSW, which passed the Adoption Amendment (Same-Sex Couples) Bill in September 2010.

International context

Attention to the issue of same-sex marriage in Australia often follows developments overseas. The impetus for the Marriage Amendment Act 2004 was the fear that same-sex marriages could take place overseas and subsequently be recognised in Australia under the Marriage Act 1961’s recognition of foreign marriages. Those amendments to the Marriage Act explicitly precluded same-sex marriages from being recognised at all, and in particular such unions which occurred overseas now form an exception to the general principle that Australia recognises all overseas marriages. A growing number of countries allow same-sex marriages (ten countries at the moment, and if certain specified areas in other countries were added to the count it would be higher), although sometimes the right to adopt has not followed the right to marry.

US developments often impact on Australia. Same-sex marriage is recognised in a number of US states and districts, and recent developments in California have been of particular interest. A court decision permitting same-sex marriage was overturned when a referendum was passed by 52 per cent of voters (Proposition 8), but this was in turn overturned by another court decision that the Proposition was discriminatory and unconstitutional. This is now the subject of appeal.

Positions of the parties

Both major parties have been consistent in their rejection of any proposals to recognise same-sex marriages. Indeed the Prime Minister has repeatedly said that she believes ‘marriage is marriage between a man and a woman,’ affirming her Party’s position that ‘the Marriage Act is appropriate in its current form,’ (her personal belief too). She also noted that ‘we have as a government taken steps to equalise treatment for gay couples’.

Mr Abbott’s position was summarised in the 2008 opinion piece, ‘Not for Adam and Steve’, which, while affirming the importance of ‘gay people having solid lasting relationships’, went on to query whether those same-sex couples ‘who want to claim the status of marriage [are] also ready for its burdens’ and concluded ‘the relationship between two people of the same sex cannot be a marriage because a marriage, by definition, is between a man and a woman.’ During the election campaign he reiterated his opposition to gay marriage in an interview but said that he favoured formal recognition of same-sex relationships and appropriate anti-discrimination measures. Generally views on this matter in the Coalition were shown as divergent during the debate on the 2008 Bills, while more recently a Tasmanian Liberal candidate (unsuccessful) declared his readiness to cross the floor in favour of same-sex marriages if it was a conscience vote.

The Australian Greens and Independent Mr Wilkie strongly support a conscience vote on a Private Member’s Bill addressing this issue. Were such a Bill to be given a conscience vote and were it to pass through the Parliament, there would still be the possibility for constitutional challenge. That could require the High Court to determine whether there is a sufficient nexus between the meaning of the term ‘marriage’ and its constitutional incidence (‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’) to give the Commonwealth power to regulate same-sex relationships. In 2009 the Gilbert and Tobin Centre of Public Law commented it ‘cannot be said with any great confidence that the High Court at the present time is likely to find the Commonwealth possesses legislative power to permit same-sex unions under section 51(xxi)’. These issues could only be finally resolved by the High Court. However, if such legislation were to be beyond the power of the Commonwealth, the possibility for a referral of power from the states remains.

Library publications and key documents

M A Neilsen, K Magarey, E Karlsen, et al, Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008, Bills Digest No. 44 2008-09,

J Norberry, Marriage Legislation Amendment Bill 2004, Bills Digest No. 155 2003-04,

Legal and Constitutional Affairs Legislation Committee, Marriage Equality Amendment Bill 2009, November 2009, Senate,