Bills Digest No. 155 2003-04
Amendment Bill 2004
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
to define marriage in the Marriage Act 1961, and
to prevent same sex couples adopting children from overseas
countries under arrangements involving multilateral or bilateral
This short Bill raises complex and controversial issues relating
the definition of marriage
the recognition of validly contracted foreign marriages for the
purposes of Australian domestic law, and
adoption and same sex couples.
This Digest provides some background material on each of these
issues before describing the Bill s main provisions.
At present, there is no definition of marriage in the Marriage
Act.(1) Until 1961, marriage in Australia was governed
by State and Territory law. A Marriage Bill was first introduced
into the Commonwealth Parliament in 1960. It did not define
marriage. Delivering the second reading speech, Attorney-General
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.(2)
The Bill was not dealt with in 1960 and was re-introduced in
1961 with some amendments. The question of the meaning of marriage
was raised in relation to both the 1960(3) and 1961
Bills. For instance, when the 1961 Bill was being debated in the
Senate, a Country Party Senator unsuccessfully proposed that
marriage should be defined and made a number of suggestions
marriage means the union of one man with one woman
for life to the exclusion of all others, such union being
contracted in the manner provided in this Act
Marriage means the voluntary union of one man with
one woman, for life to the exclusion of all
The last amendment was put to the vote and defeated by 40 votes
to 8. Senator Gorton, who had carriage of the Bill in the Senate,
had earlier commented:
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.(5)
While the Marriage Act does not define marriage , section 46 of
the Act incorporates the substance of the 19th century
English case law definition of marriage found in Hyde
v. Hyde & Woodmansee.(6) Section 46 says
that celebrants should explain the nature of the marriage
relationship with words that include:
Marriage, according to the law of Australia, is
the union of a man and a woman to the exclusion of all others,
voluntarily entered into for life [or words to that effect].
As indicated above, these words are a description or exhortation
rather than a definition.
While it can be argued that for the purposes of Australian law
marriage does not include unions between persons of the same sex,
it is also true that our understanding of who can contract a valid
marriage under Australian domestic law is changing/being
elucidated. For example, the Family Court was recently asked to
make a declaration that a marriage between a post-operative
transsexual person who had been born female ( Kevin ) and a woman (
Jennifer ) was a valid marriage. Both a single Family Court
judge(7) and, later, the Full Family Court(8)
declared the marriage valid. The Commonwealth had opposed the
application. It intervened in the first proceedings(9)
and then appealed the single judge decision to the Full Family
Court (it has not appealed the Full Family Court decision to the
It is also worth noting that marriages that could not be validly
celebrated in Australia are recognised for certain purposes by
Commonwealth law. Thus, section 6 of the Family Law Act
1975 deems foreign polygamous marriages to be marriages for
the purposes of that Act (such as children s matters or property
alteration). And subsection 88E of the Marriage Act (inserted in
1986) preserves section 6 of the Family Law Act.(10)
Item 1 of Schedule 1 of the
Bill provides that marriage means the union of a man and a woman to
the exclusion of all others, voluntarily entered into for life.
This definition will apply to all marriages covered by the Marriage
Act, including marriages celebrated in Australia.
It is arguable that inserting the proposed definition of
marriage into the Marriage Act does no more than incorporate the
common law understanding of the term. Whether this common law
understanding equates with or limits the constitutional meaning of
marriage is another question. 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 [section 51(xxi)].
Some High Court dicta indicate that the constitutional meaning
of marriage in section 51(xxi) is confined to the definition found
in Hyde.(11) There are also more
liberal opinions that suggest that the label, marriage , could
apply in an extended range of circumstances prescribed by
Parliament.(12) Extracts from some High Court cases
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
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.(14)
On the other hand, as early as 1908 in Attorney-General for
NSW v. Brewery Employees Union of
NSW(15) 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, McTiernan J and Windeyer J appear to have taken
opposing views about whether marriage is limited to monogamous
marriage.(16) 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 of 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.(17)
For a view that the Commonwealth has the power to legislatively
recognise domestic same sex marriages, see Dan Meagher, The times
are they a-changin? Can the Commonwealth parliament legislate for
same sex marriages? , (2003) 17 Australian Journal of Family
It is worth noting that limitations that may apply to the
meaning of marriage in section 51(xxi) of the Constitution will not
necessarily apply to the recognition of foreign marriages (where
the external affairs power in section 51(xxix) of the Constitution
The amendments contained in Schedule 1 of the
Bill also mean that marriages between same sex couples validly
contracted overseas will not be recognised in Australia. A
(growing) number of overseas jurisdictions now allow same sex
partners to marry or enter civil unions (a list is provided as an
Appendix to this Digest). And there have been media reports in
recent months that some Australian same sex couples who have
married overseas may seek a declaration from the Family Court that
their marriages are valid in Australia.(18)
The question of the validity of marriages contracted overseas
could arise in legal proceedings either directly (by way of an
application for a declaration of validity as indicated above) or
tangentially for example, the question could arise incidentally in
proceedings for property adjustment.
There are two mechanisms that may, either now or in the future,
enable a foreign same sex marriage to be recognised in Australia.
These are the Hague Convention on Celebration and Recognition of
the Validity of Marriage and the common law rules of private
international law. The Bill would close both of these avenues.
Australia is a party to the Hague Convention on Celebration and
Recognition of the Validity of Marriage (the Marriage Convention ).
Some of the reasons for the development of the Convention and its
implementation in Australia are set out in the second reading
speech for the Marriage Amendment Bill 1985:(19)
For many years it has been recognised that
marriage is such a fundamental and universal human institution
that, wherever possible, a marriage celebrated in one country
should be recognised as valid all over the world. Nevertheless,
there are limits to the extent to which the policy of one country
is acceptable in another. To reconcile these conflicting goals, a
complex set of rules has developed in the common law, governing
recognition of marriages involving parties whose domicile is not
Australia, or marriage celebrated outside Australia.
In 1983 35% of all marriages taking place in
Australia involved one party who had been born overseas. The common
law rules as they now stand would refer the validity of those
marriages where one party was still domiciled outside Australia,
partly to the law of the domicile. If a marriage takes place
overseas, it might be necessary to refer to the law of a number of
countries to determine its validity in Australia. The Hague
Conference on Private International
Law in 1976 finalised the Convention
on the Celebration and Recognition of the Validity of Marriages
('the Hague Convention') to facilitate the recognition in one
country of marriages solemnised in another
Chapter II of the Convention obliges Australia to recognise
marriages validly entered into in foreign states (Article 9). For
Convention purposes, it is immaterial whether the foreign state is
a party to the Convention or not.(21)
Other important provisions in Chapter II of the Convention
Article 8, which provides that Chapter II does not apply to
certain marriages such as proxy marriages, posthumous marriages and
Article 11, which contains an exhaustive list of exceptions to
the general obligation to recognise foreign
marriages.(22) For instance, a Contracting State can
refuse to recognise a marriage if one of the spouses is already
married or the spouses are in a prohibited relationship
Article 13, which provides that a Contracting State can apply
rules of law more favourable to the recognition of foreign
marriages than the Convention would allow for, and
Article 14, which provides that a Contracting State may refuse
to recognise the validity of a marriage where such recognition is
manifestly incompatible with its public policy .
Same sex marriages are not listed in Article 8 as marriages to
which Chapter II does not apply. Nor are they listed as one of the
exceptions to the general obligation to recognise foreign marriages
that are set out in Article 11.
The object of Part VA of the Marriage Act, which was inserted in
1986, is to give effect to Chapter II of the Marriage
Convention.(23) The effect of Part VA is that a marriage
will be recognised in Australia if it is valid according to the law
of the place of celebration. Like the Marriage Convention, Part VA
does not explicitly exclude foreign same sex marriages from
recognition nor is marriage defined for Part VA purposes.
There is no definition of marriage in the Convention. However,
the issue of same sex marriage was raised during the drafting
process and is reflected in the Convention s travaux
preparatoires.(24) The travaux
preparatoires can be used to understand the meaning of
marriage in the Convention.
At the time the Convention was drafted there were suggestions
out of an abundance of caution the Convention
could be limited to marriages between persons of different sexes.
The question of whether such provision should be made was put to
governments in a questionnaire. Most, including Australia, saw no
need to make such a provision. (25)
Three points can be noted here. First, governments were on
notice about gay marriages but took no action to exclude them from
the terms of the Convention. Second, gay marriages are not
explicitly excluded from recognition under the Convention. Third,
the rapporteur s report refers to marriage in its broadest,
international sense .
It is arguable that broadest, international sense does not
require international consensus to occur before gay marriage can be
regarded as marriage under the Convention.(26) There is
thus an argument that same sex marriage is encompassed by the
broadest, international sense of the term marriage because a
(growing) number of overseas jurisdictions have legislated for same
sex marriage or given same sex relationships virtually equivalent
rights (though without the label of marriage ).
Can it be argued that a Contracting State can refuse to
recognise foreign same sex marriage because such recognition would
be manifestly incompatible with its public policy under Article 14?
It is unlikely that such an argument would stand up in Australia
today consensual gay sex between adults is no longer a criminal
offence in any Australian jurisdiction, most States and Territories
have now removed most discrimination based on sexuality from their
statute books and the Commonwealth itself is now committed to
giving gay couples rights under superannuation and income tax laws.
So, in the words of Professor Peter Nygh, It is difficult to see on
what basis public policy could be invoked. (27) Further,
the Convention s travaux preparatoires state that
Contracting States are obliged to apply the public policy exception
It can be argued that the word marriage in the Convention does
not extend to same sex marriages. For instance, it could be said
that when deciding what marriage in its broadest, international
sense means under the Convention it is not enough that a few
countries have decided to legislate for gay marriage. More
consensus is needed than that. In the words of one
Clearly national or domestic definitions should be
transcended. This is certainly the case in Australia, where it is
accepted that the Hyde v Hyde definition
only refers to marriage under domestic law and does not define the
extent to which foreign institutions will be recognised. Thus, it
has not prevented the recognition of polygamous marriages concluded
abroad between foreign parties. Nor is it necessary that there be
an international consensus on the meaning of marriage. On the other
hand, it cannot be accepted that the definition by a particular
State of any relationship whatever as a marriage would have to be
recognised as such.
The correct position must lie somewhere between a
universal consensus and an idiosyncratic exception. There must be
an acceptance transcending a particular national system that a
particular relationship constitutes a marriage. That seems to be
what is meant by a broad, international sense . That certainly was
the case with polygamy even though it was not universally accepted.
That is not yet the case with same gender relationships which in
Australia and England, and one assumes in many other countries, is
not even regarded as a void marriage. That consensus may come in
time. But it is not yet.(30)
As stated above, there is therefore an argument that the
broadest, international sense of the expression marriage does not
yet include same sex marriage (although it might one day) because
not enough countries have legislated for same sex marriage or
because even those that do may not afford all the same rights to
same sex couples as they do to heterosexual married couples or they
may label same sex unions in a different way (eg call them civil
unions or registered relationships, but not marriages).
Another way that may exist now or in the future for foreign same
sex marriages to be recognised in Australia is via the common law
rules of private international law.(31) Writing in 2002,
Professor Nygh thought that this was the most likely authority for
a future recognition of same gender marriages rather than the
Convention. (32) The Bill would remove this path to
The amendments in Schedule 2 of the Bill are
designed to prevent same sex couples from adopting children from
overseas under multilateral or bilateral arrangements.
The constitutional division of power in Australia has meant that
adoption has traditionally been a matter for the States and
Each Australian State, the Australian Capital Territory and the
Northern Territory have their own adoption laws. Among other
things, these laws prescribe eligibility and suitability criteria
for adoption. Eligibility criteria vary. At present, three
jurisdictions enable same sex couples to adopt (subject to their
meeting other eligibility and suitability requirements). These
jurisdictions are Western Australia, the Australian Capital
Territory and Tasmania.(33) Most State and Territory
laws also enable a court to make an adoption order in favour of a
single person usually if special or exceptional circumstances
exist. Provisions for single person adoptions may enable a gay
person to adopt.
Intercountry adoption is discussed in more detail in the next
section. However, it is worth noting that eligibility of applicants
for intercountry adoption is determined both by the criteria set
down in State or Territory law and the requirements of the sending
country. For example, in its Intercountry Adoption Kit the
Victorian Government states that only one of the overseas countries
it works with accepts couples living in a de facto relationship
(Ethiopia) and that only a few countries will accept single
applicants.(34) What this means in practice, is that
there may be few opportunities for same sex couples to adopt
children from overseas (other than indirectly if both the
Australian jurisdiction and the overseas country permit a single
person to adopt).
Intercountry adoption is a recent phenomenon in Australia with
few intercountry adoptions occurring before 1975:
It only became a recognised avenue of adoption
following the airlift in 1975 of Vietnamese war orphans to Western
nations: the 292 children who came to Australia were adopted by
Since that time many Australians have adopted children from
overseas particularly from Asia and Latin America.(36)
However, the number of intercountry adoptions has fluctuated from
year to year. The Australian Institute of Health and Welfare
records that in 1988-89 there were 394 such adoptions. In 2002-03,
there were 278 intercountry adoptions. In 2002-03, the latest year
for which data is available, over one-third of children came from
South Korea, 17% came from China, 14% from Ethiopia and 12% from
Intercountry adoption is also a global phenomenon. In the period
1980-1989 around 170,000-180,000 children were involved in
intercountry adoption, with 90% of children coming from 10
countries.(38) The Hague Convention on Protection of
Children and Co-operation in respect of Intercountry Adoption (the
Intercountry Adoption Convention ) was negotiated because of the
lack of uniform standards in relation to intercountry adoption. The
Convention entered into force on 1 May 1995 and was ratified by
Australia in 1998.(39) As at 25 May 2004, 60 nations had
acceded to or ratified the Convention.(40)
The objects of the Intercountry Adoption Convention are to:
establish safeguards that will ensure that intercountry
adoptions take place in the best interests of the child and with
respect to his or her fundamental rights
establish a cooperative system among Contracting States so that
safeguards are respected and the abduction, sale of and trafficking
in children is prevented, and
ensure that Contracting States recognise adoptions made in
accordance with the Convention.(41)
The importance of the Intercountry Adoption Convention for
Australia was outlined in the treaty s National Interest
Analysis, which was prepared by the Australian Government:
The importance of the Convention for Australia
lies in the benefits of having internationally agreed minimum
standards for processing intercountry adoptions. The Convention
establishes legally binding standards and safeguards to be observed
by countries participating in intercountry adoption, a system of
supervision to ensure that these standards are observed, and
channels of communication between authorities in countries of
origin and countries of destination for children being adopted. By
establishing uniformity of standards and predictability of
procedures between countries, the Convention will assist parents in
Australia who wish to adopt children from other Convention
The day-to-day implementation of the Intercountry Adoption
Convention is the responsibility of State and Territory adoption
authorities.(42) These State and Territory authorities
are called Central Authorities for Convention purposes. They have
responsibility, under a 1998 agreement signed by Commonwealth,
State and Territory Community Service Ministers, for processing day
to day adoption casework, approving adoptions and making decisions
on whether to accredit non-government organisations to carry out
functions in relation to intercountry adoption .(43)
There is also a Commonwealth Central Authority whose functions are
primarily to facilitate co-operation between authorities in
Australia and authorities in Convention countries.
Although the States and Territories have
primary responsibility for day to day adoption matters, the
Commonwealth also plays an important role. For instance, the
Department of Immigration and Multicultural and Indigenous Affairs
makes decisions about whether to issue Adoption
Visas.(44) To be eligible for such a visa, the adoption
must have been approved by the relevant State or Territory welfare
authority, the child must be aged under 18 (at both the time of the
application and the time of the decision) and the child must meet
The Commonwealth Parliament also passed legislation in
1998(46) to facilitate arrangements for the
implementation of the Intercountry Adoption Convention and to
enable regulations to be made to give effect to bilateral
arrangements with other countries on intercountry adoption
.(47) Bilateral arrangements are referred to because, in
addition to the Hague Convention, there are also
government-to-government agreements relating to intercountry
adoption made between a State/Territory and a foreign country.
Following the passage of the 1998 Act two regulations were made
by the Commonwealth:
the Family Law (Hague Convention on Intercountry Adoption)
Regulations 1998 give effect to the Intercountry Adoption
Convention by providing for the appointment of Central Authorities
to carry out Convention obligations, by providing that adoption
decisions made in other countries will be recognised by Australian
law, and by conferring jurisdiction on courts to make adoption
orders under the Convention(48)
the Family Law (Bilateral Arrangements Intercountry
Adoption) Regulations 1998 provided that adoptions carried out in
prescribed countries are recognised for the purposes of Australian
law. So far, China is the only country that is a prescribed
According to one author:
Before the [Convention] came into being, the
Special Commission (on intercountry adoption) and the Diplomatic
Conference considered whether de facto couples, same sex couples,
lesbian or homosexual individuals could be covered by the
Convention and, ultimately, delegates opted to limit themselves to
the issue of spouses male and female and a person , married or
single . The issue of homosexuals or lesbians being able to adopt
was considered too sensitive and not within the scope of the Hague
This is reflected in the drafting of the Intercountry Adoption
Convention, which does not deal with the eligibility of prospective
parents but leaves this as a matter for Contracting
The Opposition, Democrats and Greens have all made public
statements about the Bill.
On 28 May 2004 Green MP, Michael Organ, wrote to members of the
ALP asking them to oppose the Bill.(51)
Australian Democrats spokesperson on law and justice, Senator
Brian Greig has called for a Senate inquiry into the Bill. Senator
The Howard Government s plans to block marriage
rights for gay and lesbian couples wrongly sends the message that
same-sex couples are not socially valid, significantly caring or
worthy of legal protections.
The proposed ban on overseas adoptions sends the
message that gay and lesbian couples are not capable of offering a
caring, stable family environment in which to raise children. This
is absolutely appalling. (52)
In a press release issued on 1 June 2004, the ALP s Shadow
Attorney-General, Nicola Roxon MP, said:
The Labor Party will not oppose the PM's
measures to confirm in the Marriage Act the common law
understanding that marriage is a union between a man and a
woman to the exclusion of all others . Consistent with
this, Labor will also not oppose a prohibition on
recognising foreign same sex
While Labor questions the PM's motives and reasons
for bringing on this issue for debate now, and questions whether it
is necessary Labor does not oppose these parts of the Bill which
merely confirm existing law and our previous commitments to
keeping marriage as a heterosexual institution.
However Labor does not support the Government s
attempts to interfere in adoption issues.
Ms Roxon also said the ALP would seek to refer the Bill to a
Greens Senator, Bob Brown, says that the Greens will oppose the
Bill and also seek to refer it to a Senate
Item 1 of Schedule 1 defines
marriage as the union of a man and a woman to the exclusion of all
others, voluntarily entered into for life. In substance, this is
the common law definition contained in Hyde (minus the
reference to Christendom ).
The definition has a number of components. These include:
for life . These words sit uneasily with modern divorce laws
which enable a marriage to be terminated if the parties have lived
separately and apart for 12 months.(55) Under the
Marriage Act as it presently stands, lack of intention to wed for
life at the time of the ceremony will not mean that a marriage is
invalid unless the facts in a case show lack of real
consent.(56) A question that may arise if a
definition is inserted that contains the words, for life ,
is whether a lack of intention to wed for life at the time of the
ceremony means that there is no marriage at all. Another way of
looking at this question is to ask whether it is only the words, a
man and a woman , in the definition that will have any substantive
operation and, if so, why.
a man and a woman . The meaning of these words remains an open
question do they enable a pre-operative transsexual person or an
intersex person to contract a valid marriage?
Item 2 ensures that this definition applies to
Part VA of the Marriage Act (the Part that deals with the
recognition of foreign marriages) as well as to rest of the
Item 2 also makes particular reference to
section 88E of the Marriage Act. As stated earlier, the purpose of
Part VA is to implement the Marriage Convention etc. However, the
Marriage Convention is not the only way marriages contracted
overseas can be recognised by Australian law. The rules of private
international law provide another avenue. Existing section 88E
preserves the common law rules of private international law. So the
reference to section 88E in item 2 is designed to
ensure that foreign same sex marriages cannot be recognised in
Australia either under the Marriage Convention or under the common
law rules of private international law.
As stated earlier, section 88E also preserves section 6 of the
Family Law Act (deeming polygamous marriages celebrated outside
Australia to be marriages for Family Law Act purposes). Subsection
88E(4) may also preserve the operation of other Australian laws
such as any Australian laws that recognise indigenous tribal
marriages.(57) It is not clear whether the insertion of
a definition of marriage that will be applied to section 88E will
affect section 6 of the Family Law Act or any laws currently
preserved by subsection 88E(4).
Item 3 provides that a union between two
persons of the same sex contracted in a foreign country cannot be
recognised as a marriage in Australia.
The amendments in Schedule 2 do not affect
Australian laws that enable same sex couples to adopt a child in
Item 1 of Schedule 2 prevents
regulations to facilitate same sex couples adopting a child from
overseas being made either under the Hague Convention or bilateral
Item 2 provides that it is unlawful for any
person (including a State or Territory officer) to facilitate or
provide for the adoption of a child from overseas by a same sex
couple under the Intercountry Adoption Convention or a bilateral
agreement made between a State/Territory and a foreign country. The
expression, same sex couple is not defined. Further, item
2 may not necessarily prevent one person in a same sex
couple from adopting a child from overseas or prevent a single gay
person adopting (assuming single person adoption is permitted by
the Australian jurisdiction and the foreign country).
One purpose of the amendments defining marriage is to reflect
the understanding of marriage held by the vast majority of
Australians .(58) The Government says 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.(59)
It may, of course, be that the Hyde definition
represents the constitutional meaning of marriage in section
51(xxi) now and for the future. However, as Blackshield and
Williams point out:
The Commonwealth Parliament cannot control the
limits of its own power. Its source of power is the Constitution.
Whether an enactment falls within an area of power granted to the
Parliament by the Constitution must ultimately be determined not by
the Parliament but by the High Court.(60)
This a reference to the stream and source doctrine referred to
by Fullagar J in Australian Communist Party v.
Commonwealth.(61) In this case His Honour said:
The validity of a law or of an administrative act
done under a law cannot be made to depend on the opinion of the
law-maker, or the person who is to do the act, that the law or the
consequence of the act is within the constitutional power upon
which the law in question itself depends for its
Item 1 of Schedule 1 of the
Bill says that marriage means the union of a man and a woman
to the exclusion of all others, voluntarily entered into for life.
(63) On stream and source principles there may be a
question of how far Parliament can go in determining or limiting
the scope and extent of the marriage power in section 51(xxi) of
The Government is fundamentally opposed to same sex couples
adopting children.(64) It takes the view that the
majority of Australians [think that], children, including adopted
children, should have the opportunity, all other things being
equal, to be raised by a mother and a father. (65)
On the other hand it can be argued, that matters of eligibility
and suitability have been and should remain matters for the States
and Territories(66) decided in accordance with their
laws and policies, based on individual assessments and on the best
interests of the child. It might also be said that while the
Commonwealth may have the constitutional power to make its
amendments,(67) they are not matters that fall within
the scope of the Intercountry Adoption
Some would also take the view that there is no positive or
negative correlation between parenting ability and sexual
orientation and that the focus should be on whether the person is
suitable to meet and promote the child s best interests and not on
stereotypes and assumptions about homosexuality and marital status.
Nor is there a definition in the Family Law Act 1975
although the Hyde definition is referred to in section 43
of that Act.
House of Representatives, Hansard, 19 May 1960 , p.
See, for example, EG Whitlam MP, House of Representatives,
Hansard, 17 August 1960, p. 117.
Senate, Hansard, 18 April 1961, p. 549.
Senate, Hansard, 18 April 1961, p. 554.
(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 or section 43 of the
Family Law Act.
Re Kevin: Validity of a Marriage of a
Transsexual (2001) 28 Fam LR 158.
See Attorney-General v. Kevin &
Jennifer (2003) 30 Fam LR 1. The Full Family Court
(Nicholson CJ, Ellis & Brown JJ) said, For the purposes of
these proceedings it was common ground that marriage is a union
between a man and a woman signified by certain formalities and
carrying with it a status recognised by the law. The issue of
whether a marriage can occur between people of the same sex is not
at issue in this case. Similarly, the status of pre-operative
transsexual persons is not directly in issue. [at 17]
The Commonwealth had argued that the 1971 English case of
Corbett  P 83 represented the law in Australia and
thus that Kevin was not a man for the purpose of the Marriage Act.
Had the Commonwealth s arguments been accepted the marriage of
Kevin and Jennifer would not have been recognised by the Court.
Peter Nygh, The consequences for Australia of the new
Netherlands law permitting same gender marriages , (2002) 16
Australian Journal of Family Law, pp. 139-45.
See endnote 2.
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 17, 2001-02.
(1991) 174 CLR 379 at 392.
(1986) 161 CLR 376 at 456.
(1908) 6 CLR 469 at 610.
See (1962) 107 CLR 529 at 549 per McTiernan J & at 576-7 per
Re Wakim, ex parte McNally (1999) 198
CLR 511 at 553.
Under section 113 of the Family Law Act. For media reports see,
for example, Gay husbands to test their marriage in court , The
Age, 4 February 2004; Gay marriage loophole to be axed ,
Courier-Mail, 26 May 2004.
Part VA of the Marriage Act (the Part dealing with the
recognition of foreign marriages) was inserted following the
passage of the Marriage Amendment Bill 1985.
Senator Gareth Evans, Second Reading Speech, Marriage Amendment
Bill 1985 , Senate, Hansard, 22 February 1985, p. 58.
There are few Contracting States Australia, Egypt, Finland,
Luxembourg, the Netherlands and Portugal.
Article 11 commences, A Contracting State may refuse to
recognize the validity of a marriage only where, at the time of the
marriage, under the law of that State .
Nygh, op. cit.
ibid, p. 142.
Although this proposition is put by Nygh, op. cit.
ibid, p. 143.
See Marcia Neave, New rules on recognition of foreign marriages
insomnia for lawyers , Australian Journal of Family Law,
4(3), November 1990, pp. 190-210.
Note that the number of foreign jurisdictions where same sex
marriages or civil unions can celebrated has increased since the
article was written in 2002.
Nygh, op. cit.
As was pointed out in the second reading speech for the Marriage
Amendment Bill 1985:
Chapter II of the Hague Convention imposes
upon countries that are parties to the Convention an obligation to
recognise marriages that are validly celebrated under the law of
the place of celebration, subject to certain basic exceptions. This
obligation will involve recognition being given to some marriages
which would not be considered valid under the common law rules of
private international law.
In implementing the Convention the Bill also
provides, in new section 88E, that these common law rules will
remain in operation to a limited extent, so that even if a marriage
would not be recognised as valid under the Convention, it will
nevertheless be recognised as valid if the common law rules so
provide. Essentially, the Convention operates as a gloss upon the
common law, as it will provide an additional basis upon which the
recognition of validity of foreign marriages may be afforded.
(Senator Gareth Evans, Senate, Hansard, 22 February
1985, p. 58).
Nygh, op. cit., p. 143.
In order to adopt in Tasmania a gay couple must be in a
See Victorian Department of Human Services, Intercountry
Adoption Kit Introduction to the
NSW Law Reform Commission, Review of the Adoption of
Children Act 1965 (NSW), Report 81, 1997, p. 374.
Australian Institute of Health and Welfare, Adoptions
Celica Bojorge, Intercountry adoptions: in the best interests of
the child? , (2002) 2(2) Queensland University
of Technology Law Journal, pp. 266-91 citing N
Cantwell, Intercountry Adoption (1998) 4 Innocenti Digest
2 at http://www.unicef-icdc.org/publications/pdf/digest4e.pdf
Australia s instrument of ratification contains a number of
declarations: see http://www.hcch.net/e/status/stat33e.html
National Interest Analysis, Convention on
Protection of Children and CO-operation in respect of Intercountry
Adoption, done at the Hague on 29 May
1993. Note also that the
Government Response to recommendations dealing with the
Intercountry Adoption Convention in the Joint Standing Committee on
Treaties Report No. 15 that policy development and
administration in adoption matters in Australia has traditionally
been the responsibility of State and Territory Governments. The
Commonwealth Government does not consider that Australia s
ratification of the Hague Convention should be the occasion for a
substantial change in responsibilities in this area.
National Interest Analysis, Convention on Protection of
Children and CO-operation in respect of Intercountry Adoption, done
at the Hague on 29 May 1993.
See: Australian Immigration Fact Sheet, Adopting Children
from Overseas, http://www.immi.gov.au/facts/36adopting.htm
Family Law Amendment Act (No. 1) 1998.
Explanatory Memorandum, Family Law Amendment Bill (No. 1)
Explanatory Statement issued with the Regulations.
Borjorge, op. cit, pp. 277-8.
Articles 5(a) and 15(a).
Michael Organ MP, Media Release, Organ asks the ALP to
cross the floor on same sex laws , 28 May 2004.
Senator Brian Greig, Press Release, Gay marriage ban
needs Senate inquiry , 28 May
Shadow Attorney-General, Media Statement, Labor
position on Government Bill , 1 June 2004.
Senator Bob Brown, Media Release, Labor s decision on
gay marriage ban entrenches discrimination, 1 June 2004.
In contrast, see Hutley JA who said that the reference to the
common law definition of marriage in the Family Law Act can only be
regarded as propaganda contradicted by the substantial provisions
of the Act which, except for the creation of counselling
facilities, are directed to the speedy termination of the married
state Seidler v. Schallhofer  FLC 91-273 at 77,
551-2. See also Watson J who said of the same provision, It is a
statement of the traditional concept of marriage in Australia a
voluntary monogamous heterosexual relationship entered into for an
indefinite period, hopefully for life In the Marriage of S
(1980) FLC 90-820 at 75,177.
See Stephen Parker, Patrick Parkinson & Juliet Behrens,
Australian Family Law in Context. Commentary and
Materials, 2nd ed, 1999.
Discussing the effect of subsection 88E(4), Professor Marcia
Neave commented, some Commonwealth and Northern Territory
legislation recognises Aboriginal tribal marriages Section 88E(4)
preserves the operation of provisions in this form. Neave, op.cit,
Attorney-General, Second Reading Speech, Marriage Legislation
Amendment Bill 2004 , House of Representatives, Hansard,
27 May 2004, p. 29161.
Attorney-General, Second Reading Speech, Marriage Legislation
Amendment Bill 2004 , House of Representatives, Hansard,
27 May 2004, p. 29161.
Tony Blackshield & George Williams, Australian
Constitutional Law and Theory. 3rd ed,
(1951) 83 CLR 1 at 258.
(1951) 83 CLR 1 at 258.
Parker et al, op. cit.
Attorney-General, Second Reading Speech, Marriage Legislation
Amendment Bill 2004 , House of Representatives, Hansard,
27 May 2004, p. 29161.
And the country of origin.
For instance, if not under the treaties aspect of the external
affairs power, then under the matters external to Australia aspect
of the power, the territories power and the migration power.
The Hague Convention is primarily concerned with the processes
associated with intercountry adoption. It does not deal with the
eligibility of prospective parents of adopted children but leaves
this as a matter for contracting States [see for example, articles
5(a) and 15(a)].Indeed, on one reading, the Convention does not
apply until after both parties to the prospective adoption have
been identified [article 2].
Borjorge, op. cit., p. 278.
This list indicates where gay marriage is allowed and where
registered partnerships or civil unions are granted. Countries or
jurisdictions considering laws which allow gay marriage and civil
unions are also listed. The list reflects the law at 1 June
or Same-Sex Marriage
Canada provinces of Ontario and British Columbia
USA Massachusetts (from 17 May 2004) : the first USA State to allow
Note: 39 USA States have
passed laws prohibiting or refusing to recognise same-sex
grant homosexual couples the same (or substantially the same) legal
rights as married heterosexuals.
Portugal more limited civil
Canada Quebec : civil unions recognised
Considering Civil Unions/Partnerships
Information provided by Catherine Lorimer,
Parliamentary Library. Readers are also referred to New Zealand,
Parliamentary Library, Civil unions and same-sex marriage an
international perspective , i-brief, 2003/20, 3 March
4 June 2004
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to
Senators and Members of the Australian Parliament. While great care
is taken to ensure that the paper is accurate and balanced, the
paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
this paper is provided for use in parliamentary debate and for
related parliamentary purposes. This paper is not professional
legal opinion. Readers are reminded that the paper is not an
official parliamentary or Australian government document.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
© Commonwealth of Australia 2004
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
Published by the Parliamentary Library, 2004.
Back to top