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Marriage Equality Amendment Bill
2013
Introduced into the Senate on 25
February 2013
By:
Senator Hanson-Young
1.1
This
bill seeks to amend the Marriage Act 1961 to define marriage as a union of
two people (regardless of gender); to clarify that ministers of religion are
not bound to solemnise marriage by any other law; to remove the prohibition of
the recognition of same sex marriages solemnised in a foreign country; and to
include a regulation-making power so that consequential amendments can be made
to other Acts.
Compatibility with human
rights
1.2
The bill is
accompanied by a self-contained statement of compatibility. The statement notes
that the bill 'does not
negatively engage any of the applicable rights or freedoms' and positively
engages with the rights contained in article 23 of the International Covenant
on Civil and Political Rights (ICCPR) (the right of men and women of
marriageable age to marry), article 26 of the ICCPR (equal protection of the
law), and article 12 of the International Covenant on Economic, Social and
Cultural Rights (right to the highest attainable standard of health).
1.3
Similar bills
have been the subject of
a number of recent Parliamentary inquiries, including inquiries by House of
Representatives Standing Committee on Social Policy and Legal Affairs (which
did not make recommendations on the substance of the bills it considered)[1]
and the Senate Legal and Constitutional Affairs Legislation Committee (which
did make such recommendations).[2]
The Senate Committee report comprised a majority report and a dissenting
minority report. The provisions of the bill are consistent with the
recommendations of the majority report.
1.4
Many of the
human rights issues involved have been explored in depth by these and earlier
reports; the discussion below seeks to highlight the major issues.
Same-sex
marriage and international human rights law
1.5
International
human rights jurisprudence and practice has not, to date, unequivocally found
that the right of men and women of marriageable age to marry and found a
family, the right to privacy and family life or the right to equality, obliges
states to provide for the possibility of marriage between persons of the same
sex. At the same time, human rights law does not present any barriers to
providing for same-sex marriage, and commentators have argued that the case law
and practice on this issue is evolving towards recognition of an obligation to
permit such marriage. Providing for same-sex marriage may be seen as consistent
with the promotion of the right to equality as well as other human rights.
1.6
Human rights
jurisprudence has continued to expand its protection of same-sex couples
against discrimination, so that it is now broadly accepted under the ICCPR and
similar instruments that same-sex couples are generally entitled to be treated
equally to unmarried opposite-sex couples.[3]
This means that in many respects same-sex couples will also be entitled to
identical treatment with married opposite-sex couples. A significant number of
jurisdictions comparable to Australia have provided for marriage between
persons of the same sex.
Right
of men and women of marriageable age to marry
1.7
The
statement of compatibility states that the bill ‘enhances the right of men and women of marriageable
age to marry by extending the right of marriage to all people regardless of
whether they wish to marry a same-sex or a different-sex partner.’ While the
international case law has not yet gone so far as to accept that the guarantee requires
the recognition of same-sex marriage,[4]
some of the authorities are not recent and there appears to be a trend towards
reviewing the case law in the light of the broader guarantees of equality and
non-discrimination contained in the various human rights treaties. The position
is, as the Australian
Human Rights Commission (among others) has noted, that these authorities 'do not prevent the recognition of
same-sex marriage, they merely conclude that the ICCPR does not impose a
positive obligation on states to do so.'[5]
Right
to freedom of religion and belief
1.8
The bill also
has the potential to engage the right to religious freedom guaranteed by
article 18 of the ICCPR, if an authorised marriage celebrant were obliged to
carry out a marriage ceremony for a same-sex couple when to do so may be
inconsistent with the celebrant’s religious beliefs. Currently, section 47(a)
of the Marriage Act 1961 provides that nothing in that Act imposes an
obligation on an authorised celebrant who is a minister of religion, to
solemnise any marriage. The bill (clause 8 of the schedule) provides that, to
avoid doubt, the amendments made by this bill do not limit the effect of
section 47 of the Marriage Act 1961. The bill does not address the
situation of authorised celebrants who are not ministers of religion whose
religious beliefs might be inconsistent with their solemnising a marriage of a
same-sex couple.[6]
Right
to health
1.9
The statement of
compatibility states that the bill enhances the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health:
It is the
clear advice of Australia’s top psychological experts that, for those same-sex
couples who do wish to marry, the continued discrimination against them in
existing marriage laws is a source of great mental anguish and sometimes mental
ill-health. By removing the discrimination from the law, this Bill reduces in
part the overall discrimination and alienation suffered by gay and lesbian
people which may give rise, in some people particularly young people, to an
improvement in physical and mental health.
Equal
protection of the law – recognition of overseas same-sex marriages
1.10
At
present, section 88EA
of the Marriage Act 1961 provides that:
A union
solemnised in a foreign country between:
(a) a man
and another man; or
(b) a woman
and another woman;
must not be
recognised as a marriage in Australia.
1.11
The bill
proposes the repeal of section 88EA,[7]
thus providing for the recognition in Australia of marriages between same-sex
couples which have been validly entered into overseas in a jurisdiction in
which same-sex marriages are lawful. To the extent that the differential
treatment of the recognition in Australia of same-sex and opposite-sex couples
solemnised overseas may be considered discriminatory, the bill would promote
enjoyment of the right to equal protection of the law guaranteed by article 26
of the ICCPR.
1.12
The
committee considers that the bill does not give rise to issues of
incompatibility with human rights.
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