Chapter 2
Background
2.1
According to the Australian Bureau of Statistics (ABS), in 1996, 0.2% of
all adults said they were living with a same‑sex partner. By 2006, this
had increased to 0.4% (approximately 50,000 people). However, the ABS noted
that:
These figures may be an undercount of the true number of
people living in same‑sex relationships. Some people may be reluctant to
identify as being in a same‑sex relationship, while others may not have
identified because they didn't know that same-sex relationships would be
counted in the census.[1]
2.2
Understanding the legislative, social and international context of the
Marriage Equality Amendment Bill 2009 (Bill) helps to identify and appreciate
the key issues and concerns raised by submitters during the committee's
inquiry.
The Marriage Equality Amendment Bill 2009 – A Summary
2.3
The Bill would amend the Marriage Act to, 'remove all
discrimination from the Marriage Act on the basis of sexuality and gender
identity [and] to permit marriage regardless of sex, sexuality and gender
identity.'[2]
2.4
The Bill seeks to achieve this by amending the definition of 'marriage',
contained in subsection 5(1) of the Act, so as to read 'the union of two
people, regardless of sex, sexuality or gender identity, voluntarily entered
into.' The Bill also makes consequential amendments to remove references to 'a
man and a woman'. Further, where the marriage celebrant is not a minister of
religion, the amendments would allow the marriage to be solemnised according to
any form and ceremony, and in the words of the parties' own choosing that they
be lawfully wed.
2.5
While the legislative mechanics of the Bill are relatively simple, the
potential implications of enacting such an amendment have raised significant
community discourse and debate. This report seeks to navigate the concerns
raised by submitters to this inquiry by first establishing the context of these
discussions and then discussing the arguments put in favour and against the passage
of the Bill. Finally, this report draws certain conclusions about the debate
and makes recommendations for how best to deal with this legislation.
The Legislative Context
2.6
While subsections 51(xxi) and 51(xxii) of the Constitution give the
Commonwealth Parliament 'the power to make laws for the peace, order and good
government of the Commonwealth with respect to Marriage, Divorce and
matrimonial causes, and in relation to parenting rights and the custody and
guardianship of infants',[3]
marriage law in Australia was state-based until the 1961 passage of the Act.
2.7
On its passage through Parliament, the Act did not include a definition
of 'marriage'. 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.[4]
2.8
However, the Act (at section 46) included a provision that a celebrant,
in explaining the nature of a marriage relationship, must say the words:
...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...[5]
2.9
While the section 46 description was not a definition, the Marriage
Amendment Act 2004, among other things, amended the Act to insert these
words as the formal definition of 'marriage'. The Marriage Amendment Act
2004 also inserted section 88EA which provides that same-sex marriages
solemnised in a foreign country would expressly not be recognised as a marriage
in Australia, a matter that hitherto had been uncertain.
2.10
The Senate Legal and Constitutional Affairs Committeeconducted an
inquiry into the Marriage Amendment Bill 2004. The committee was instructed by
the Senate to specifically consider:
-
the legal interpretation of the marriage power in the
Constitution, and the extent of this power with regard to the creation of
marriage law and the recognition of foreign marriages;
-
whether the Bill raises international comity issues, or
inconsistency with laws, policies and standards of domestic and overseas
jurisdictions;
-
whether the Bill breaches international instruments including the
Hague Convention and human rights mechanisms prohibiting discrimination on the
grounds of sexual orientation;
-
whether the Treaties relied upon in Schedule [2] of the Bill
provide the Commonwealth with the necessary power to act, and how this action
interferes with state and territory responsibilities to legislate for and to
run adoption processes;
-
the consequences of the Bill becoming law, and those remaining
avenues available to the Commonwealth for legally recognising inter-personal
relationships including same-sex relationships; and
-
the government's insistence that this Bill be introduced as a
matter of urgency when there has been no demonstrated reason for its urgent
introduction and no community consultation on the provisions of the Bill.[6]
2.11
However, on 31 August 2004, before the committee was due to report, the
Governor-General prorogued the 40th Parliament and the committee
decided not to proceed with the inquiry. During the course of that inquiry, the
committee received over 16,000 submissions from interested stakeholders.
2.12
It should be noted that in Australia at the time of this report, three States/Territories
have systems which allow same-sex couples to register their relationships. Tasmania,
Victoria and the Australian Capital Territory currently allow civil unions. While
these unions are recognised for the purposes of some Commonwealth Acts, these
civil union schemes are only open to residents of the particular state or
territory that provides them. The City of Melbourne, Yarra City Council and the
City of Sydney provide a registration system allowing same-sex couples to formally
declare a relationship.
Further Constitutional
considerations
2.13
The committee notes that concerns about the constitutional validity of
the Bill were raised during the inquiry. The Gilbert and Tobin Centre of Public
Law reminded the committee that, while section 51(xxi) of the Australian
Constitution gives the Commonwealth Parliament power to makes laws with respect
to 'marriage', that power is not further defined by the Constitution, and the
power may or may not extend beyond its current terms as a 'union between a man
and a woman to the exclusion of all others voluntarily entered into for life'.[7]
2.14
The Gilbert and Tobin Centre suggests that the High Court could adopt at
least 2 different approaches to defining marriage for the purposes of the
Constitution. If the Court were to look to the intentions of the framers of the
Constitution, it may be persuaded that the Commonwealth's power is limited to
marriages of two different sexes. However, drawing on comments by Justice
McHugh in the Singh[8]
and Wakim[9]
cases, the Gilbert and Tobin Centre observe that:
...it might be argued that gender is not central to the
constitutional definition of ‘marriage’, which is instead focussed upon the
commitment of two people to a voluntary and permanent union. This would be an
example of an evolving interpretation in which the Constitution retains its
essential meaning while accommodating later understandings as to what may fall
within those concepts. The fact that a same-sex union was not within the
intended meaning of ‘marriage’ 1901 need not preclude such an interpretation
today.[10]
2.15
The Gilbert and Tobin Centre concludes that:
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 represents the full extent of the Commonwealth's power.[11]
2.16
The Centre goes on to a similar conclusion in respect of the external
affairs power (section 51 xxix), but also find that the Commonwealth could
safely enact laws for same-sex marriage were the states to refer their powers
to the Commonwealth to do so, concluding that:
The Commonwealth can 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, this would be the
simplest and most certain constitutional method of achieving this.[12]
The International Context
2.17
In developed jurisdictions around the world, the issue of same-sex
marriage has only relatively recently become a matter for broader public
discussion, accompanied by support for the removal of legislative
discrimination on the basis of sex, sexuality or gender identity.
Legislative approaches around the
world
2.18
In 2001, two years after Denmark became the first country to recognise
same-sex civil unions, the Netherlands became the first country to pass
legislation allowing same-sex couples to be married. Since that time, six other
countries have passed similar laws that apply nationally. These are Belgium
(2003), Spain (2005), Canada (2005), South Africa (2006), Norway (2007) and
Sweden (2009). In a further 40 countries, there is either national or
state/provincial legislation allowing for the legal recognition of same-sex
relationships.
2.19
The Civil Union Bill in New Zealand was given Royal Assent on 13 December
2004[13],
allowing same-sex couples the same rights as married couples in child custody,
taxation and welfare matters.
2.20
In 1996, both the United States Congress[14]
and Senate[15]
passed the 'Defence of Marriage Act'[16]
which provided that no State was required to recognise, as a marriage, a
relationship between persons of the same-sex, even if that relationship is
recognised as a marriage in other States. The Defence of Marriage Act was signed
into law by President Bill Clinton on 21 September 1996. Since the passage of
the Defence of Marriage Act, five US States have passed legislation legalising
same-sex marriages. These include Massachusetts, Connecticut, Iowa, and
Vermont, each of which has legislation in effect, while New Hampshire's
legislation will commence on 1 January 2010.
International agreements and
obligations
2.21
One important feature of the discussion of same-sex marriage relates to
Australia's obligations under international Human Rights treaties and
agreements. Whether (or not) Australia is in compliance with these obligations
was a matter raised by a number of witnesses. (Evidence received from
submitters in relation to this matter, and a discussion of the committee's
conclusions, are contained in chapters 3, 4 and 5 of this report.)
2.22
Article 16 of the United Nations Universal Declaration of Human Rights
states that:
(1) Men and women of full age, without any limitation due to
race, nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and at its
dissolution.
(2) Marriage shall be entered into only with the free and
full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of
society and is entitled to protection by society and the State.[17]
2.23
Australia is also a signatory to the International Covenant on Economic,
Social and Cultural Rights, which accords rights to the family, with reference to
marriage being entered into with the free consent of the intending spouses.[18]
Article 23 of the International Covenant on Civil and Political Rights, to
which Australia is also a signatory, also outlines that party countries
'recognise the right of men and women of marriageable age to marry and
found a family' (emphasis added).[19]
This treaty also outlines that party countries should take appropriate steps to
ensure the equality of rights of spouses as to marriage, during marriage and at
its dissolution.[20]
2.24
In a 2002 case, dealt with by the United Nations Human Rights Committee
(UNHRC), members of the UNHRC found that the relevant party country (New
Zealand) had not violated the human right to marry contained in Article 23 by
refusing to allow same-sex marriage.[21]
The UNHRC noted that:
In light of the scope of the right to marry under article 23,
paragraph 2, of the Covenant, the Committee cannot find that by mere refusal to
provide for marriage between homosexual couples, the State party has violated
the rights of the authors under articles 16, 17, 23, paragraphs 1 and 2, or 26
of the Covenant.
The Human Rights Committee, acting under article 5, paragraph
4, of the Optional Protocol, is of the view that the facts before it do not
disclose a violation of any provision of the International Covenant on Civil
and Political Rights.[22]
2.25
Since this ruling, the discussion of same-sex marriage has turned on the
interpretation of the phrase 'men and women' in Article 23. In the
abovementioned case, the UNHRC understood the phrase to be one term, citing the
use of other terms such as 'every human being', 'everyone' or 'all persons'
elsewhere in the Covenant. The UNHRC therefore understood the explicit and
specific reference to 'men and woman' to mean a union between a man and a
woman. Others argue that, as public discussion of same-sex marriage
intensifies, the UNHRC is increasingly likely to reinterpret the phrase to mean
'men as a group and woman as a group', noting that the reference is clearly
less strict than 'the union of a man and a woman to the exclusion of all
others'.[23]
Recognition of marriage from other
jurisdictions (including polygamy)
2.26
One important aspect of marriage legislation in every jurisdiction is
the mechanism for recognising (or otherwise) marriages that were celebrated or
given legal standing in other jurisdictions. For example, a feature of the
Defence of Marriage Act in the United States is that federal laws do not
prevent State's from enacting legislation that legalises same-sex marriage,
however the federal law also doesn't require other states to recognise that
marriage as legitimate. Similar principles apply across country borders.
2.27
As noted above, the Marriage Legislation Amendment Act 2004 in
Australia provided that same-sex unions solemnised in a foreign country would
not be recognised as a marriage in Australia. However, while Australian
law doesn't generally recognise foreign polygamous relationships as marriage,
the Family Law Act 1975 deems foreign polygamous marriages to be
marriage for children's matters or property alterations (for example).[24]
The Social Context
2.28
Discussions of same-sex marriage invariably involve lengthy debate
about what role marriage itself plays in society and the implications that
legalising same-sex marriage might have on families and society in general.
Nonetheless, people generally agree that the state should not unduly intervene
in private relationships without strong policy justification. During the
inquiry, the committee heard evidence on what impact passage of the Bill might
have on children of same-sex parents within a marriage relationship and what
rights the Commonwealth currently extends to unmarried heterosexual and
same-sex couples.
Impact of Marriage on Children
2.29
The Australian Institute of Family Studies (AIFS), an Australian
Government Statutory body established to conduct research into the effects of
Government programs on family wellbeing, has published a number of research
papers which touch on issues relating to same-sex parent families. One
important feature of the AIFS research relates to the significant diversity in
the make up of families with same-sex parents. In a research paper published in
2003, the AIFS found that more same-sex parent families:
...are choosing parenthood within the context of their same-sex
relationship through a variety of means including donor insemination and other
assisted reproduction procedures, adoption or fostering. Thus, the extent to
which family members are related biologically can differ (that is, one parent
may or may not be the child’s biological parent). The large proportion of
children in current gay and lesbian families are likely to have been born or
adopted in the context of a heterosexual couple relationship that later
dissolved.[25]
2.30
The AIFS, in that paper, also discussed concerns by some in the community
about the potential negative effects of being raised in a gay- or
lesbian-headed family, particularly in relation to children's gender identity,
their personal and social development and the harm resulting from family
disruption (on the assumption that gay and lesbian relationships are more
short-lived than heterosexual relationships).
2.31
The AIFS found that most literature suggests that children raised by
same-sex parents do not show poor adjustment when compared with other children.
However:
...much of the available research has involved small,
unrepresentative samples that are predominantly well educated, middle class and
American. The degree to which results reflect sampling biases of the research,
and their applicability in the Australian context, are thus difficult to
evaluate.[26]
2.32
The committee recognises that there may be insufficient data collected
within the Australian context to draw definitive conclusions about any impact
that same-sex parenting may or may not have on children. This lack of data may
also make it difficult to determine what factors might contribute to any
outcome differences observed in children in same-sex parent families and
whether those factors are a direct result of the particular family structure.
Legal rights for unmarried couples
2.33
On 30 April 2008, the Hon. Robert McClelland MP, Attorney-General
announced that legislation to remove same-sex discrimination from a wide range
of Commonwealth laws would be introduced to give effect to the recommendation
of the then Human Rights and Equal Opportunity Commission (HREOC) 'Same-Sex:
Same Entitlements' report.[27]
2.34
In 2008, the committee conducted separate inquiries into the Family Law
Amendment (De Facto Financial Matters and Other Measures) Bill 2008, the Same-Sex
Relationships (Equal Treatment in Commonwealth Law – General Law Reform) Bill
2008 and the Same-Sex Relationships (Equal Treatment in Commonwealth Legislation
– Superannuation) Bill 2008.[28]
These bills amended more than 90 Commonwealth Acts to provide greater
recognition and equal treatment of opposite- and same-sex de facto couples.
2.35
The committee recommended that the bills be passed, subject to certain
recommendations. Many of the committee's concerns were addressed and the bills
passed and received Royal Assent in November and December 2008.[29]
2.36
During this inquiry, the committee heard evidence relating to this
recognition of same-sex de facto relationships in Commonwealth laws. There was
broad agreement that these measures were appropriate, however there was some
discussion as to whether the changes went far enough to genuinely remove
discrimination against same-sex couples.
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