Dissenting Report of an Individual Labor Senator
1.1
This Bill seeks to amendment the Marriage Act 1961 (Marriage Act)
to remove the prohibition on the recognition of same-sex marriages solemnised
under foreign law.
1.2
Accordingly the focus of the Senate Committee's inquiry is restricted to
this issue, rather than the broader issue of marriage equality. However, as
acknowledged in the Majority Report, the bulk of the submissions provided to
the committee contained arguments going to the broader issue of marriage
equality.
1.3
These issues were comprehensively reported in the 2012 Senate Standing
Committee on Legal and Constitutional Affairs inquiry into the Marriage
Equality Amendment Bill 2010.
1.4
The only significant developments since the tabling of that report have
been continued growth in both public support of marriage equality in Australia[1]
and the number of countries that have legalised same-sex marriage.[2]
1.5
Full marriage equality, irrespective of an individual’s sexual
orientation, gender identity or intersex status, is long overdue in Australia. Whilst
any discrimination exists there is no equality, action must be taken in
Australia to bring about true equality for same-sex couples.
1.6
The current definition of marriage contained within the Marriage Act
discriminates against same-sex couples, denying them the fundamental social,
cultural, psychological, health, administrative and legal benefits marriage can
provide.
1.7
All adults, irrespective of their sexual orientation, gender identity or
intersex status, deserve to have their relationships treated with dignity and
respect and that is why marriage equality is critically important. Allowing all
couples access to marriage under Australian law will only strengthen the
institution of marriage, increasing its value and significance in the modern
Australian community.
1.8
Whilst this Bill does not go far enough in addressing this issue, I
believe that any move to bring Australia closer to marriage equality is
positive.
1.9
I therefore reject the recommendation of the Majority Report and support
an amended Bill. I also recommend that all political parties allow their
federal senators and members a genuine conscience vote in relation to the
marriage equality, including recognition of foreign same sex marriages.
1.10
The Bill should be amended to adequately address concerns raised about
the drafting, including the removal of gender specific terms which could
exclude people who are intersex or transsexual.[3]
Recognition of Foreign Same-Sex Marriage in Australia
1.11
The number of foreign jurisdictions allowing same-sex couples to marry
continues to grow. At the time of this inquiry the following countries had
legalised same-sex marriage: The Netherlands; Belgium; Spain; Canada; South
Africa; Norway; Sweden; Portugal; Iceland; Argentina; Denmark; Uruguay; New
Zealand; France; Brazil; England and Wales; Luxembourg; and Scotland.[4]
1.12
Additionally, same-sex couples can marry in a number of sub-national
jurisdictions of the Unities States of America and Mexico.[5]
1.13
A number of other jurisdictions, namely Israel, Japan, Italy, Malta and
the Netherlands Antilles, recognise foreign same sex marriages even though they
do not allow same-sex marriage under their domestic laws.[6]
1.14
Whilst foreign same-sex marriages are not recognised as marriages under
Australian law, they are given some level of recognition, including under
family law.[7]
1.15
The Tasmanian relationship recognition scheme automatically recognise
foreign same-sex marriages as local civil unions, meaning that same-sex couples
married under foreign laws have the same rights as married, civil union or de
facto heterosexual couples under the laws of these states.[8]
1.16
In recent years there have also been policy changes in Australia to
enable Australia citizens to enter into same-sex marriages under foreign laws.
1.17
Since 1 February 2012 the Commonwealth Government has issued
Certificates of No Impediment to Marriage to same-sex couples seeking to marry
in foreign counties where such certificates are required, including Portugal,
Spain, Norway and South Africa.[9]
1.18
As of June this year Australian same-sex couples who qualify to marry
under British Law have been able to marry in British consulates in Australia.[10]
However as the Marriage Act stands, these marriages are not be recognised as
soon as the couples leave the consulate and return to Australian soil.
1.19
The most recent available Census figures, from 2011, show that more than
1,300 same sex couples have married overseas.[11]
Evidence provided to the Committee suggests that this figure would be
significantly higher now, particular following the legalisation of same-sex
marriage in New Zealand and the legalisation of same-sex marriage in Britain
(and the policy change which allows couples to marry in British consulates).[12]
1.20
For example, Australian Marriage Equality provided information to the
Committee stating that New Zealand Registrar of Births, Deaths and Marriages
records show that 234 Australian same-sex couples married in New Zealand
between 19 August 2013 and 23 July 2014.[13]
1.21
It is incongruous that in spite of policy changes that enable same-sex
couples to marry under foreign laws and the recognition of foreign same-sex
marriages as civil unions or de facto partnerships under state and Commonwealth
laws, these unions are still not legally considered marriage under Australia
law.
Practical benefits of recognition of foreign same-sex marriages
1.22
The Federal Labor Government’s 2008 same-sex law reforms made
significant progress in removing discrimination against same-sex couples;
however it is clear that inequality under the law remains.
1.23
Whilst same-sex foreign marriages are largely treated the same as de
facto partnerships under many state, territory and Commonwealth laws there
still remains a number of legal and administrative impediments for these
couples.
1.24
Evidence to the committee provides real life examples of issues faced by
same sex couples married under foreign laws, including the interaction between
the foreign marriage laws and the state and territory relationship recognition
schemes and immigration processes.
1.25
A number of submissions raised concerns about the interaction between
some foreign marriage laws and state and territory relationship recognition
schemes.
1.26
In their submission the Victorian Gay and Lesbian Rights Lobby states:
The ability for dual citizen couples to attain marriage in
another jurisdiction but to not have that marriage recognized in Australia has
created an unnecessary and burdensome legal minefield for many Australian based
couples. The British Government (and some other jurisdictions) require couples
to not be in a marriage or civil partnership (including civil partnership
schemes recognized from another jurisdiction) before entering into a marriage
under British law. Britain’ civil partnership schemes recognises the Australian
states and territories civil partnership schemes that operate in NSW, Victoria,
Queensland, ACT and Tasmania.[14]
1.27
This means that same-sex couples who want to marry under foreign laws,
such as those in Britain, but have already had their relationship recognised
under one of the state or territories schemes are faced with the need to
dissolve their partnership.
1.28
As the Victorian Gay and Lesbian Rights Lobby describe it:
In effect Australian same-sex couples are being forced to
choose between the practical protections afforded to the recognition of their
relationship under an Australian scheme (next of kin, immigration, legal
recognition when not living under one-roof etc); or to have their relationship
appropriately recognised as they see it by being legally married under the
British scheme.[15]
1.29
This was echoed by the evidence of Australian Marriage Equality who
argued:
No-one should have to face the choice of having substantive
rights through having an Australian certificate or having the dignity and
respect of a marriage but none of the rights. Those couples are being forced to
make that choice right now. An easy solution to that would be to recognise
overseas same-sex marriages.[16]
1.30
A number of submissions cite immigration as an area where there would be
practical benefits for couples if foreign same-sex marriages were recognised
under Australian law.[17]
1.31
Specific concerns were raised about the current arrangements for partner
visas and the different evidentiary burden placed on a de facto partner (which
a member of same-sex couple marriage under foreign law would currently be
considered) as opposed to a spouse. The New South Wales Gay and Lesbian Rights
Lobby gave the specific example of de facto couples having to prove that they
have been in a relationship for a specific length of time.[18]
1.32
In response to questions on notice from the Committee the Department of
Immigration and Border Protection submitted that:
Same-sex couples who have been legally married overseas may
still apply for a Partner visa, the only difference being that the applicant
will be assessed as a ‘de facto partner’, rather than a ‘spouse’. This has no
impact on the assessment or the outcome of the Partner visa application, which
depends on whether an applicant meets all of the relevant criteria.[19]
1.33
Further to this the Department’s response stated that:
When assessing a spouse or de facto partner relationship for
the purpose of a Partner visa, officers must, by law, consider all the
circumstances of the relationship, including the:
a) financial
aspects of the relationship;
b) nature
of the household;
c) social
aspects of the relationship; and
d) nature of
the couple’s commitment to each other.[20]
1.34
However as a number of submissions noted de facto couples face the
additional requirement of proving that they have been in a de facto
relationship for at least 12 months before the date of application. A requirement
which is not applicable to 'spouses'.
1.35
Subregulation 2.03A(3) of the Migration Regulations 1994 which
sets out the criteria applicable to de facto partners states that 12 month
criterion must be met by applicants for the following visas:
-
a permanent visa
-
a business skills (Provisional) (Class UR) visa
-
a business skills (Provisional) (Class EB) visa
-
a student (Temporary) (Class TU) visa
-
a partner (Provisional) (Class UF) visa
-
a partner (Temporary) (Class UK) visa
-
a general skilled migration visa.
1.36
Another practical issue raised by submitters was the legal ambiguity in
relation to divorce and separation where the members of a couple were married
under foreign law but are Australian residents or have become Australian
citizens.
1.37
In their submission Australian Marriage Equality explained the problem
with the current legal situation:
For same-sex partners married overseas this can present a
serious problem. They are unable to divorce under the laws of the jurisdiction
that married them but are also unable to divorce in Australia because their
marriage is not recognised here. The problem would be solved by recognising
foreign same sex marriages as marriages for the purpose of Australian Law.[21]
1.38
The Human Rights Law Centre raised the same issue, stating that:
In certain circumstances, the lack of recognition of foreign
marriages in Australia can have the cruel effect of denying people access to
divorce and separation if they are, or have become, Australian citizens. Clients
of community legal centres have found themselves in what is, effectively, a
legal void. This can have a profound impact on individuals. The result for some
has been that they continue to have legal obligations to a former spouse who
continues to reside in their former country. This included continuity of claims
to the (now Australian) spouse's estate in that former country.[22]
1.39
These real life issues raised show that there are practical benefits to
recognising same-sex foreign marriage under Australian Law. This Bill would
address the legal ambiguities and complexities which have been outlined in
evidence to the Committee.
Response to opposition to the Bill
1.40
Evidence to the Committee arguing against this Bill largely focused on
the broader issue of marriage equality, rather than the specifics of this Bill.
1.41
As stated above these issues were comprehensively reported in the 2012
Senate Standing Committee on Legal and Constitutional Affairs inquiry into the
Marriage Equality Amendment Bill 2010.
1.42
In reference to the Bill under consideration by the Committee submitters
made specific arguments about differential treatment and rights, including
freedom of religion.
1.43
Several submitters raised concerns, including disingenuously by those
advocating against marriage equality but also by some supporters of marriage
equality, about creating a new form of inequality by restricting same-sex
marriage to those with the resources and capacity to travel overseas.
1.44
In their submission Australian Baptist Ministries argue that:
The bill, if it became law, would inevitably lead to the
creation of a sub-class of couples who lack the financial resources or
nationality to be able to take advantage of marriage equality elsewhere. This
should be avoided.[23]
1.45
In respect of this argument I concur with the view expressed by the
Human Rights Law Centre in their evidence to the Committee. In response to
questions on this issue Ms Anna Brown, Director of Advocacy and Strategic
Direction, Human Rights Law Centre, stated:
Obviously discrimination already exists. This Bill remedies
some of that discrimination. There is a difference in treatment, but there are
differences in treatment at the moment.[24]
Ms Brown went on:
But it also resolves a whole lot of legal and practical
problems for these couples who are already in validly formed overseas same-sex
marriages. So we think the benefits of this bill far outweigh arguments put to
that effect.[25]
1.46
As set out in the Majority Report, a number of submitters also raised
concerns about the impact of the Bill on the religious freedoms of
organisations and individuals.[26]
1.47
To support this argument submitters noted a number of overseas cases of
businesses refusing services to same-sex couples being prosecution under anti-discrimination
law.[27]
1.48
This argument should be rejected on two grounds. Firstly, the case law
presented did not link to the recognition of same-sex marriage. In fact as
noted by Australian Marriage Equality, 4 of the 6 cases cited by the Australian
Christian Lobby are from jurisdictions that do not have same-sex marriage. Accordingly
it is misleading to assert that these cases have any link to marriage equality
laws.
1.49
Secondly and most significantly, the Bill being considered by the
Committee in no way changes existing protection of religious freedom under
anti-discrimination law or within the Marriage Act. It should be reiterated
that this Bill does not seek to amend section 47 of the Marriage Act, which
clearly states that Ministers of religion are not obliged to solemnize any
marriage. Furthermore the Bill related to marriages solemnize overseas and
would therefore not impact on Ministers of religion solemnizing marriages in
Australia.
1.50
Additionally, the Bill does not seek to amend existing legislation on discrimination
on the grounds of sexuality, transgender identity or intersex status nor does
it seek to amend various exemptions for religious institutions that exist under
anti-discrimination legislation.
1.51
As canvassed in the Majority Report, submissions in support of and
opposition to the Bill both raised the issue of Australia’s international human
rights obligations.
1.52
Submitters who supported the Bill argued that the current section 88E
may contravene Article 9 of the Hague Convention on the Recognition and
Celebration of Marriages which includes the obligation to recognise
marriages lawfully entered into in another country.[28]
1.53
In their evidence to the committee the Human Rights Law Centre stated:
As a matter of international comity, Australia should
recognise validly formed marriages from overseas, regardless of the sex or
gender of the couple. We are a signatory to the Hague convention on the
celebration and recognition of foreign marriages and it is our obligation under
that convention to recognise those marriages.[29]
1.54
These submitters also highlighted Australia's obligations to uphold the
fundamental rights of non-discrimination and equality and specific obligations
under the International Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights and Universal
Declaration of Human Rights.[30]
1.55
Submitters opposed to the Bill argued that restricting marriage to a man
and a woman was not discriminatory under human rights law[31]
and that enacting the Bill would breach Australia’s obligations under the Convention
on the Rights of the Child.[32]
1.56
Given the number of submissions that raised the rights of the child in
relation to the Bill, it is important to clarify that the Bill under
consideration does not impact on a couples legal right to foster or adopt
children or access Artificial Reproductive Technology (all of which are largely
governed by state and territory legislation).
1.57
Furthermore, it should be noted that Australian family law already
recognises overseas same-sex marriages for the purposes of property settlement
and parenting issues and recognises same-sex couples as parents.[33]
Issues for Further Consideration
1.58
Submitters highlighted a number of drafting and substantive issues with
the Bill in its current form. Consideration should be given to amending the
Bill to ensure that each of these issues are adequately addressed.
1.59
Changes should be made, as necessary, to ensure the amendments would
recognise marriages solemnised under foreign law at consulates and high commissions
in Australia and marriages solemnised under the laws of sub-national
jurisdictions (where they rather than national laws regulate marriage, for
example in the United States of America).
1.60
The Human Rights Law Centre suggest that both the consulate issue and
the state based marriage laws in other countries could be addressed by drafting
changes such as 'solemnised under foreign law' or 'solemnised outside of
Australia'.[34]
1.61
A number of submissions also highlighted that section 88B(4) of the
Marriage Act provides that the meaning of marriage in section 88E is given by
section 5(1), which defines a marriage as a union between a man and a woman.[35]
1.62
The evidence to the Committee suggested that the Bill would fail to
achieve its aim unless both sections 88B(4) and 88EA were repealed.[36]
1.63
A number of submitters highlighted the inadequacy of the Bill in its
current form in recognising the foreign marriages of intersex or otherwise
gender or sex diverse individuals.[37]
The Bill should be amended to address this issue.
1.64
As set out at page 17 of the Majority Report, this issue was highlighted
to the Committee by the evidence of Tony Briffa, Vice-President of both
Organisation Intersex Australia Limited and Androgen Insensitivity Syndrome
Support Group Australia Inc.
1.65
I support the comments in the Majority Report at paragraphs 2.66–267:
The committee is concerned by the issues raised in relation
to the recognition of marriages for intersex people, as well as their
recognition in Australian birth certificates and passports.
Whilst the recognition of intersex people in Australian birth
certificates and passports is not germane to the terms of the Bill subject to
this inquiry, the committee urges the Commonwealth government to give further
consideration to the evidence of Tony Briffa regarding intersex rights and
intersex marriage and to how these issues can be addressed.
1.66
Submitters also suggested that consideration could be given to making
amendments to avoid any uncertainty about the status of existing same-sex
foreign marriages.
Concluding Comments
1.67
It has been 10 years since the Marriage Act was amended to define
marriage as being between a man and a woman and to establish that foreign
marriages between members of the same-sex would not be recognised as marriages
for the purposes of Australian law.
1.68
In this time an increasing number of countries have legalised same-sex
marriage and more Australians have entered into foreign same-sex marriages.
1.69
This Bill will not only remove the legal impediments that this Committee
have heard evidence of but also to provide the respect and dignity of
recognition to those couples who have entered into legally valid marriages
under foreign laws.
1.70
Full marriage equality is long overdue in Australia and whilst this will
not be achieved by this Bill it is a positive step.
1.71
I strongly support the Bill and call on the major political parties to
allow a genuine conscience vote on the matter.
Recommendation 1
1.72
That an amended Bill be passed, which based on my conscience I will be supporting.
Recommendation 2
1.73
That all political parties allow their senators and House of
Representatives members a conscience vote in relation to marriage equality,
including the recognition of foreign same-sex marriages.
Senator
Carol Brown
Senator for Tasmania
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