Recognition of same-sex unions in Australia

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Legal recognition of
same-sex relationships
Marriage
Recognized
Previously performed but not invalidated
  1. Can be registered also in Aruba, Curaçao and Sint Maarten
  2. When performed in Mexican states that have legalized same-sex marriage

*Not yet in effect

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Same-sex unions are treated as de facto unions under Australian federal law, though each Australian state and territory is entitled to create their own laws with respect to same-sex relationship registers and same-sex partnership schemes. Same-sex couples are prevented from marrying due to a ban on same-sex marriage contained within the federal Marriage Act (1961) amended in 2004 by the Howard Government.[1]

Same-sex unions under federal law[edit]

Following the Australian Human Rights Commission's report Same-Sex: Same Entitlements[2] and an audit of Commonwealth legislation, in 2009 the Australian Government introduced several reforms designed to equalise treatment for same-sex couples and same-sex couple families. The reforms amended 85 Commonwealth laws to eliminate discrimination against same-sex couples and their children in a wide range of areas. The reforms came in the form of two pieces of legislation, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-Superannuation) Act 2008.[3] These laws amended several other existing Commonwealth Acts to equalise treatment for same-sex couples and any children such couples may be raising with respect to the following areas:

  • Taxation
  • Superannuation
  • Health Insurance
  • Social Security
  • Aged care and child support
  • Immigration
  • Citizenship
  • Veterans' Affairs

For instance, with relation to social security and general family law, same-sex couples were not previously recognised as a couple for social security or family assistance purposes. A person who had a same-sex de facto partner was treated as a single person. The reforms ensured that same-sex couples were (for the first time under Australian law) recognised as a couple akin to opposite-sex partners. Consequently, a same-sex couple receives the same rate of social security and family assistance payments as an opposite-sex couple.[3] Such reforms however, do not completely equalise treatment for same-sex couples, who for instance, do not have the same rights and entitlements as married heterosexual couples do with respect to workers' compensation death benefits, pensions for the partners of Defence Force veterans and access to carer's leave.[4] Despite large equality of rights, Australia does not have a national registered partnership, civil union or same-sex relationship scheme.

History of same-sex unions under federal law[edit]

In 2004, amendments to the Superannuation Industry Supervision Act to allow tax free payment of superannuation benefits to be made to the surviving partner on an interdependent relationships, included same sex couples, or a relationship where one person was financially dependent on another person.[5]

Prior to 2008, same-sex couples were only recognised by the federal government in very limited circumstances. For example, since the 1990s, same-sex foreign partners of Australian citizens have been able to receive residency permits in Australia known as "interdependency visas". Following a national inquiry into financial and work-related discrimination against same-sex relationships, on 21 June 2007, the Human Rights and Equal Opportunity Commission (HREOC) released its Same-Sex: Same Entitlements report. The Commission identified 58 Commonwealth law statutes and provisions that explicitly discriminate against same-gender couples by using the term 'member of the opposite sex'.[6][7]

The previous conservative Howard Government banned its departments from making submissions to the HREOC inquiry regarding financial discrimination experienced by same-sex couples.[8]

The report found that 100 statutes and provisions under federal law discriminated against same-sex couples by using the term 'member of the opposite sex', from Aged Care, Superannuation, Childcare, Medicare (including the PBS) through to Pensions. "All the basics that opposite-gender couples are legally entitled to and take for granted" [9] were things same-sex couples were effectively barred from utilising under the former system.

Same-sex marriage attempts in federal parliament[edit]

There have been several attempts to legalise same-sex marriage nationwide via approval from both houses of the Federal Parliament.

The current Prime Minister, Tony Abbott has traditionally opposed same-sex marriage.[10]

Year Month Details
2009 August A same-sex marriage bill is introduced by the Australian Greens in the Senate.[11] The bill is reviewed by the Senate Legal and Constitutional Affairs Committee.[12] The largest protests for same-sex marriage in the nation's history take place in eight cities on 1 August, with an estimated 8,000 people attending.[13] The Committee elects not to vote on the bill.
2010 February On 25 February 2010, the Marriage Equality Bill 2009 is rejected by Senate on a vote of 45-5, with only the Greens voting in favour and many senators not in attendance.[14] The Greens announce their intention to reintroduce a bill to legalise same-sex marriage after the 2010 federal election.[15]
2010 August Prime Minister Julia Gillard announces her government's opposition to same-sex marriage legalisation in the 2010 federal election campaign.[16]
2011 December The governing Australian Labor Party overwhelmingly endorses a change to its party platform to be in support of legalising same-sex marriage. A motion to allow MP's and Senators a conscience vote on same-sex marriage legislation is passed; 208 votes to 184.[17][18]
2012 February Two bills to allow same-sex marriage in Australia introduced in the Parliament. The Inquiry into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012 receive 276,437 responses, the largest response ever received by a Committee of the House of Representatives or Senate. 177,663 respondents were in favour of changing the law to recognise same-sex marriage, 98,164 were opposed to and 610 were unsure.[19]
2012 September On 19 September 2012, the House of Representatives votes against passing its same-sex marriage bill by a margin of 98-42 votes.[20] On 21 September 2012, the Senate also votes down its same-sex marriage legislation, by a vote of 41-26.[21] In both instances, the Liberal/National Coalition honours its 2010 election promise to vote as a bloc against any same-sex marriage legislation.
2013 March Former Labor Prime Minister Kevin Rudd announces his personal support of same-sex marriage in March.[22] Upon returning to the Prime Ministership in June, Rudd promises same-sex marriage legislation in the Parliament if Labor wins the upcoming federal election.[23]
2013 June A proposal by Prime Minister Rudd to hold a referendum on same-sex marriage is rejected by same-sex marriage advocates.[24]
2013 September The Tony Abbott-led Liberal/National Coalition comfortably wins government at the federal election. Though most Coalition MP's and Senators (and Abbott himself) are opposed to same-sex marriage, Abbott states the party may consider altering its position to be in favour of a conscience vote.[25][26]
2013 December Deputy Labor Opposition Leader Tanya Plibersek announces she will introduce a private member's bill in the parliament, seeking the assistance and co-sponsorship of Coalition Government Minister Malcolm Turnbull and a conscience vote among all parliamentarians.[27]
2014 July A bill to legalise same-sex marriage, the Marriage Deregulation Amendment Bill 2014, is announced by Liberal Democratic Party Senator David Leyonhjelm, though its introduction in the Parliament is again contingent on the promise of a Coalition conscience vote, something which is yet to be guaranteed.[28]

Same-sex unions under states' and territories' law[edit]

Same-sex marriage[edit]

Status of same-sex unions in Australia.
  Civil or Domestic Partnership
  Defined statewide as "de facto"

States' and territories' have long had the ability to create laws with respect to relationships and the like. Since the Commonwealth introduced the Marriage Act Cth. 1961, marriage laws in Australia have been regarded as an exclusive Commonwealth power. The precise rights of states and territories with respect to creating state-based same-sex marriage laws have been complicated since the Howard Government amendment to the Marriage Act in 2004 to define marriage as the "exclusive union of one man and one woman, to the exclusion of all others."[29] In their December 2013 ruling striking down the ACT's same-sex marriage law, the High Court effectively determined that all laws with respect to marriage were an exclusive power of the Commonwealth and that no state or territory law legalising same-sex marriage or creating any type of marriage could operate concurrently with the federal Marriage Act; "the kind of marriage provided for by the [Marriage] Act is the only kind of marriage that may be formed or recognised in Australia".[30] As a result, the only possible method for same-sex marriage legalisation to occur in Australia is via legislation passed into law by the Federal Parliament only.

Prior to that ruling, reports released by the New South Wales Parliamentary Committee on Social Issues and the Tasmanian Law Reform Institute have found that ...[a state parliament] has the power to legislate on the topic of marriage, including same-sex marriage. However, if New South Wales chooses to exercise that power and enact a law for same-sex marriage, the law could be subject to challenge in the High Court of Australia[31] and that ...[no current arguments] present an absolute impediment to achieving state-based or Commonwealth marriage equality.[32] With respect to territories', the ACT Government sought legal advice which suggested that its bill seeking to legalise same-sex marriage could run concurrently with the federal Government's statutory ban on same-sex marriage.[33] Alternate legal advice suggests state and territory-based same-sex marriage laws are invalid. The current Abbott Government's acting Solicitor-General has advised federal Attorney-General George Brandis that the ACT's same-sex marriage law is inconsistent with the federal Government's laws[34] whilst other sources have rated the ACT's law as 'doubtful' or impossible to pass judicial scrutiny.[35][36] On 12 December 2013, the High Court of Australia struck down the ACT's marriage law.

Aside from the Australian Capital Territory, Tasmania is the only sub-national jurisdiction to have passed same-sex marriage legislation in a chamber of its legislature. The state lower house passed same-sex marriage legislation by 13-11 votes in September 2012, though the state upper house subsequently voted against this legislation a few weeks later by a vote of 8-6.[37][38]

Existing state and territory same-sex union schemes[edit]

Civil unions[edit]

Currently, only the Australian Capital Territory provides same-sex couples with the right to access a civil union. Under the federal laws, these unions are treated as de facto unions. In August 2012, the ACT's Civil Union Bill passed after legal advice demonstrated that the Federal government had removed its ability to legislate for territorial and state same-sex marriage after it defined marriage as only between man and woman in the Marriage Amendment Act 2004. The Civil Union Act 2012 grants many of the same rights to same-sex couples as people married under the Marriage Act.[39] The Act was not challenged by the Gillard federal Government. The Act was to be repealed and civil unions were to be no longer accessible to same-sex couples upon commencement of the Marriage Equality (Same Sex) Act 2013, which (if not struck down by the High Court) would have permanently legalised same-sex marriage in the Territory.[40] Due to the High Court's ruling striking down the ACT's same-sex marriage law as invalid, the repeal of the Civil Unions Act 2012 is of no effect and civil unions can again take place in the ACT.[41]

State registries and domestic partnerships[edit]

Same-sex couples have access to domestic partnership registries in New South Wales, Tasmania, Victoria and Queensland. Same-sex couples do not share that right in South Australia, though such couples are referred to in state legislation as 'domestic partners' and may make a written agreement called a Domestic Partnership Agreement about their living arrangements, so as to be recognised by the state as domestic partners.

In New South Wales, on 4 June 2008, the New South Wales Parliament passed the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008[42] which recognises co-mothers as legal parents of children born through donor insemination, provides birth certificates allowing two mothers to be recognised, creates amendments to 57 pieces of state legislation to ensure de facto couples, including same-sex couples, are treated equally with married couples, and creates amendments to the New South Wales Anti-Discrimination Act to ensure same-sex couples are protected from discrimination on the basis of their "marital or domestic status" in employment, accommodation and access to other goods and services.[43] The Relationships Register Bill 2010 was introduced to the NSW Legislative Assembly on 23 April 2010, to provide conclusive proof of the existence of the relationship, thereby gaining all of the rights afforded to de facto couples under state and federal law. The bill was approved by the NSW Legislative Assembly on a 62–9 vote on 11 May 2010, and then by the NSW Legislative Council (upper house) on a 32–5 vote on 12 May. It was signed into law by the governor and entered into force on 1 July 2010.[44][45]

In November 2013 a bill was introduced into the NSW Upper House to legalise same-sex marriage. The bill was defeated.[46][47]

In Victoria, in August 2001, the Statute Law Amendment (Relationships) Act 2001 and the Statute Law Further Amendment (Relationships) Act 2001 amended 60 Acts in Victoria to give same-sex couples, called domestic partners, some rights equal to those enjoyed by de facto couples, including hospital access, medical decision making, superannuation, inheritance rights, property tax, landlord/tenancy rights, mental health treatment, and victims of crime procedures.[48][49][50] Local city registries have since been superseded by the state's Domestic Partnership Register which was enacted in December 2008.[51] Both city registers remain active.

In Queensland, in December 2002, the states' Discrimination Law Amendment Act 2002 created a new, non-discriminatory definition of "de facto partner", affecting 42 pieces of legislation.[52] This gave same-sex couples the same rights as de facto couples in most instances.

Brisbane protest rally, 2009

On 25 October 2011, Queensland Deputy Premier, Andrew Fraser, introduced the Civil Partnerships bill 2011 into the Queensland Legislative Assembly. The bill passed the Legislative Assembly on 30 November by a vote of 47 to 40, with those against including 4 from the Australian Labor Party.[53] The Civil Partnerships Act 2011 allows for same-sex couples who are Queensland residents to enter into a civil partnership. Shortly after the change of government in the 2012 state elections, the LNP passed the "Civil Partnerships and Other Legislation Amendment Bill 2012".[54] The new bill changed the name from "civil union" to "registered relationship" and prohibited the state from offering ceremonies for those who do register their relationship in this manner.

In South Australia, since 1 June 2007, 97 sections of legislation took effect which provide superannuation entitlements under four superannuation Acts, as well as rights concerning property ownership, inheritance, financial affairs, hospital access and other entitlements under South Australian law. The legislation does not include three areas of South Australian laws such as adoption and access to IVF and altrustic surrogacy.

This Family Relationships Act 1975 states that "Any two people who live together and present themselves as a couple will be covered by the legislation, regardless of whether or not their relationship is sexual". These Acts included 'domestic partner' in 97 separate Acts called the Statutes Amendment (Domestic Partners) Act 2006 (No 43)[55] and the Statutes Amendment (Equal Superannuation Entitlements for Same Sex Couples) Act 2003 (No 13)[56][57][58][59][60][61]

The Statutes Amendment (Domestic Partners) Act 2006 (Number 43), which took effect 1 June 2007, amended 97 Acts, dispensing with the term "de facto" and categorising couples as "domestic partners". This meant same-sex couples and any two people who live together are now covered by the same laws. Same-sex couples may make a written agreement called a Domestic Partnership Agreement about their living arrangements. This may be prepared at any time and is legal from the time it is made, but must meet other requirements, such as joint commitments, before being recognised as domestic partners.[62][63][64][65][66][67][68]

In 2009 the Commonwealth Powers (De Facto Relationships) Act 2009 to allow the referrals of a de facto partners property and superannuation to the Commonwealth as family law under the Family Law Act 1975 (just as all other states had done previously) was assented to on 10.12.2009 - effective from 1.7.2010.[69]

In February 2012 a bill was tabled in the South Australian Legislative Council to legalise same-sex marriage.[70] In July 2013 a same-sex marriage bill was introduced into the South Australian House of Assembly. The bill was defeated.[71][72]

In Tasmania, beginning 1 January 2004, the states' Relationships Act 2003 allowed same-sex couples to register their union as a type of domestic partnership in two distinct categories, Significant Relationships and Caring Relationships, with the state's Registry of Births, Death and Marriages. The new definition of partner or spouse, "two people in a relationship whether or not it's sexual", was embedded into 80 pieces of legislation, giving same-sex couples rights in making decisions about a partner's health, provides for guardianship when a partner is incapacitated, and gives same-sex couples equal access to a partner's public sector pensions. It also allows one member of a same-sex couple to adopt the biological child of their partner.[73][74] In September 2010, the Tasmanian parliament unanimously passed the legislation to recognise same-sex marriages performed in other jurisdictions as registered partnerships under the Relationships Act 2003, making it the first Australian state or territory to do so.[75]

In August 2012, a bill was introduced into the Tasmanian Parliament to legalise same-sex marriage. The bill was defeated.[76][77] In October 2013 a bill was re-introduced into the Tasmanian Upper House to legalise same-sex marriage. The bill was defeated.[78]

States and territories with no official partnerships scheme[edit]

Same-sex de facto couples in all states and territories have much the same rights as opposite-sex de facto couples. However, the inability of same-sex couples to have conclusive evidence of their relationships in Western Australia, the Northern Territory and Norfolk Island can make it difficult for them to access rights accorded to them under the law. The following list discusses states and territories without registered partnerships for same-sex couples: However, section 118 of The Australian Constitution (The Full Faith and Credit Section) would, in fact, mean that persons registered under the laws of States and Territories with Civil Partnership or Civil Union laws would be able to enforce their rights in juristications without specific enactments.

In Norfolk Island in 2005 the local government created the De Facto Relationships Act 2005, providing for domestic partnerships beginning in 2006.[79] The legislation defines the criteria for a court to determine the eligibility of couples to be recognised as de facto couples, and requires an application to the Supreme Court. Circumstances of the relationship, which includes duration of the relationship, financial aspects, and shared responsibilities, are taken into account.

In the Northern Territory, in March 2004, the territory Government enacted the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 to remove legislative discrimination against same sex couples in most areas of territory law and recognise same-sex unions as de facto unions. The Act removed distinctions based on a person's gender, sexuality or de facto relationship in approximately 50 Acts and Regulations. As in NSW and the ACT, reform has also included enabling the lesbian partner of a woman to be recognised as the parent of her partner's child across State law.[80]

In Western Australia, the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 removed all remaining legislative discrimination toward sexual orientation by adding the new definition of "de facto partner" into 62 Acts, provisions and statutes and created new family law designed to recognise same-sex unions as de facto unions.[81]

Constitutional and legal issues[edit]

Oceania
  Same-sex marriage
  Other type of partnership (or unregistered cohabitation)
  Limited recognition of same-sex marriages at the federal level, no territory level recognition
  No recognition
  Same-sex sexual activity illegal

Referral of power and recognition of married and de facto relationships[edit]

There is an important difference in the source of power of The Commonwealth to legislate over married and de facto relationships. Marriage and ‘matrimonial causes’ are supported by sections 51(xxi) and (xxii) of the Constitution. The legal status of marriage is also internationally recognised whereas the power to legislate for de facto's and their financial matters relies on referrals by states to the Commonwealth in accordance with Section 51(xxxvii) of the Australian Constitution, where it states the law shall extend only to states by whose Parliaments the matter is referred, or which afterward adopt the law.

Legal status consequences outside of Australia[edit]

Thus, same sex or heterosexual, unmarried and also married couples living in The Netherlands, Germany, Belgium and France for example, have the right to choose their own legal status and respective rights and obligations easily, such as to have no community or to have community of property, as an active opt in system at time of first living together. This is in contrast to the Australian de facto and married regimes where all property is in the pool, unless a couple actively opt out with a binding financial contract drawn up by lawyers and they also have to be resident in Australia to do that.

Landmark marriage legislation[edit]

Marriage Amendment Act 2004[edit]

On 27 May 2004 the then federal Attorney-General Philip Ruddock introduced the Marriage Amendment Bill 2004,[82] intending to incorporate the common law definition of marriage into the Marriage Act 1961 and the Family Law Act.[83] In June 2004, the bill passed the House of Representatives and the Senate passed the amendment by 38 votes to 6 on 13 August 2004. The bill subsequently received royal assent, becoming the Marriage Amendment Act 2004.

The amendment specifies the following:

Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
Certain unions are not marriages. 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.[84]

Under section 46 of the Marriage Act, a celebrant or minister is required to say these words, or words to this effect, in every marriage ceremony.[85]

Attorney-General Ruddock and other Liberals argued that the bill was necessary to protect the institution of marriage, by ensuring that the common law definition was put beyond legal challenge.[86]

The Labor shadow Attorney-General Nicola Roxon on the same day the amendment was proposed said that the Labor Opposition would not oppose the amendment, arguing that it did not affect the legal situation of same-sex relationships, merely putting into statute law what was already common law. The Family First senator supported the bill. The bill was also supported by the Nationals.

Despite having support of the major parties the bill was contested by sections of the community, human rights groups and some minor political parties. The Australian Greens opposed the bill, calling it the "Marriage Discrimination Act". The Australian Democrats also opposed the bill. Democrat Senator Andrew Bartlett stated that the legislation devalues his marriage, and Greens Senator Bob Brown referred to John Howard and the legislation as "hateful".[87][88] Brown was asked to retract his statements, but refused. Bob Brown also quoted as Australia having a "straight Australia policy".

Not all of Labor was in support of the bill. During the bill's second reading, Anthony Albanese, Labor MP for Grayndler said, "what has caused offence is why the government has rushed in this legislation in what is possibly the last fortnight of parliamentary sittings. This bill is a result of 30 bigoted backbenchers who want to press buttons out there in the community."[89]

Marriage Equality (Same Sex) Act 2013[edit]

On 13 September 2013, the Australian Capital Territory (ACT) Government made the announcement that it will put forward a bill that will legalise same-sex marriage, following a decade-long attempt to legislate in the area.[90] "We’ve been pretty clear on this issue for some time now and there’s overwhelming community support for this," Chief Minister Katy Gallagher said. "We would prefer to see the federal parliament legislate for a nationally consistent scheme, but in the absence of this we will act for the people of the ACT. The Marriage Equality Bill 2013 will enable couples who are not able to marry under the Commonwealth Marriage Act 1961 to enter into marriage in the ACT. It will provide for solemnisation, eligibility, dissolution and annulment, regulatory requirements and notice of intention in relation to same-sex marriages."[91] On 10 October 2013, federal Attorney-General George Brandis confirmed that the Commonwealth Government will challenge the proposed ACT bill, stating that the Coalition Government has significant constitutional concerns with respect to the ACT bill.[92] The bill was debated in the ACT Legislative Assembly on 22 October 2013, and passed by 9 votes to 8.[93][94]

Under the legislation, same-sex marriages are legally allowed from 7 December 2013.[95][96][97]

However, the High Court ruled that the legal change was never valid and an official reversal of the bill was announced on 12 December 2013. The court found that s51(xxi) of the Constitution grants the Commonwealth Parliament the power to legislate with regard to marriage, and the federal definition of marriage overrides any state or territory definition under s109. The court did find, however, that "marriage" for the purposes of s51(xxi) includes same-sex marriage, thus clarifying that there is no constitutional impediment to the Commonwealth legislating for same-sex marriage in the future.[98][99]

Public opinion[edit]

Polling[edit]

A June 2004 poll conducted by Newspoll showed that 38% of respondents supported same-sex marriage, with 44% opposed and 18% undecided.[100][101]

In June 2007, a Galaxy poll conducted for advocacy group GetUp! measured the opinions of 1,100 Australians aged 16 and over[102] and found that 57% of respondents supported same-sex marriage, 37% were opposed and 6% were unsure. The poll also found that 71% of respondents supported same-sex couples having the same legal entitlements as opposite-sex de facto couples.[103]

A June 2009 poll conducted by Galaxy Research and commissioned by the Australian Marriage Equality group measured the opinions of 1,100 Australians aged 16 and over and found that 60% of respondents supported the recognition of same-sex marriage, with 36% opposed and 4% undecided.[104] Among Greens voters 82% supported same-sex marriage, whilst 74% of those aged 16–24 supported same-sex marriage. Those aged 50 or above were the only age bracket to oppose same-sex marriage recognition, at a 55% disapproval rate.[104]

An October 2010 poll conducted by Galaxy Research and commissioned by Australian Marriage Equality measured the opinions of 1,050 Australians aged 18 and over and found that 62% of respondents supported the recognition of same-sex marriage, with 33% opposed and 5% undecided.[105] The poll found 78% of respondents supported a conscience vote on the recognition of same-sex marriage, with 16% opposed and 6% undecided. Support was highest amongst those respondents aged 18–24 (84%), and who lived in South Australia (83%). The majority of respondents from each state and each age bracket were in support.[105]

A March 2011 poll conducted by Essential Media found that support for same-sex marriage had fallen below 50% and opposition was up by 4%. [105]

A July 2011 poll of 543 people conducted by Roy Morgan Research measured the support for a number of positions on marriage and found that 68% of Australians support same-sex marriage and 78% classified marriage as a ‘necessary’ institution, with only 22% stating it was a 'unneseccary' institution.[105]

A November 2011 Galaxy Research poll of over 1000 voters found that 80% agreed that Tony Abbott should allow the Liberal/National Coalition a conscience vote on same-same marriage legislation as the Australian Labor Party do. Support for a conscience vote among Coalition supporters reached an all-time high of 76%[106]

In a February 2012 online poll of 1506 Australian adult members on the Nine Rewards website by Angus Reid Public Opinion found that 49% of respondents said same-sex couples should be allowed to legally marry, 31% said they should be allowed to enter into civil unions but not marry and 14% opposed any legal recognition.[107] No attempt was made to make the survey representative of the entire population, and the Nine Rewards website is associated with the Nine Network, an Australian television channel popular with older and more conservative viewers.

From February–April 2012 the House of Representatives conducted an online survey to provide a simple means for the public to voice their views on same-sex marriage and the two bills in the parliament which sought to legalise it, the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012.[108] The survey closed on 20 April, having received approximately 276,000 responses, including about 213,500 comments.[109] Of these responses, 64.3% supported same-sex marriage, or approximately 177,600 of the respondents. The report acknowledged that "The online survey was not a statistically valid, random poll. Respondents were self-selected, in that they chose to participate if they wished." [110]

A May 2013 Ipsos poll found that 54% of respondents were in favour of same-sex marriage and another 20% supported another form of recognition for same-sex couples.[111] Results from the August 2013 Vote Compass survey of Australian voters found that 52% of respondents supported same-sex marriage, 12% were neutral, and 36% believed that marriage "should only be between a man and a woman".[112]

An August 2013 poll conducted by Fairfax Media and Nielson Polling found that 65% of respondents supported legalising marriage between same-sex couples, up 8 points since December 2011, while only 28% were opposed (down 7 points). Support was greater among women (75%) than men (55%) and greater among younger voters than older voters.[113] 57% of respondents said that same-sex marriage was ‘not important at all’ in deciding how they would vote in the coming election.[10] Even for those supporting same-sex marriage 49% said that the issue was "not important at all" in deciding their vote.[113]

A July 2014 poll, commissioned by Australian Marriage Equality and conducted by Lynton Crosby and Mark Textor found that 72% of Australians supported legalising same-sex marriage, while only 21% were opposed. A majority of those identifying with major religions supported same-sex marriage, including Catholics, Anglicans and non-Christian religions as did a majority of older Australians aged over 55. Mark Textor stated "This poll definitively puts pay to some of the myths that married couples or those with religious beliefs are against same-sex marriage. It doesn’t devalue their marriages or faith, and instead gives everyone equal access to the rights they are accorded". Further, 77% of respondents agreed that Coalition MP's and Senators should be granted a conscience vote on the issue.[114][115]

Federal parliamentarians who publicly support same-sex marriage[edit]

House of Representatives[edit]

The Australian House of Representatives contains 150 seats. On 19 September 2012, a bill introduced by Labor MP Stephen Jones aimed at legalising same-sex marriage was defeated 42 to 98 votes. Labor MPs were allowed a conscience vote while Liberal Party Leader Tony Abbott did not allow a free vote for Liberal Party MPs.[116] However, Liberal frontbencher Kevin Andrews said that, "(We) counted the numbers ... The reality is it would not have made much difference whatsoever to the numbers. There would have been half a dozen people... who would have voted the other way.[117]

Active MPs who have announced their support of same-sex marriage:[116]

41 / 150
Member Party Electorate State/Territory
Anthony Albanese[116] Labor Grayndler NSW
Adam Bandt[116] Greens Melbourne VIC
Sharon Bird[116] Labor Cunningham NSW
Gai Brodtmann[116] Labor Canberra ACT
Mark Butler[116] Labor Port Adelaide SA
Terri Butler[118] Labor Griffith QLD
Nick Champion[116] Labor Wakefield SA
Jason Clare[116] Labor Blaxland NSW
Julie Collins[116] Labor Franklin TAS
Pat Conroy[119] Labor Charlton NSW
Clare O'Neil[120] Labor Hotham VIC
Mark Dreyfus[116] Labor Isaacs VIC
Justine Elliot[116] Labor Richmond NSW
Kate Ellis[116] Labor Adelaide SA
Matt Thistlethwaite[121] Labor Kingsford Smith NSW
Lisa Chesters[122] Labor Bendigo VIC
Gary Gray[116] Labor Brand WA
Sharon Claydon[123] Labor Newcastle NSW
Alan Griffin[116] Labor Bruce VIC
Jill Hall[116] Labor Shortland NSW
Andrew Giles[124] Labor Scullin VIC
Stephen Jones[116] Labor Throsby NSW
Catherine King[116] Labor Ballarat VIC
Jenny Macklin[116] Labor Jagajaga VIC
Richard Marles[116] Labor Corio VIC
Melissa Parke[116] Labor Fremantle WA
Graham Perrett[116] Labor Moreton QLD
Tanya Plibersek[116] Labor Sydney NSW
Amanda Rishworth[116] Labor Kingston SA
Tim Watts[125] Labor Gellibrand VIC
Bill Shorten[116] Labor Maribyrnong VIC
Alannah MacTiernan[126] Labor Perth WA
Warren Snowdon[116] Labor Lingiari NT
Andrew Wilkie[116] Independent Denison TAS
Laurie Ferguson*[127] Labor Werriwa NSW
Teresa Gambaro*[128] Liberal Brisbane QLD
Andrew Leigh*[129] Labor Fraser ACT
Kelly O'Dwyer*[130] Liberal Higgins VIC
Malcolm Turnbull*[131] Liberal Wentworth NSW
Michael Danby*[132] Labor Melbourne Ports VIC
Wyatt Roy*[133] Liberal National Longman QLD

* Has previously voted against same-sex marriage

Senate[edit]

The Australian Senate contains 76 seats. The following lists active Senators who voted to legalise same-sex marriage in September 2012 or have since announced their support of same-sex marriage:[134]

28 / 76
Member Party State/Territory
Simon Birmingham*[135] Liberal SA
Carol Brown[134] Labor TAS
Doug Cameron[134] Labor NSW
Kim Carr[134] Labor VIC
Nova Peris[136] Labor NT
Richard Di Natale[134] Greens VIC
Sue Lines[137] Labor WA
John Faulkner[134] Labor NSW
Sarah Hanson-Young[134] Greens SA
David Leyonhjelm[138] Liberal Democratic NSW
Scott Ludlam[134] Greens WA
Kate Lundy[134] Labor ACT
Gavin Marshall[134] Labor VIC
Anne McEwen[134] Labor SA
Jan McLucas[134] Labor QLD
Christine Milne[134] Greens TAS
Claire Moore[134] Labor QLD
Janet Rice[139] Greens VIC
Lee Rhiannon[134] Greens NSW
Rachel Siewert[134] Greens WA
Sam Dastyari[140] Labor NSW
Lisa Singh[141] Labor TAS
Anne Urquhart[134] Labor TAS
Larissa Waters[134] Greens QLD
Peter Whish-Wilson[134] Greens TAS
Penny Wong[134] Labor SA
Penny Wright[134] Greens SA
Nick Xenophon[134] Independent SA

* Has previously voted against same-sex marriage

Recognition of unions involving transgender people[edit]

In October 2007, the Administrative Appeals Tribunal overturned a decision by the Foreign Affairs Department refusing to issue a transgender woman a passport listing her as female because she is married to a woman. The tribunal ordered that she be issued a passport listing her as female, in accordance with her other official documents, thereby recognising the existence of a marriage between two persons who are legally recognised as female.[142]

Marriage equality advocates have noted that where same-sex marriage legislation is unclear on the rights of transgender or intersex people, they have asked to ensure that any such legislation delivers marriage equality for all Australians.[143]

See also[edit]

LGBT rights in Australian states and territories:

References[edit]

  1. ^ Marriage Amendment Act Cth. 2004
  2. ^ Official report: Same-sex same entitlements
  3. ^ a b Attorney General's website: same-sex law reform
  4. ^ NSW bill is about marriage just not equality
  5. ^ Australian Parliament website
  6. ^ HREOC Same-sex same entitlements Report
  7. ^ Human Rights and Equal Opportunity (HREOC Australia) report, Same-sex Entitlements Discussion Paper II (2006)
  8. ^ "How well does Australian democracy serve sexual and gender minorities?", Democratic audit of Australia, ANU School of Social Science report No. 9, 2003 p. 19 [1]
  9. ^ Human Rights and Equal Opportunity Commission: Same-Sex: Same Entitlements Report
  10. ^ a b Neilsen, Mary Anne. "Same-sex marriage". Australian Parliament House. Retrieved 10 May 2014. 
  11. ^ Rees told listen and legalise gay marriage
  12. ^ Inquiry into the Marriage Equality Amendment Bill 2009
  13. ^ 8000 Come Out For Gay Marriage
  14. ^ Senate votes down same-sex marriage bill
  15. ^ Senate rejects gay marriage bill
  16. ^ Gay Marriage a surprise issue in election campaign (ABC News)
  17. ^ Labor decides on conscience vote for gay marriage
  18. ^ Labor backs same-sex marriage
  19. ^ "Inquiry into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012". House Standing Committee on Social Policy and Legal Affairs. Retrieved 28 August 2012. 
  20. ^ Lower House votes down same-sex marriage bill
  21. ^ Australian Senate votes down same-sex marriage bill
  22. ^ Rudd announces gay marriage switch
  23. ^ Gay marriage advocates welcome Rudd gay marriage pledge
  24. ^ Hall, Ashley (28 June 2013). "Kevin Rudd's gay marriage referendum offer dismissed by advocates'". ABC. Retrieved 12 May 2014. 
  25. ^ Turnbull signals coalition support for conscience vote on gay marriage
  26. ^ Coalition could consider free vote on gay marriage
  27. ^ Tanya Plibersek seeks Malcolm Turnbull's help on gay marriage bid (The Age)
  28. ^ New senator David Leyonhjelm urges libertarian MPs to 'come out of the closet' and support same-sex marriage
  29. ^ Marriage Amendment Act 2004
  30. ^ Fact file: High Court decision on ACT same-sex marriage laws (ABC News)
  31. ^ Media release report clears way for NSW same-sex marriage law
  32. ^ Tas. Law Reform Institute report on same-sex marriage at a state and federal level
  33. ^ Same-sex marriage laws won't be amended by ACT Government
  34. ^ High Court challenge to gay marriage
  35. ^ ABC Fact Checker: ACT's gay marriage law
  36. ^ How the ACT gay marriage law is designed to fail
  37. ^ Gay marriage passes in Tasmania lower house
  38. ^ Gay marriage fails in Tasmania upper house
  39. ^ "Assembly passes civil unions reforms". 
  40. ^ Civil Unions Act 2012
  41. ^ "Civil Unions". ACT Government: Justice and Community Safety Division. 25 February 2014. Retrieved 24 June 2014. 
  42. ^ "Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008". Parliament of New South Wales. Retrieved 2008-06-11. 
  43. ^ "Parenting reforms welcomed". SX News. 11 June 2008. Retrieved 2008-06-11. 
  44. ^ NSW RELATIONSHIP REGISTER PASSED, Sydney Star Observer
  45. ^ Relationships Register Bill 2010
  46. ^ Farrow, Lauren (14 November 2013). "NSW same-sex bill defeated tears in parly". The Australian. Retrieved 10 May 2014. 
  47. ^ "NSW MP continues defence of marriage". Catholic Leader. 10 November 2013. Retrieved 10 May 2014. 
  48. ^ Statute Law Amendment (Relationships) Act 2001
  49. ^ Statute Law Further Amendment (Relationships) Act 2001
  50. ^ Same sex relationships, Victorian Equal Opportunity & Human Rights Commission
  51. ^ Relationships Act 2008
  52. ^ DISCRIMINATION LAW AMENDMENT ACT 2002
  53. ^ (1 December 2011) Kym Agius. Queensland civil unions bill passes. Brisbane Times. Fairfax Media. Retrieved 29 August 2013.
  54. ^ "Civil Partnerships and Other Legislation Amendment Bill 2012". Queensland Parliament. Retrieved 22 June 2012. 
  55. ^ South Australian Legislation
  56. ^ STATUTES AMENDMENT (EQUAL SUPERANNUATION ENTITLEMENTS FOR SAME SEX COUPLES) ACT 2003 (NO 13 OF 2003)
  57. ^ STATUTES AMENDMENT (DOMESTIC PARTNERS) ACT 2006 (NO 43 OF 2006)
  58. ^ Legal Services Commission of South Australia
  59. ^ South Australia gays get new rights - from Pink News - all the latest gay news from the gay community - Pink News Archived 21 December 2009 at WebCite
  60. ^ Gay News From 365Gay.com
  61. ^ GayWired.com - Southern Australia Approves Domestic Partners Legislation; Gay Rights Advocates Celebrate
  62. ^ "STATUTES AMENDMENT (DOMESTIC PARTNERS) ACT 2006 (NO 43 OF 2006)". South Australian Numbered Acts. Retrieved 2007-09-03. 
  63. ^ "Statutes Amendment (Domestic Partners) Act 2006". Government of South Australian Attorney-General's Department. Retrieved 2007-09-03. 
  64. ^ "Southern Australia Approves Domestic Partners Legislation; Gay Rights Advocates Celebrate". GayWired.com. Retrieved 2008-05-01. 
  65. ^ "Southern Australia Approves Domestic Partners Legislation; Gay Rights Advocates Celebrate". gaywired.com. Retrieved 2007-09-03. 
  66. ^ "Votes on Homosexual Issues". South Australia, Australia, House of Assembly. Archived from the original on 2007-06-07. Retrieved 2007-09-03. 
  67. ^ "SA Upper House passes bill for same-sex rights (Thursday, December 7, 2006. 6:49pm (AEDT))". ABC News Online. Retrieved 2007-09-03. 
  68. ^ "South Australia gays get new rights by Tony Grew (7 December 2006)". pinknews.com.au. Archived from the original on 2009-12-21. Retrieved 2007-09-03. 
  69. ^ Commonwealth Powers (De Facto Relationships) Act 2009
  70. ^ Dunkin, Alex (14 November 2012). "ACL enters SA marriage debate". Gay News Network. Retrieved 10 May 2014. 
  71. ^ "SA same-sex marriage bill defeated". NineMSN. Retrieved 10 May 2014. 
  72. ^ "Same-sex marriage bill voted down in South Australian parliament". ABC. 25 July 2013. Retrieved 10 May 2014. 
  73. ^ Births Deaths and Marriages : Relationships
  74. ^ Partners Task Force - Tasmania: Relationships Act
  75. ^ "Upper-house endorses same-sex amendment". Australian Broadcasting Corporation. 2010-09-29. Retrieved 2010-09-29. 
  76. ^ Harrison, Dan (31 August 2012). "Tasmania's gay marriage bill clears first hurdle". The Sydney Morning Herald. Retrieved 10 May 2014. 
  77. ^ "Tasmania's Upper House votes down gay marriage". ABC. 28 September 2012. Retrieved 10 May 2014. 
  78. ^ Smiley, Stephen (26 November 2013). "Tasmanian Upper House MPs reject bid to revive debate on same-sex marriage". ABC. Retrieved 10 May 2014. 
  79. ^ Norfolk Island Homepage (see De Facto Relationships Act 2005)
  80. ^ LAW REFORM (GENDER, SEXUALITY AND DE FACTO RELATIONSHIPS) ACT 2003 Archived 21 December 2009 at WebCite
  81. ^ Acts Amendment (Lesbian and Gay Law Reform) Act 2002 Archived 21 December 2009 at WebCite
  82. ^ Marriage Amendment Bill 2004
  83. ^ "TranslateWIPILink". Parlinfoweb.aph.gov.au. 27 May 2004. Retrieved 2010-06-01. 
  84. ^ "SavedQuery". Parlinfoweb.aph.gov.au. Retrieved 2010-06-01. 
  85. ^ "Marriage Act, Section 46". Retrieved 2012-04-17. 
  86. ^ "SavedQuery". Parlinfoweb.aph.gov.au. Retrieved 2010-06-01. 
  87. ^ http://parlinfoweb.aph.gov.au/piweb/translatewipilink.ASPX?Folder=HANSARDS&Criteria=DOC_DATE:2004-08-12;SEQ_NUM:324; "[…] you cannot be on one or the other side of a divide with discriminatory legislation like this. The people who are on the receiving end of this discriminatory legislation will find it hateful. It impacts on them. It is not a loving message coming from the Prime Minister; it is the opposite. I have said that this is legislation of hate. I have said that this is a message of hate coming from the Prime Minister. It came from George W. Bush initially. […] Discrimination is hate in this circumstance and it is not unparliamentary for me to say so. […] When you discriminate against people, they feel they are being hated.";
  88. ^ "Coalition, Labor pass same-sex marriage ban". ABC News Online. 13 August 2004. 
  89. ^ Albanese, Anthony (2004-06-16). "Marriage Legislation Amendment Bill 2004: Second Reading". Anthony Albanese MP. Retrieved 2008-05-26. 
  90. ^ "Australian Capital Territory to legalise gay marriage by the end of the year". 
  91. ^ "ACT's gay marriage test for Tony Abbott". 
  92. ^ "Same-sex marriage law High Court challenge confirmed". Retrieved 18 October 2013. 
  93. ^ "Australia to pass first same-sex marriage law next Tuesday | Gay Star News". Retrieved 18 October 2013. 
  94. ^ "ACT legalises same-sex marriage". News.com.au. Retrieved 2013-10-22. 
  95. ^ Peter Jean (25 November 2013). "Commonwealth 'doesn't prohibit' gay marriage, ACT argues". The Age. Retrieved 15 December 2013. 
  96. ^ "Hundreds rally in support of gay marriage". 7 News. 23 November 2013. Retrieved 15 December 2013. 
  97. ^ "Gay marriage hearing likely in December". 9 News National. 25 October 2013. Retrieved 15 December 2013. 
  98. ^ The Commonwealth v Australian Capital Territory [2013] HCA 55
  99. ^ Adam Withnall (12 December 2013). "Australia: Gay marriage law reversed by high court less than a week after first weddings". The Independent. Retrieved 15 December 2013. 
  100. ^ Same-sex marriage debate
  101. ^ Same-sex marriage public opinion trend from 2004-2010
  102. ^ Public backs gay unions, equality - National - theage.com.au
  103. ^ 'Most Australians back same-sex marriage' | News.com.au
  104. ^ a b [2][dead link]
  105. ^ a b c d [3][dead link]
  106. ^ Abbott comes under pressure to allow same-sex marriage conscience vote: The Australian 5 December 2011
  107. ^ Australians Support Same-Sex Marriage More Than Americans and Britons: Angus Reid Public Opinion 12 March 2012
  108. ^ "Inquiry into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012". Aph.gov.au. Retrieved 2014-04-05. 
  109. ^ "Inquiry into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012 - Summary of responses". Aph.gov.au. Retrieved 2014-04-05. 
  110. ^ "Inquiry into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012 - Report". Aph.gov.au. Retrieved 2014-04-05. 
  111. ^ "Same-Sex Marriage". Ipsos. 7–21 May 2013. 
  112. ^ "Vote Compass: Majority of voters back gay marriage". abc.net.au. 29 Aug 2013. 
  113. ^ a b Gay marriage support up but it won't change poll
  114. ^ Mark Textor (15 Jul 2014). "New poll shows record 72% support for marriage equality". Crosby Textor Group. 
  115. ^ Lisa Cox (15 July 2014). "Poll shows growing support for same-sex marriage". The Age. Fairfax Media. Retrieved 15 July 2014. 
  116. ^ a b c d e f g h i j k l m n o p q r s t u v w x y z aa Cullen, Simon (19 September 2012). "Lower House votes down same-sex marriage bill". ABC News. Retrieved 19 September 2012. 
  117. ^ "Same-sex marriage question settled for some time, says Kevin Andrews'". The Australian. 7 October 2012. Retrieved 12 May 2014. 
  118. ^ Butler's position
  119. ^ Conroy's position
  120. ^ O'Neill's position
  121. ^ See here
  122. ^ Chester's position
  123. ^ Claydon's position
  124. ^ Giles' position
  125. ^ Watts' position
  126. ^ Her position
  127. ^ Bertola, Vera (14 September 2011). "Laurie Ferguson alone in same-sex support". Werriwa: Macarthur Chronicle. 
  128. ^ "Gay marriage: does your MP agree with you?". news.com.au. 1 December 2010. 
  129. ^ Andrew Leigh (13 February 2012). "Same-Sex Marriage". andrewleigh.com. 
  130. ^ Kelly states her position on Same Sex Marriage
  131. ^ "Turnbull's gay marriage support opens door for other Coalition MPs". Australian Marriage Equality. 6 December 2011. 
  132. ^ Potts, Andrew (25 May 2013). "Labor MP changes mind on marriage as Sydney marches for equality". Gay Star News. Retrieved 25 May 2013. 
  133. ^ Piotrowski, Daniel (24 May 2013). "Coalition MP Wyatt Roy, 23, supports gay marriage". News.com.au. Retrieved 25 May 2013. 
  134. ^ a b c d e f g h i j k l m n o p q r s t u v Cullen, Simon (20 September 2012). "Senate votes down same-sex marriage bill". ABC News. Retrieved 20 September 2012. 
  135. ^ Karvelas, Patricia (12 November 2010). "Liberal senator backs gay marriage". The Australian. 
  136. ^ Peris' position
  137. ^ Lines' position
  138. ^ New senator David Leyonhjelm urges libertarian MPs to 'come out of the closet' and support same-sex marriage
  139. ^ Greens party policy: Marriage equality
  140. ^ Dastyari's position
  141. ^ Singh's position
  142. ^ Australian trans passport victory- from Pink News- all the latest gay news from the gay community - Pink News
  143. ^ Busby, Cec (26 February 2014). "Advocates call for inclusive marriage equality bill". Gay News Network. Retrieved 16 May 2014.