Same-sex marriage in Australia

Same-sex marriage is not recognised under Australian federal law. Under section 51(xxi) [1] of the Australian Constitution, the Parliament of Australia is vested with the powers to make laws with respect to marriage. Until 2004 the Marriage Act 1961 did not define marriage, but the common law definition of marriage as "a union between a man and a woman" was applied by Australian courts and was taken to be "settled law."

The Marriage Legislation Amendment Bill

The possibility of a challenge to the common law definition of marriage arose when same-sex marriage became legal in Ontario, Canada, in 2003. Since Ontario law does not restrict the right to marry to residents or Canadian citizens, the possibility arose that Australian citizens would contract same-sex marriages in Ontario and then return to seek recognition of those marriages in Australian courts.

On May 27, 2004, therefore, the Attorney-General, Philip Ruddock, introduced[2] the Marriage Legislation Amendment Bill, intending to incorporate the common law definition of marriage into the Marriage Act and the Family Law Act. Although this was not intended to alter the current status of same-sex relationships, it would preclude any possibility that the courts could overturn the common law definition and recognise the validity of a same-sex marriage legally contracted in another country.

Responses by major parties to the bill

The Labor shadow Attorney-General, Nicola Roxon, said on the same day the amendment was proposed that the Labor Opposition would not oppose the section of the legislation amending the Marriage Act. Support for same-sex marriage has never been Labor policy. Labor feared that the government was introducing the legislation with the intention of using it as a wedge issue at the federal election expected before end of 2004.

Labor argued that the amendment did not affect the legal situation of same-sex relationships, merely putting into statute law what was already common law. Ruddock and other Liberals argued that bill was necessary to "protect the institution of marriage" against what they said was the "threat" of same-sex marriage, by ensuring that the common law definition was put beyond legal challenge [3].

The Australian Democrats and the Australian Greens opposed the legislation in the Senate, however Labor's support ensured that it was passed through both houses of Parliament. In June 2004, the bill passed the House of Representatives. On August 13, 2004, the Senate passed the amendment by 38 votes to 6.

Specifications of the bill

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.[4]

Responses to the bill

Criticisms of the bill during the Senate discussions included an amendment[5] proposed by the Greens to change the name of the bill to the "Marriage Discrimination Act" (which failed), an emotional Democrat Senator Andrew Bartlett, stating that the legislation "devalues [his] marriage", and with Greens Senator Bob Brown referring to the Prime Minister John Howard and the legislation as "hateful"[6] [7]. Brown was asked to retract his statements, but refused.

Until recently most gay rights activists in Australia did not regard the legal recognition of same-sex marriage as a high priority as compared with other issues, such as abolishing discriminatory laws relating to superannuation, adoption, next-of-kin rights, and other matters. Under the influence of events in the United States and Canada, however, the issue has become more prominent, although some gay rights activists still take the traditional view that marriage is a heterosexual institution which gay men and lesbians should not participate in.

Labor's decision not to oppose the amendment of the Marriage Act thus drew sharp criticism from the gay and lesbian rights movement. In response, Roxon argued that the bill did not change the legal position of same-sex relationships, and was merely a "Howard election stunt." She said that Labor remained committed to a comprehensive policy of gay and lesbian rights.

Move for reversal and establishment of same-sex marriage

On June 16, 2006, the Australian Democrats senator Andrew Bartlett (and also on behalf of Democrat senator Natasha Stott-Despoja) moved a bill that would effectively repeal the above legislation, now the "Marriage Amendment Act 2004", and to establish that "nothing ... is intended to prevent the union of two people of the same sex", "[use] gender neutral language to accommodate unions between both heterosexual and homosexual couples", and to make other amendments in the Marriage Act to remove explicit reference to "husband" or "wife".[8]

Since the Coalition Government of 2006 (who originally instituted the Marriage Amendment Act) has a majority in the Senate there is no prospect of this bill being passed.

Civil union proposals

After the United Kingdom began granting same-sex civil partnerships in December 2005, Prime Minister Howard said he would be opposed to legislation granting similar civil unions in Australia. Some Liberal backbenchers, including Warren Entsch, pledged support for such unions and are pushing to increase support for them within Parliament.[9] In February 2006, Entsch announced that he was preparing a private member's bill that would recognize civil unions. He said he has support for the bill from other Liberal MPs, including some of Howard's cabinet members.[10]

In March 2006, independent Victorian MP Andrew Olexander proposed a private member's bill to allow civil partnerships in the state, but the state government has not allowed it to be drafted by the parliamentary counsel.[11]

HREOC Inquiry

On Monday 3 April 2006, the Human Rights and Equal Opportunity Commission launched 'Same-Sex: Same Entitlements': A National Inquiry into Discrimination against People in Same-Sex Relationships Regarding Financial and Work-Related Benefits and Entitlements. [12]. The Commission is due to present its findings in early 2007.

A preliminary list of legislation that may require amendment to include same-sex families in Commonwealth laws can be found at http://www.hreoc.gov.au/samesex/preliminary_list_Cth_legislation.html

State law

At a state level, there is recognition of same-sex de facto relationships. States with domestic partner laws for same-sex couples:

Australian Capital Territory - Distribution of property and finances in the event of a separation, inheritance in the event of death. Currently the ACT has enacted laws relating to same-sex adoption. The ACT Government announced plans for civil unions to be introduced from early 2006 and proposed legislation in March. Attorney-General Philip Ruddock said that the enactment of the bill for civil unions "will not satisfy the Commonwealth"[13] and it would intervene unless the bill was changed. The Stanhope Government acceded to his wishes, and changed the specified parts of the bill accordingly. However, according to the Attorney-General, other changes were made which circumvented these changes. The Civil Unions Act 2006 was passed on 11 May 2006. On 6 June 2006, Ruddock announced plans to request the Governor-General disallow the law on the basis it was ultra vires the territory's self-government act. The ACT enacted the legislation on 9 June 2006 and it was disallowed by the Governor-General on 13 June 2006 at the instruction of the Federal Executive Council.[14]

New South Wales - The Workers Compensation Act now include same-sex couples. The Victims Compensation Act and the Criminal Procedure Act have also been reformed to include same-sex couples. Previously, under the Workers Compensation Act, entitlements were only extended to a heterosexual worker's dependent spouse and children. The Act now includes dependent same-sex partners, parents and siblings. In 2004, the City of Sydney Council, led by Lord Mayor Clover Moore, introduced a re-working of the former South Sydney Council's Partnership Registration scheme, renaming it the City of Sydney Relationships Declaration Program. While not conferring the additional legal rights of marriage, it may confer some limited legal recognition as this document may be produced as evidence of the relationship.

Northern Territory - Members of the Legislative Assembly in the Northern Territory can take their same-sex partners with them on overseas trips at taxpayer expense, the territorial Remuneration Tribunal ruled on 12-9-03. The tribunal redefined a de-facto spouse as a "person who is not married to the Member, but is in a marriage-like relationship with the Member."

Queensland - Distribution of property in the event of a separation. Allows couples in same-sex relationships who are victims of relationship violence to take out domestic voilence orders against a violent partner, and other protective measures, including counseling services.

South Australia - Extends superannuation entitlements under four state superannuation acts to allow same-sex couples the same rights as heterosexual couples. A bill to give same sex couples similar legal rights to de-facto couples before parliament in 2005 lapsed and South Australia remains the only state or territory not to give some legal recognition to same sex couples.

Tasmania- Since January 1, 2004, The Relationships Act allows same-sex couples to register their union with the state's Registry of Births, Death and Marriages. Gives homosexuals rights in making decisions about their partner's health, provides for guardianship when a partner is incapacitated, and gives homosexuals equal access to their partner's public sector pensions. Allows homosexuals to adopt the biological child of their partner.

Victoria - Gives same-sex couples 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.

Western Australia- Allows same-sex couples equal access to adoption procedures and in vitro fertilization treatment. It also gives same-sex couples the same rights as opposite sex couples in areas such as transfer of property, medical treatment, and inheritance upon the death of a partner.

Discrimination against same-sex couples in Federal legislation

Aged care - not recognised under the Aged Care Act 1997, which can result in same-sex partners qualifying for less financial assistance under the Residential Care Subsidy Scheme.
Child support - same-sex families are excluded from the Child Support Scheme set up under the Child Support (Assessment) Act 1989.
Defence and Veterans' Affairs - despite recent reforms to the Defence Instruction (General) Manual and the Australian Defence Force Pay and Conditions Manual, discrimination remains in the Defence Force Retirement and Death Benefits Act 1973, Veterans’ Entitlements Act 1986 and the Defence Force (Home Loans Assistance) Act 1990 (amongst others).
Family law - same-sex couples are excluded under the Family Law Act 1975 from accessing the Family Court after relationship breakdowns except in disputes relating to children.
Insurance - no federal legislation exists to prohibit insurers' discrimination on the basis of sexuality.
Medicare and the Pharmaceutical Benefits Scheme - the Medicare and PBS Safety Nets, constituted under the Health Insurance Act 1973 and National Health Act 1953, do not recognise same-sex couples.
Superannuation
Taxation
Welfare

Public opinion

A Newspoll poll released by SBS World News in June 2004 said 38 percent of respondents were in favor of same-sex couples "being given the same rights to marry as couples consisting of a man and a woman," while 44 percent were opposed.[15][16]

A Newspoll poll, commissioned by the Humanist Society of NSW, taken February 2006 said 52 percent of respondents agreed that the government should introduce a law to recognise same-sex relationships (whether through marriage or civil unions was not specified), while 37 percent disagreed.[17][18]

External links

News articles

"PM joins opposition to gay marriage as cleric's election stalls". The Sydney Morning Herald. 6 August 2003.
"Love, honour and gay". The Bulletin. 3 October 2003.
"Latham promises same sex rights". The Age. 4 January 2004.
"Latham flirts with prejudice over gay marriage ban". Greens WA. 2 February 2004.
"Labor Right sinks same-sex scheme". The Age. 3 February 2004.
"Same-sex wedding fever". The Sydney Morning Herald. 16 February 2004.
"Coalition, Labor pass same-sex marriage ban". Australian Broadcasting Corporation. 13 August 2004.

Other

On the Marriage Amendment Bill

Senate Hansard speeches

Divisions

Second Reading
In committee (on amendments proposed by Greens and Democrat senators)
Third reading