Recognition of same-sex unions in Australia

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Same-sex unions are treated as de facto unions under the 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 by the definition of marriage contained within the federal Marriage Act (1961), as amended in 2004 by the Howard Government.[1]

Since then, sixteen attempts[2] have been made to change the definition of marriage, in federal and state parliaments. All of these have been unsuccessful. In December 2013 the Australian Capital Territory (ACT) briefly legalised same-sex marriage at a territory-based level, though the Federal Government launched a challenge in the High Court and the ACT legislation was struck down on the basis that laws with respect to marriage were a constitutionally exclusive power of the Commonwealth. The current policy of the Coalition Government is to conduct a national plebiscite on the issue sometime after the 2016 federal election.[3] The opposition Labor Party supports same-sex marriage in its national platform (though allows its parliamentary members a conscience vote on same-sex marriage legislation until 2019) and current party leader Bill Shorten has pledged to introduce a Marriage Equality Bill in the parliament within 100 days of taking office if elected to government at the next election.[4][5]

Federal law[edit]

De facto unions[edit]

Following the Australian Human Rights Commission's 2007 report Same-Sex: Same Entitlements[6] 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.[7][8] These laws amended several other existing Commonwealth acts to equalise treatment for same-sex couples and any children that 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. Such reforms, however, do not completely equalise treatment for same-sex couples;; for instance, they do not have the same rights and entitlements as married heterosexual couples with respect to workers' compensation death benefits, pensions for the partners of Defence Force veterans and access to carer's leave.[9] Despite large equality of rights, Australia does not have a national registered partnership, civil union or same-sex relationship scheme.

Legislative history prior to de facto unions[edit]

In 2004, amendments to the Superannuation Industry (Supervision) Act[10] 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.[11] 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'.[12][13]

The previous conservative Howard Government banned its departments from making submissions to the HREOC inquiry regarding financial discrimination experienced by same-sex couples.[14]

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" [15] were things same-sex couples were effectively barred from utilising under the former system.

Marriage[edit]

The Marriage Act [Section 5 (1)], amended in 2004, defines marriage "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life."[16] Section 88EA of the Act also stipulates that any foreign marriages of same-sex couples "must not be recognised as a marriage in Australia".[17]

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, Malcolm Turnbull, supports same-sex marriage and has committed to holding a national plebiscite on the issue sometime after the 2016 federal election.[18][19][20] The following details the history of same-sex marriage law reform attempts in federal parliament.

40th, 41st and 42nd Parliaments (2004–10)
In the later stages of the 40th Parliament, increased public attention with respect to same-sex marriage came about due to court decisions in Massachusetts legalising same-sex marriage. In an attempt to prevent any judicial imposition of same-sex unions in Australia, the Howard Government introduced the Marriage Amendment Act in the Parliament on 27 May 2004.[21] The amendment specified that marriage, previously undefined in the Act, would be defined as a "union of a man and a woman to the exclusion of all others" and that foreign same-sex marriages would not be recognised as such in Australia.[22] Additional reforms to the Family Law Act prevented same-sex couples from being eligible adoptive parents for children in inter-country adoption arrangements,[22] though these restrictions were eventually relaxed in 2014.[23] The amendment passed the parliament on 13 August 2004[24] and went into effect on the day it received Royal Assent, 16 August 2004.[25]

Following the Government's amendment to the Marriage Act banning same-sex marriage, the first attempts at reform came via private members bill's raised in the Senate by Michael Organ of the Greens and Natasha Stott Despoja and Andrew Bartlett of the Democrats.[26] Organ introduced the Same Sex Relationships (Ensuring Equality) Bill 2004 and the Democrats the Same-Sex Marriage Bill 2006 in the following parliament. A further four bills were introduced in the Senate through the period of the Howard and Rudd governments, though all were either rejected or lapsed in parliament.[26] Greens senator Sarah Hanson Young's 2009 bill to legalise same-sex marriage was the first marriage equality bill reviewed by a parliamentary committee. In November 2009 the Legal and Constitutional Affairs Legislation Committee, despite recommending reforms designed to create a nationally consistent recognition scheme for same-sex relationships, recommended Ms Hanson-Young's Marriage Equality Amendment Bill 2009 not be passed.[27] In the lead-up to the committee's decision, the largest protests for same-sex marriage in the nation's history took place on 1 August 2009, in a variety of cities across Australia.[28] The bill did reach a vote in the Senate on 25 February 2010. The bill was rejected by a margin of 45 votes to 5, with only the Greens senators voting in favour of the bill and many Senators not in attendance.[29][30]

43rd Parliament (2010–13)
In the election campaign of 2010, then-Prime Minister Julia Gillard, in an interview with the Australian Christian Lobby, stated that her government would not sponsor or support any bill to legislate for same-sex marriage if successful at the election.[31] Despite narrowly retaining government, the Labor Party were quickly forced into an internal debate on the issue, with several party members publicly speaking out against the party and the leader's opposition to same-sex marriage.[32] At the December 2011 National Conference, Labor overwhelmingly endorsesd a change to the party platform, in support of legalising same-sex marriage. Prime Minister Gillard, who had previously stated her personal objection to same-sex marriage, successfully sponsored a motion to allow MP's and Senators a free vote on same-sex marriage legislation. The motion passed narrowly by 208 votes to 184.[33][34]

In February 2012, two bills to allow same-sex marriage in Australia were introduced in the 43rd Parliament. The Joint Parliamentary Inquiry into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012 received 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.[35]

On 19 September 2012, the House of Representatives voted against passing its same-sex marriage bill by a margin of 98-42 votes.[36] On 21 September 2012, the Senate also voted down its same-sex marriage legislation, by a vote of 41-26.[37] In both instances, the Liberal/National Coalition honoured their 2010 election commitment to vote as a bloc against any same-sex marriage legislation.

In March 2013 former Labor prime minister Kevin Rudd announced his personal support of same-sex marriage.[38] Upon returning to the prime ministership in June, Rudd promised same-sex marriage legislation in the following Parliament if Labor won the 2013 federal election.[39]

44th Parliament (2013—present)
In September 2013 the Tony Abbott-led Liberal/National Coalition comfortably won government at the federal election. Though most Coalition MPs and senators (and Abbott himself) were opposed to same-sex marriage, Abbott stated at the time that the party may consider altering its position to be in favour of a free vote on the matter.[40][41] By December 2013, deputy Labor Opposition Leader, Tanya Plibersek, announced that she would introduce a private member's bill in the Parliament, seeking the assistance and co-sponsorship of Coalition government minister Malcolm Turnbull and a free vote among all parliamentarians.[42]

In November 2014, Liberal Democratic Party senator David Leyonhjelm reintroduced the Freedom to Marry Bill 2014 in the Senate, though by March 2015 Leyonhjelm had deferred the imminent second reading of his bill due to the refusal of the Coalition party room to debate a free vote on the legislation.[43][44]

In May 2015, renewed debate on the issue followed the 2015 Irish constitutional referendum that established marriage equality in Ireland, with several Coalition MP's publicly voicing their support for a free vote on same-sex marriage legislation[45][46][47] and Labor MP Anthony Albanese stating that (contingent on a Liberal Party free vote occurring) "it is my judgment that there are now majorities in favour of marriage equality in both the House of Representatives and the Senate".[48]

Capitalising on the renewed momentum, Labor leader Bill Shorten introduced the Marriage Amendment (Marriage Equality) Bill 2015 to the Parliament on 1 June 2015.[49] Despite several Coalition MP's criticising Shorten for political opportunism,[50] Prime Minister Tony Abbott promised a "very full, frank and candid and decent" debate inside the Liberal Party and also appeared to rule out a referendum on same-sex marriage.[51] Further momentum for same-sex marriage occurred following the U.S. Supreme Court's ruling in Obergefell v. Hodges[52] and in July 2015 details of a cross-party same-sex marriage bill to be introduced to the Parliament later in the year were revealed.[53][54][55]

Also in July 2015, at the Labor Party National Conference, the party passed a platform amendment allowing the continuation of a free vote on same-sex marriage legislation for Labor MP's for the existing parliamentary term and the next. This means that following what is likely to be the 2019 federal election, Labor MPs will be bound by party policy to support same-sex marriage legislation.[56]

On 11 August 2015, Prime Minister Abbott, in response to the cross-party bill to legalise same-sex marriage being introduced to the parliament, called a special joint party room meeting of the Liberal and National parties. The six hour meeting resulted in 66 Coalition MP's voting against a free vote being held on same-sex marriage legislation and 33 voting in favour of a free vote.[57] Following the meeting, Mr Abbott announced that whilst the Coalition would maintain its position of marriage being defined as a heterosexual union for the duration of the existing parliamentary term, he stated it was his "strong disposition" to hold a national vote on same-sex marriage sometime after the 2016 federal election, either in the form of a plebiscite or constitutional referendum.[58] Labor Party Opposition Leader Bill Shorten stated that his party opposed the idea of a national vote on the issue, arguing it was a delaying tactic and would waste public money. Shorten recommitted to introducing a bill to legalise same-sex marriage within 100 days of taking office if successful at the 2016 federal election.[59] On 17 August 2015, in defiance of Mr. Abbott, Liberal backbencher Warren Entsch introduced the aforementioned private members' bill, saying, "The main purpose of this bill is not a complex one. It is to give same-sex couples in Australia the same right to marry the person they love as that which is currently only granted by law to heterosexual couples. This bill is designed to promote an inclusive Australia, not a divided one. A divided nation is what we will be if we continue to allow discrimination in relation to marriage on the basis of a person's sexuality."[60]

On 14 September 2015, Communications Minister Malcolm Turnbull, a prominent supporter of same-sex marriage, successfully challenged Prime Minister Abbott for leadership of the Liberal Party, becoming the 29th Prime Minister of Australia. Same-sex marriage lobby groups subsequently began pressuring Prime Minister Turnbull to allow a free vote on Mr Entsch's private members bill or at least bring forward the proposed national plebiscite to the next election or earlier.[61] Mr Turnbull subsequently stated in Question Time that the policy to have a plebiscite on the issue after the next election would be retained by the Coalition.[18]

Resolving the way forward for same-sex marriage has caused tensions within the current government[62][63] with the Assistant Minister for Multicultural Affairs and Social Services Concetta Fierravanti-Wells saying "A Coalition policy that directly supports same-sex marriage could place under threat some of our most marginal seats which have disproportionately high religious and migrant communities".[64] Others, such as Liberal senator Dean Smith have questioned the precedent a public vote on same-sex marriage could have.[65] In January 2016 at least two Liberal MP's (Cory Bernardi and Eric Abetz) stated they would be unlikely to vote in favour of same-sex marriage in parliament even if the proposed plebiscite returned a majority yes result.[66]

Senate and Joint committee reports of the 44th Parliament have been sharply divided on the question of same-sex marriage. A majority of the Senate Legal and Constitutional Affairs Reference Committee recommended against the holding of a national plebiscite or referendum, on the basis that a public vote would be unnecessarily expensive and pose a psychological risk to children and other vulnerable groups in the LGBT community.[67][68] However the same report featured a dissenting opinion of Coalition senators, authored by Senator Ian Macdonald, who strongly advocated for a compulsory national plebiscite be held on the question of amending the Marriage Act.[68]

Likewise the Parliamentary Joint Committee on Human Rights divided on the question of same-sex marriage. Whilst the majority report of the committee upheld same-sex marriage legislation as in accordance with international human rights laws and principles, a dissenting opinion, again of exclusively Coalition senators, criticised the committee for "erroneous" findings and contended that international human rights law did not preclude states from defining marriage as between only a man and a woman and further, that same-sex marriage legislation as envisioned by the committee would violate the religious freedoms of civil celebrants and service providers and that finally, same-sex marriage legislation would "limit the rights of the child".[69] The Coalition senators were subsequently labelled "bigots scraping the bottom of the barrel" by Greens MP Adam Bandt.[70]

On 12 November 2015 Greens Senator Janet Rice introduced another same-sex marriage bill in the 44th Parliament, though debate on the bill was promptly adjourned.[71]

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

The Australian House of Representatives contains 150 seats. The only parliamentary vote to be held on same-sex marriage so far occurred in September 2012, when the House of Representatives rejected a bill introduced by Labor MP Stephen Jones aimed at legalising same-sex marriage by 98 votes to 42. The Senate subsequently voted against a bill to legalise same-sex marriage by 41 votes to 26. In both instances the governing Labor Party allowed MP's a conscience vote whilst the opposition Liberal/National Coalition voted as a bloc against the legislation.[72][73]

Both the current Prime Minister and Opposition Leader (Malcolm Turnbull and Bill Shorten respectively), as well as their deputy party leaders (Julie Bishop and Tanya Plibersek) support same-sex marriage.[74][75]

In January 2016, same-sex marriage advocacy group Australian Marriage Equality announced that majorities in both the House of Representatives and the Senate existed for same-sex marriage legislation to pass, when the assurances of MP's who had not publicly revealed their support were taken into account. The policy of the current government remains to put the issue to a plebiscite in the following parliamentary term.[76]

House of Representatives[edit]

MPs who have publicly declared their support of same-sex marriage:[72][77][78][79][80]

71 / 150 (47%)
Member Party Electorate State/Territory
Anthony Albanese[72] Labor Grayndler NSW
Adam Bandt[72] Greens Melbourne VIC
Sharon Bird[72] Labor Cunningham NSW
Julie Bishop*[81] Liberal Curtin WA
Chris Bowen*[82] Labor Prospect NSW
Mal Brough[77][83] Liberal Fisher QLD
Gai Brodtmann[72] Labor Canberra ACT
Anna Burke*[84] Labor Chisholm VIC
Tony Burke*[85] Labor Watson NSW
Mark Butler[72] Labor Port Adelaide SA
Terri Butler[86] Labor Griffith QLD
Jim Chalmers[87] Labor Rankin QLD
Nick Champion[72] Labor Wakefield SA
Darren Chester*[88] National Gippsland VIC
Lisa Chesters[89] Labor Bendigo VIC
Jason Clare[72] Labor Blaxland NSW
Sharon Claydon[90] Labor Newcastle NSW
David Coleman[91] Liberal Banks NSW
Julie Collins[72] Labor Franklin TAS
Pat Conroy[92] Labor Charlton NSW
Michael Danby*[93] Labor Melbourne Ports VIC
Mark Dreyfus[72] Labor Isaacs VIC
Justine Elliot[72] Labor Richmond NSW
Kate Ellis[72] Labor Adelaide SA
Warren Entsch*[94] Liberal National Leichardt QLD
David Feeney[77][95] Labor Batman VIC
Laurie Ferguson*[96] Labor Werriwa NSW
Joel Fitzgibbon*[97] Labor Hunter NSW
Josh Frydenberg*[98] Liberal Kooyong VIC
Teresa Gambaro*[99] Liberal National Brisbane QLD
Gary Gray[72] Labor Brand WA
Alan Griffin[72] Labor Bruce VIC
Natasha Griggs*[100] Country Liberal Solomon NT
Andrew Giles[77][79][101] Labor Scullin VIC
Jill Hall[72] Labor Shortland NSW
Sarah Henderson[102] Liberal Corangamite VIC
Kevin Hogan[103] National Page NSW
Greg Hunt*[104] Liberal Flinders VIC
Ed Husic*[105] Labor Chifley NSW
Ewen Jones*[106] Liberal National Herbert QLD
Stephen Jones[72] Labor Throsby NSW
Catherine King[72] Labor Ballarat VIC
Andrew Leigh*[107] Labor Fraser ACT
Jenny Macklin[72] Labor Jagajaga VIC
Alannah MacTiernan[77][79][108] Labor Perth WA
Richard Marles[72] Labor Corio VIC
Cathy McGowan[109] Independent Indi VIC
Rob Mitchell[77][79][110] Labor McEwen VIC
Shayne Neumann*[111] Labor Blair QLD
Brendan O'Connor[77][79][112] Labor Gorton VIC
Kelly O'Dwyer*[113] Liberal Higgins VIC
Clare O'Neil[77][79][114] Labor Hotham VIC
Julie Owens*[115] Labor Parramatta NSW
Melissa Parke[72] Labor Fremantle WA
Graham Perrett[72] Labor Moreton QLD
Tanya Plibersek[72] Labor Sydney NSW
Christopher Pyne[77][79][116] Liberal Sturt SA
Bernie Ripoll[77][79][117] Labor Oxley QLD
Amanda Rishworth[72] Labor Kingston SA
Wyatt Roy*[118] Liberal National Longman QLD
Joanne Ryan[77][78][79] Labor Lalor VIC
Bill Shorten[72] Labor Maribyrnong VIC
Warren Snowdon[72] Labor Lingiari NT
Wayne Swan*[119] Labor Lilley QLD
Kelvin Thompson*[120] Labor Wills VIC
Matt Thistlethwaite[121] Labor Kingsford Smith NSW
Malcolm Turnbull*[77][122] Liberal Wentworth NSW
Tim Watts[123] Labor Gellibrand VIC
Andrew Wilkie[72] Independent Denison TAS
Jason Wood[124] Liberal La Trobe VIC
Trent Zimmerman[125] Liberal North Sydney NSW

* Has previously voted against same-sex marriage

Senate[edit]

Senators who have publicly declared their support of same-sex marriage:[79][80][126]

38 / 76 (50%)
Senator Party State/Territory
Simon Birmingham*[127] Liberal SA
Carol Brown[126] Labor TAS
Doug Cameron[126] Labor NSW
Kim Carr[126] Labor VIC
Sam Dastyari[128][129][130] Labor NSW
Richard Di Natale[126] Greens VIC
Katy Gallagher[131] Labor ACT
Sarah Hanson-Young[126] Greens SA
Glenn Lazarus[132] Independent QLD
David Leyonhjelm[133] Liberal Democratic NSW
Sue Lines[79][134][135][136] Labor WA
Scott Ludlam[126] Greens WA
Joe Ludwig[137] Labor QLD
Gavin Marshall[126] Labor VIC
Jenny McAllister[138][139] Labor NSW
Anne McEwen[126] Labor SA
Nick McKim[140] Greens TAS
Jan McLucas[126] Labor QLD
Claire Moore[126] Labor QLD
Ricky Muir[141] Motoring Enthusiast VIC
Marise Payne[128] Liberal NSW
Nova Peris[142][143][144] Labor NT
Linda Reynolds[80][145][146] Liberal WA
Lee Rhiannon[126] Greens NSW
Janet Rice[147] Greens VIC
Nigel Scullion*[148] Country Liberal NT
Rachel Siewert[126] Greens WA
Robert Simms[149] Greens SA
Lisa Singh[79][150] Labor TAS
Arthur Sinodinos[151] Liberal NSW
Dean Smith*[152] Liberal WA
Glenn Sterle*[153] Labor WA
Anne Urquhart[126] Labor TAS
Dio Wang[154] Palmer United WA
Larissa Waters[126] Greens QLD
Peter Whish-Wilson[126] Greens TAS
Penny Wong[126] Labor SA
Nick Xenophon[126] Independent SA

* Has previously voted against same-sex marriage

State and territory law[edit]

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, though Section 51 (xxi) of the Constitution of Australia prescribes that marriage is a legislative power of the federal parliament.[155]

In December 2013, the High Court of Australia ruled, in relation to a territory-based same-sex marriage law of the Australian Capital Territory (ACT), that the federal Marriage Act, which defined marriage as the union of a man and woman, precluded states and territories from legislating for same-sex marriage.[156] As a result, only the federal parliament can legislate for same-sex marriage, whilst states and territories almost certainly cannot.

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.[1] 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".[156] 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"[157] and that no current arguments "present an absolute impediment to achieving state-based or Commonwealth marriage equality".[158] With respect to territories, the ACT Government obtained legal advice that its bill seeking to legalise same-sex marriage could run concurrently with the federal Government's statutory ban on same-sex marriage.[159] 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[160] whilst other sources have rated the ACT's law as 'doubtful' or impossible to pass judicial scrutiny.[161][162] 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.[163][164]

New South Wales amended its law in November 2014 to allow overseas same-sex marriages to be recognised on the state's relationship register.[165][166][167]

As of December 2015, four Australian states (Tasmania, New South Wales, Queensland and Victoria), comprising 80% of Australia's population, recognise same-sex marriages and civil partnerships performed overseas, providing automatic recognition of such unions in their respective state registers.[168]

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

Same-sex couples have access to different relationship recognition schemes in Australia's eight states and territories. Under federal law, these relationships are treated as de facto unions. Unless the states and territories legislated otherwise, these schemes would remain in place as an option for same-sex couples in the event Australia passed a federal marriage equality law.

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.[169] 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.[170] 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.[171]

Civil partnerships[edit]

In Queensland, in December 2002, the states' Discrimination Law Amendment Act 2002 created a new and non-discriminatory definition of "de facto partner", affecting 42 pieces of legislation.[172] This gave same-sex couples the same rights as de facto couples in most instances. Queensland law does not include access to adoption for same-sex couples.

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 four votes from the Australian Labor Party.[173] 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".[174] The new law changed the name from "civil partnership" to "registered relationship" and prohibited the state from offering ceremonies for those who do register their relationship in this manner. Following the 2015 state election, which saw Labor form minority government, the Parliament passed (in December 2015) the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015, which restored state-sanctioned ceremonies for same-sex and opposite-sex couples and once more changed regulations referring to "registered relationships" with "civil partnerships".[175] The law is to come into effect once a number of administrative matters occur, which is likely to be early to mid 2016.[175]

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 state parliament passed the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008[176] 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.[177] 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.[178][179]

In November 2013 a bill was introduced into the NSW Upper House to legalise same-sex marriage. The bill was defeated.[180][181]

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.[182][183][184] Local city registries have since been superseded by the state's Domestic Partnership Register which was enacted in December 2008.[185] Both city registers remain active.

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. South Australia legislation does not allow equality for same-sex couples in three areas, such as access to adoption, 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)[186] and the Statutes Amendment (Equal Superannuation Entitlements for Same Sex Couples) Act 2003 (No 13)[187][188][189][190][191][192]

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.[193][194][195][196][197][198][199]

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.[200]

In February 2012 a bill was tabled in the South Australian Legislative Council to legalise same-sex marriage.[201] In July 2013 a same-sex marriage bill was introduced into the South Australian House of Assembly. The bill was defeated.[202][203]

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.[204][205] 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.[206]

In August 2012, a bill was introduced into the Tasmanian Parliament to legalise same-sex marriage. The bill was defeated.[207][208] In October 2013 a bill was re-introduced into the Tasmanian Upper House to legalise same-sex marriage. The bill was defeated.[209]

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.[210] 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 September 2014, a draft bill was tabled in the Norfolk Island Parliament, legalising same-sex marriage. The bill's supporters contend that while it could be challenged in the High Court of Australia, everything possible to ensure the proposed law does not impinge on the Federal Marriage Act has been done. The High Court has previously ruled that the Australian Capital Territory's law legalising same-sex marriage did conflict with the federal definition of marriage and so rendered the law invalid. In May 2015, the Norfolk Island Act 1979 was altered to dissolve the island's legislature. Norfolk Island from 1 July 2016, will be incorporated into NSW legislation, under the Norfolk Island Legislation Amendment Bill 2015.[211][212]

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 (except the Adoption Act) 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.[213]

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.[214]

Constitutional and legal issues[edit]

Oceania
  Same-sex marriage
  Other type of partnership (or unregistered cohabitation)
  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.

Australian 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,[215] intending to incorporate the common law definition of marriage into the Marriage Act 1961 and the Family Law Act.[216] 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.[217]

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.[218]

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.[219]

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".[220][221] 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."[222]

Marriage Equality (Same Sex) Act 2013[edit]

On 13 September 2013, the Australian Capital Territory (ACT) Government announced that it would introduce a bill to legalise same-sex marriage, following a decade-long attempt to legislate in the area.[223] "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."[224] On 10 October 2013, federal Attorney-General George Brandis confirmed that the Commonwealth Government would challenge the proposed ACT bill, stating that the Coalition Government has significant constitutional concerns with respect to the bill.[225] The bill was debated in the ACT Legislative Assembly on 22 October 2013, and passed by 9 votes to 8.[226][227]

Under the legislation, same-sex marriages were legally permitted from 7 December 2013.[228][229][230]

As soon as the ACT act had been passed, the Commonwealth launched a challenge to it in the High Court, which delivered judgment on 12 December 2013.[231][232] As to the relation between the ACT act and federal legislation, the Court found that the ACT act was invalid and of "no effect", because it was "inconsistent", in terms of the Australian Capital Territory Self-Government Act 1988 (Cth), with the federal Marriage Act 1961 (Cth). It was inconsistent both because its definition of marriage conflicted with that in the federal act and because the federal act was exclusive, leaving no room for any other definition in legislation of a state or a territory. However, the Court went on to determine that the word "marriage" in Constitution 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. It can do so by amending the definition of "marriage" in the Marriage Act.

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.[233][234]

In June 2007, a Galaxy poll conducted for advocacy group GetUp! measured the opinions of 1,100 Australians aged 16 and over[235] 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.[236]

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.[237] 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.[237]

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.[238] 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.

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%.[239]

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 an "unnecessary" institution.[240]

A November 2011 Galaxy Research poll, commissioned by the Australian Marriage Equality group, 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%[241]

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.[242] 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.[243] The survey closed on 20 April, having received approximately 276,000 responses, including about 213,500 comments.[244] 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." [245]

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.[246] 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".[247] A 2015 Vote Compass survey with 20,000 respondents found 53% supported same-sex marriage, 10% neutral and 36% opposed. Support for same-sex marriage was higher among women, people with university degrees and higher incomes, and people under 34.[248]

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.[249] 57% of respondents said that same-sex marriage was "not important at all" in deciding how they would vote in the coming election.[20] Even for those supporting same-sex marriage 49% said that the issue was "not important at all" in deciding their vote.[249]

In June 2014, Crosby Textor Group[250] was commissioned by Australian Marriage Equality to poll the public on same-sex marriage. Their survey included the following questions on the common reasons for opposition:[251]

Reason Agree (%) Disagree (%)
People who choose to be gay know that their choice means they cannot get married 30% 58%
It is fine for same-sex couples to have a ceremony, but it should not be called ‘marriage’ 30% 63%
The recognition of de facto relationships and civil unions is enough; we don’t need same-sex marriage too 29% 63%
Children need both a mother and a father, and legalising same-sex marriage could break that down 29% 65%
The institution is already under threat and should not be further undermined by this 24% 67%
Marriage is only meant to be between a man and a woman, so this is wrong and should not be encouraged 24% 69%
Marriage is a religious institution and no changes should be made to it against the wishes of religious groups 23% 70%
Same-sex marriages could devalue traditional marriages 22% 73%
Allowing same-sex marriage will lead to some people losing their religious freedoms 16% 72%
Allowing same-sex marriage is a slippery slope and could lead to issues like polygamy 17% 74%

A July 2014 poll, commissioned by Australian Marriage Equality and conducted by the Crosby Textor Group 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.[252][253] Jim Reed, director of Research and Strategy at the Crosby Textor Group argued in an opinion piece that the poll represented a "seismic shift in public attitudes towards marriage equality."[254]

Also in July 2014 Newscorp's Newspoll recorded a high vote in favour of same-sex marriage, with two-thirds of respondents supporting marriage between same-sex couples.[255]

A June 2015 Fairfax/Ipsos poll found 68% of respondents expressed support to the question Do you support or oppose legalising marriage between same-sex couples? 25% answered that they were opposed and 7% answered 'Don't Know'.[256]

In July 2015, a Sexton research poll was undertaken to determine the most important issues the federal government should focus on. Survey respondents rated same-sex marriage as equal 13th as their prioritisation.[257] The Australian activist group GetUp! polls the views of its members (termed Vision Surveys) to provide guidance for its "top campaign issues". GetUp! members ranked 'Marriage Equality' as campaign issue No. 16, scoring 2.1% of the votes.[258] The Australian reports that recent research has placed doubts on the accuracy of earlier poll claims. The Australian also says there have been 5 Australian polls taken since May 2015 on 'support for same-sex marriage' with the respective results being 68%, 58%, 59%, 59% and 54%.[257]

A Sexton Research survey, commissioned by Marriage Alliance (a group which does not support same-sex marriage) was undertaken in July 2015. The Sexton research has queried the findings of the above June 2014, Crosby Textor Group poll.[257] It was also reported that same-sex marriage was ranked in national importance, by participants, in the Crosby Textor study as 13th priority.[257] Same-sex marriage was rated as 16th in a GetUp! members survey.[258]

In August 2015 Fairfax/Ipsos found SSM support constant at 69% with 25% opposed, although support was much higher among under-25s (88%) than over-55s (55%).[259]

A community survey by Essential Media Communications[260] showed support for same-sex marriage at 60% and support for a parliamentary vote at 22%, with support for a people's vote at 66%[261] and in a Sexton survey of 1,200 people, support for a people's vote was 76%.[262]

In September 2015, an Essential Media Communications poll found 67% of Australians wanted a peoples’ vote (i.e.: referendum or plebiscite) to resolve the definition of marriage, with "little change since this question was asked in August".[263] However, in October 2015, another Essential poll found that support for a people's vote on the issue fell to 43% when informed that "a national vote on same-sex marriage would cost around $150 million". 41% favoured a parliamentary vote.[264] The same poll also found that 59% of respondents thought that "same-sex couples should be allowed to marry", 30% of respondents thought that "same-sex couples should not be allowed to marry", whilst 11% answered "do not know".[264]

Views of public and corporate figures[edit]

In May 2015, Radio broadcaster Alan Jones commented on the push to legalise same-sex marriage saying, "my view is that when people find love they should be able to celebrate it. And they shouldn't be discriminated against according to the nature of that love. To deny people the recognition for a relationship which is based on love is to deny in my opinion one of humankind's most basic, but as I said elusive, qualities. Let the Parliament vote. It makes the laws of the land... we shouldn't be frightened about celebrating the love of one person for another."[265] Prime Minister Abbott said "I deeply respect his views and I’m confident that he would respect mine, he would respect my sister’s, he would respect Bill Shorten’s and Tanya Plibersek’s and Warren Entsch’s, and that’s what we need – we need to see mutual respect of all the different views on this debate because as I said, decent people can differ on this subject."[266][copyright violation?]

Also in May 2015, a number of large companies took out a full page ad in the Australian declaring support for marriage equality, including Westpac, St.George, ANZ, the Commonwealth Bank, BT Financial, Bankwest, Telstra, Optus, Qantas, KPMG, PricewaterhouseCoopers, Foxtel and Google.[267] With the SBS logo featuring in that full-page newspaper advertisement, a Senate Committee hearing asked why does SBS as a public broadcaster, involve themselves in this political campaign. Managing Director Michael Ebeid, defended SBS saying he did not believe, "same-sex marriage is a political issue" and that "we are an organisation that does everything we can to support equality".[268] Politicians also noted that SBS had pulled an anti-marriage equality ad ahead of its telecast of the Sydney Gay and Lesbian Mardi Gras.[269] The AFL and NRL have both officially declared support for same-sex marriage.[270]

In August 2015, former prime minister Julia Gillard, in office from 2010–13, announced a personal reversal of opinion on same-sex marriage, now in favour of it. Ms Gillard also criticised the proposal for a plebiscite or referendum.[271]

In July 2015, Senators Penny Wong and Cory Bernardi debated same-sex marriage at the National Press Club, using most of the common arguments for and against same-sex marriage.[2][272][273] Wong referred to Obergefell v. Hodges and the Irish referendum, and argued that the children of LGBT parents in Australia would benefit from their parents being able to marry. Wong said she would not support multi-member relationships. Bernardi argued that religious liberty, freedom of expression and children's rights would be curtailed if same-sex marriage was enacted.

Former ABC Director and Chairman, Maurice Newman commented in September 2015 on the merits of a plebiscite; "people of various faiths have been taught throughout history that marriage is between a man and a woman. Now these beliefs are pushed by the media as hateful and backward, and those who hold them are bigots. Who knew? There’s a lot of unlearning to be done . . . Surely from time to time, on matters of deep social significance, there is much to be said for a plebiscite. A popular mandate will provide an endorsement that parliaments can’t provide".[274]

In October 2015, Simon Copland wrote in the LGBT magazine Star Observer: "After years of failure ... I suspect we may not see marriage equality for a long time yet."[275]

Local government[edit]

As of 28 October 2015, of the 565 Local Governments (also known as "councils" or "shires") a total of 35 have passed formal motions in support for federal legalisation of same-sex marriage. Most of the 35 are urban councils.

35 / 565 (6%)

Those local governments are:[276]

No other local governments are currently considering motions to support same-sex marriage.

At least one local government has previously rejected motion(s) to support same-sex marriage:

General note
Australian local government authorities are categorised by type. The categories are: Boroughs 1, Cities 129, Councils 51, District councils 35, Municipalities 9, Regional councils 36, Rural cities 7, Shires 255, Towns 17, Community government councils 2, Aboriginal shires 12, Island councils 1, Unincorporated 18, totalling 565 local government authorities.

Community debate[edit]

Some Australian Aboriginal communities support retaining the existing definition of marriage[282] while others support same-sex marriage.[283]

An Australian National University election survey conducted in June 2015 showed that 41 to 45% of Catholic, Anglican, Uniting Church or Presbyterian, voters support same-sex marriage.[284] The same survey showed that same-sex marriage was supported by 15% of Muslim voters.[285][286] The federal electorate of Reid has a large Muslim population, "implacably opposed to marriage being redefined and same-sex marriage made legal."[287] Australian Islamists are also strongly opposed.[288] The Australian Federation of Islamic Councils does not support same-sex marriage.[289] Of notable Australian Muslims, Ed Husic supports same-sex marriage,[290] Waleed Aly is said to support same-sex marriage[291] and Keysar Trad does not support same-sex marriage.[292]

In December 2013, Australian Marriage Equality (AME) criticised the tactics of the Australian marriage-equality lobby-group Equal Love as "counterproductive and unrepresentative" to the movement.[293][294] A committee member for Equal Love said that AME had launched an "unsubtle attack" and defended their tactics, stating "a visual display of community outrage over the issue emboldens those who want change"[295] There has also been differences in campigning-strategies between AME and Community Action Against Homophobia in their respective lobbying tactics for marriage equality.[296]

LGBT parenting[edit]

Adoption

Adoption is currently restricted in Queensland, South Australia and Northern Territory to couples of the opposite sex. Debate regarding religious exemptions for faith-based adoption agencies reignited during Victoria's legalisation of same-sex adoption in December 2015.[297] Both New South Wales and Victoria include such exemptions in their adoption laws.

Assisted reproduction

With altruistic surrogacy being restricted in South Australia and Western Australia to couples of the opposite sex there is an inequality for gay couples wanting children.[298] With the reducing opportunities for overseas commercial surrogacy, altruistic surrogacy is used by both gay couples[299][300][301] and by lesbian couples,[302] as a means of having children. In Australia, the TV drama House Husbands which brings, "the idea of gay relationships, gay marriage and surrogacy, to the forefront" has used altruistic surrogacy for a gay couple as a storyline.[303][304] Debate is continuing into commercial surrogacy in Australia to help gay men start a family in a safe and regulated industry.[305][306] Ethical issues associated with same-sex surrogacy, including the linkage between the child and its biological parent, are being discussed and debated.[307][308][309]

Children

Various international studies have been carried out on LGBT parenting, and organisations including the Australian Institute of Family Studies have commissioned systematic reviews to assess the methodology of individual studies, and evaluate the conclusions of each of the (child-focussed) studies. Such studies have found that "research to date considerably challenges the point of view that same-sex parented families are harmful to children. Children in such families do as well emotionally, socially and educationally as their peers from heterosexual couple families."[310][311][312] Maya Newell produced the documentary Gayby Baby, looking at children in same-sex relationships,[313][314] with the film marketed as "stirring" political debate on same-sex marriage.[315]

Former Victorian Premier Jeff Kennett has said, "happy heterosexual marriages are the best environment for the mental health of children". He said his position was supported by a recent report entitled, For Kids' Sake, authored by Professor Patrick Parkinson.[316] However, after a funding threat to his mental-health charity beyondblue,[317][318] his views reversed.[319]

Free expression and religious liberty issues[edit]

Queensland GP David van Gend has said on the Australian Marriage Forum website that same-sex parenting will create a stolen generation.[320][321][322] Julia Gillard has sought legal advice for van Gend using her remarks about forced adoption in political advertising in April[323] and again in August 2015.[324][325] TV channels that ran his ads, in March 2015, during the Sydney Mardi Gras were widely criticised on social media,[326][327] and the Advertising Standards Bureau received "a large number of complaints" but cannot adjudicate over political advertising.[328][329]

Following another TV advertisement screened in August 2015 by van Gend's organisation, Foxtel were "bombarded" with threats of subscription cancellations from customers,[330][331] and multiple radio and TV networks declined ads from van Gend, with NOVA Entertainment saying the ads don't fit with their youthful brand.[331] The Australian Communications and Media Authority subsequently found that the advertisement was not in breach of the television codes of practice.[332][333]

An August 2015 episode of Media Watch argued that "both sides of the debate have an equal right to be heard".[331] In relation to attempts to suppress the second TV advertisement mentioned above, host Paul Barry said, "Whatever happened to freedom of speech? And was the ad really so offensive? . . . All pretty mild, surely? . . . The ad in fact makes hardly any claims at all and in my opinion to say it’s inviting hate is ridiculous".[331]

In many Australian public schools, discussion of controversial issues must be for educational purposes only.[334] The Safe Schools Coalition is a taxpayer funded initiative that is marketed as reducing bullying of LGBT students in schools, and while they have been told by government to "stay silent" on same-sex marriage[335] they encourage students to express their support for same-sex marriage in school assignments and at political rallies,[336] and to organise guest speakers talking on subjects such as, "why we support equal marriage."[337]

In 2015 Tasmanian Archbishop Julius Porteous distributed a booklet outlining the Catholic Church's position on marriage, titled "Don't mess with Marriage".[338] It encouraged parents to lobby parliamentarians against same-sex marriage. An application was made by a Hobart transgender activist and Greens candidate to Tasmania’s Anti-Discrimination Commission over the booklet.[339][340] John Roskam, writing in the Australian Financial Review has said, "A vote in a plebiscite or referendum, in which one side is not allowed to present its case, is not a legitimate vote. That's why both supporters and opponents of same-sex marriage should be concerned by the complaint against Archbishop Porteous and the Catholic Church. Freedom of speech is fundamental to liberal democracy. Freedom of speech confers legitimacy on political outcomes".[341] The Anti-Discrimination Commission subsequently upheld the complaint.[342] Senator Eric Abetz said that the church’s right to "teach its flock" its beliefs on marriage were being "shut down".[343] Janet Albrechtsen, writing in The Australian says, "This is not one of those thorny cases of conflicting rights where you have to come down on one side or another. It’s not a case of either supporting same-sex marriage or supporting free speech. Here you have the luxury of both. This is not about defending the Catholic bishops. The real issue is the emergence of yet another orthodoxy that is strangling free speech".[344]

Christian organisations have said that non-discrimination laws should not be allowed to limit freedom of religion, and have argued for new laws to enshrine a right to discriminate against same-sex couples.[345][346] ACT Attorney-General, Simon Corbell has said, in the ACT, it will be, "unlawful for those who provide goods, services and facilities in the wedding industry to discriminate against another person on the basis of their sexuality or their relationship status. This includes discrimination by refusing to provide or make available those goods, services or facilities."[347] Tim Wilson has argued that religious anti-discrimination exemptions should be included in same-sex marriage laws.[345][348] Others though, such as Australian lawyer and associate director and research fellow in the Public Interest Law Centre at New York University School of Law, David Glasgow, have argued that the core of this religious freedom campaign is simply desiring "the liberty to refuse service" to particular customers. Glasgow contends that Australian anti-discrimination law includes sexual orientation and gender identity as protected attributes akin to race or religion "because we recognise that those attributes should not impede a person's participation in civic life" and that "the law insists, rightly, that to reap the benefits of opening a business to the public, the business must be open on equal terms."[349] Some are concerned that allowing religious business owners and service providers to right to refuse to provide services related to same-sex weddings/ceremonies (i.e.: wedding cakes and/or flowers) might lead to further exemptions not related to same-sex marriages but rather anything to do with homosexuality.[349] Others have lamented the fact that, increasingly, much of the religious-based opposition to same-sex marriage has lost touch with the secular reality governing Australian laws and legal principles.[350]

Opponents of same-sex marriage say they have faced attempts to limit freedom of speech. Joe de Bruyn has argued against Labor using a binding vote on the issue.[351] David van Gend's business was graffitied, which included the word "bigot".[352] A university student union called for the cancellation of a lecture, the subject of which was "assumed" to include opposition to marriage equality.[353] At another university when it hosted "an evening with 'Traditional Marriage Champion' Dr. Ryan Anderson PhD" the student union leader said, "because we're a publicly funded university, we have a responsibility to be politically correct and this is not politically correct".[354] The online 'star ratings' and reviews of an international hotel were targeted,[355] however that campaign rebounded.[356] Wendy Francis has said she received "abusive phone calls and emails" in 2012.[357] Lyle Shelton says that he dislikes Bernard Keane calling him a "nauseating piece of filth" on Twitter,[358] and that criticism of a Q&A guest amounts to "vicious attacks".[359] Other issues have included threatening legal action,[339][360] refusing advertisements.[361] Roman Catholic bishop Anthony Fisher and columnist Paul Kelly have claimed that if same-sex marriage becomes law, there would be concern for future freedom of speech.[362][363]

Transgender and intersex issues[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.[364] Marriage equality advocates have noted that where same-sex marriage legislation is unclear on the rights of transgender or intersex people (such as in NSW in 2013),[365] they have asked to ensure that any such legislation delivers marriage equality for all Australians.[366] with intersex people being skeptical of the term same-sex marriage.[367] The concurrent requirement, same-sex divorce law, is being discussed. Transgender divorce represents one challenge.[368]

The 2015 winner of Australia's GLBTI Person of the Year, transgender advocate, Sally Goldner supports marriage equality, as "we're supposed to be about equality and equity" but says marriage equality has become a "bottleneck" that has prevented the airing of other LGBTI issues such as more recognition of "diversity within diversity."[369]

See also[edit]

External links[edit]

References[edit]

  1. ^ a b "Marriage Amendment Act 2004". comlaw.gov.au. 
  2. ^ a b "Cory Bernardi and Penny Wong debate same-sex marriage at National Press Club". NewsComAu. 
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