Recognition of same-sex unions in Australia
|Legal status of same-sex unions|
* Not yet in effect
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.
Since then a number of amendments to the Marriage Act have been proposed, in both federal and state parliaments, seeking to formalise and recogonise same-sex marriages, all of which 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 Malcolm Turnbull-led Coalition Government is to conduct a national plebiscite on the issue sometime after the 2016 federal election.
- 1 Federal law
- 2 State and territory law
- 3 Constitutional and legal issues
- 4 Australian marriage legislation
- 5 Public opinion
- 6 Community debate
- 7 See also
- 8 References
De facto unions
Following the Australian Human Rights Commission's 2007 report Same-Sex: Same Entitlements 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. 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:
- Health Insurance
- Social Security
- Aged care and child support
- 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, 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. 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
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.
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'.
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"  were things same-sex couples were effectively barred from utilising under the former system.
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." Section 88EA of the Act also stipulates that any foreign marriages of same-sex couples "must not be recognised as a marriage in Australia".
Same-sex marriage attempts in federal parliament
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.
In August 2009, a same-sex marriage bill was introduced by the Australian Greens in the Senate. The bill was reviewed by the Senate Legal and Constitutional Affairs Committee whilst the largest protests for same-sex marriage in the nation's history took place in eight cities on 1 August, with an estimated 8,000 people attending. The Committee elects not to vote on the bill.
On 25 February 2010, the Marriage Equality Bill 2009 was rejected by the Senate on a vote of 45-5, with only the Greens voting in favour and many senators not in attendance. The Greens subsequently announced their intention to reintroduce a bill to legalise same-sex marriage after the 2010 federal election. In that election campaign in August 2010, Prime Minister Julia Gillard announced her government's opposition to same-sex marriage legalisation in an interview with the head of the Australian Christian Lobby.
Despite narrowly retaining government, the Labor Party were quickly forced into an internal argument on the issue. At the December 2011 National Conference, Labor overwhelmingly endorsesd a change to the party platform to be 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.
In February 2012, two bills to allow same-sex marriage in Australia were introduced in the 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.
On 19 September 2012, the House of Representatives voted against passing its same-sex marriage bill by a margin of 98-42 votes. On 21 September 2012, the Senate also voted down its same-sex marriage legislation, by a vote of 41-26. 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. Upon returning to the prime ministership in June, Rudd promised same-sex marriage legislation in the Parliament if Labor won the 2013 federal election. 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) are 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. By December 2013, deputy Labor Opposition Leader, Tanya Plibersek, announced that 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 free vote among all parliamentarians.
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.
In May 2015, renewed debate on the issue followed the 2015 Irish constitutional referendum that established marriage equality in Ireland. A report in Fairfax Media stated that if the Coalition gives their members a free vote, then the senate may carry a motion by one, and the lower house needed two extra supporters. Some MPs and Senators who would vote for the bill have not publicised their voting intention. In the wake of the result in Ireland, several Liberal Party MP's publicly voiced their support for a 'free vote' on same-sex marriage legislation. Labor frontbencher Anthony Albanese stated that, in his estimation (and 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".
Greens senator Sarah Hanson-Young nominated November 12, the second-last sitting week of the parliamentary year for a vote on her private member's bill. While Hanson-Young and David Leyonhjelm had private member's bills in the upper house, Labor leader Bill Shorten introduced a private member's bill to legalise same-sex marriage to the Parliament on June 1. On May 29, details of the bill, known as the Marriage Amendment (Marriage Equality) Bill 2015, were released, with the words "man and woman" in the Marriage Act to be replaced by "two people", whilst Section 88EA of the Act would be repealed entirely so as to enable same-sex couples already married overseas to be recognised as married in Australia. Some MP's have responded by arguing that a different bill, introduced by multiple politicians from the Labor and Liberal parties would be more appropriate. Prime Minister Tony Abbott promised a "very full, frank and candid and decent" debate inside the Liberal Party.
In July 2015, Sky News Australia reported that a cross-party same sex marriage bill would be introduced when federal parliament resumed on August 11. Liberal MPs Warren Entsch and Teresa Gambaro announced their intention to sponsor the bill alongside Labor MPs Terri Butler and Laurie Ferguson, independents Andrew Wilkie and Cathy McGowan and Greens MP Adam Bandt.
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 MP's will be bound by party policy to support same-sex marriage legislation.
On 12 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. 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 party 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. 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.
On 12 August 2015, Prime Minister Abbott said that his party would go to the next election with a commitment to put to the people, either a plebiscite or constitutional referendum, on same-sex marriage. Opposition Leader Bill Shorten said his party opposed a national vote and he recommitted to introduce a bill to legalise same-sex marriage soon after taking office. A subsequent community survey by Essential Media Communications 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% and in a Sexton survey of 1,200 people, support for a people's vote was 76%.
For the major lobby groups, the Australian Christian Lobby supports a vote by the people for same-sex marriage, while Australian Marriage Equality has, "criticised Mr Abbott for pursuing a peoples' vote" instead of allowing a free vote in the parliamentary Liberal Party.
On August 17, 2015, in defiance of Prime Minister Abbott, Entsch introduced a private members' bill to legalize same-sex marriage in Australia, 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."
On September 14, 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. 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.
In September 2015, the Australian Electoral Commission revealed modelling predicting a national, standalone plebiscite on same-sex marriage would cost the taxpayers $158.4 million. In the event of such a national vote being held in conjunction with a federal election, the AEC estimated an additional $44 million would be required, on top of normal election expenditure of approximately $139 million. At the same time, Liberal Party backbencher and prominent same-sex marriage supporter, Warren Entsch, publicly stated that he had received a personal assurance from Prime Minister Abbott that a Coalition Government would commit to legislating the result of a national plebiscite, if indeed one is held.
In September 2015, former ABC Director and Chairman, Maurice Newman commented on the proposal to hold a plebiscite saying, "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".
- Senate committee report
On 17 September 2015, the Senate Legal and Constitutional Affairs Reference Committee majority report recommended against the holding of a national plebiscite or referendum, warning that a public vote would be unnecessarily expensive and pose a psychological risk to children and other vulnerable groups in the LGBT community. The committee recommended that a bill to amend the Marriage Act to allow for marriage between two people regardless of their sex, be introduced to the parliament "as a matter of urgency", with all parliamentarians being allowed a conscience vote. A separate dissenting opinion of Coalition senators, authored by Senator Ian Macdonald, was also published in the report. That opinion recommend a compulsory national plebiscite be held on the question of amending the Marriage Act to allow for marriage between two people regardless of their sex. The committee also found that the AEC's costings expectation of $158.4 million being needed in order to conduct a stand-alone national plebiscite did not include potential Commonwealth funding for 'Yes' and 'No' campaigns.
Federal parliamentarians who publicly support same-sex marriage
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. However, Liberal frontbencher Kevin Andrews said: "(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."
In May 2015 some Labor MPs such as Chris Bowen and Julie Owens announced their newfound support of same-sex marriage, though they implied they might vote in favour of it in the Parliament only if the Labor Party retained its conscience vote on the matter rather than binding all MPs and Senators in favour of the reform.
In September 2015, for the first time in Australian history, both the Prime minister Malcolm Turnbull and the Opposition leader Bill Shorten, both support marriage equality in-principle. Malcolm Turnbull wants a "plebiscite vote" by the Australian people, while Bill Shorten wants a "conscience vote" within the Australian Parliament.
House of Representatives
|Mark Butler||Labor||Port Adelaide||SA|
|Michael Danby*||Labor||Melbourne Ports||VIC|
|Warren Entsch*||Liberal National||Leichardt||QLD|
|Teresa Gambaro*||Liberal National||Brisbane||QLD|
|Natasha Griggs*||Country Liberal||Solomon||NT|
|Ewen Jones*||Liberal National||Herbert||QLD|
|Wyatt Roy*||Liberal National||Longman||QLD|
|Matt Thistlethwaite||Labor||Kingsford Smith||NSW|
|Jason Wood||Liberal||La Trobe||VIC|
* Has previously voted against same-sex marriage
|Richard Di Natale||Greens||VIC|
|David Leyonhjelm||Liberal Democratic||NSW|
|Ricky Muir||Motoring Enthusiast||VIC|
|Nigel Scullion*||Country Liberal||NT|
|Dio Wang||Palmer United||WA|
* Has previously voted against same-sex marriage
State and territory law
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.
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. 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. 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". 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" and that no current arguments "present an absolute impediment to achieving state-based or Commonwealth marriage equality". 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. 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 whilst other sources have rated the ACT's law as 'doubtful' or impossible to pass judicial scrutiny. 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.
Existing state and territory same-sex union schemes
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.
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. 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. 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.
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 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. 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.
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. Local city registries have since been superseded by the state's Domestic Partnership Register which was enacted in December 2008. Both city registers remain active.
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. 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.
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. 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". 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. 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) and the Statutes Amendment (Equal Superannuation Entitlements for Same Sex Couples) Act 2003 (No 13)
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.
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.
In February 2012 a bill was tabled in the South Australian Legislative Council to legalise same-sex marriage. In July 2013 a same-sex marriage bill was introduced into the South Australian House of Assembly. The bill was defeated.
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. 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.
In August 2012, a bill was introduced into the Tasmanian Parliament to legalise same-sex marriage. The bill was defeated. In October 2013 a bill was re-introduced into the Tasmanian Upper House to legalise same-sex marriage. The bill was defeated.
States and territories with no official partnerships scheme
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. 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 island's legislature was dissolved.[clarification needed]
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.
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.
Constitutional and legal issues
Referral of power and recognition of married and de facto relationships
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
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
Marriage Amendment Act 2004
On 27 May 2004, the then federal Attorney-General Philip Ruddock introduced the Marriage Amendment Bill 2004, intending to incorporate the common law definition of marriage into the Marriage Act 1961 and the Family Law Act. 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.
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.
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". 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."
Marriage Equality (Same Sex) Act 2013
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. "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." 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. The bill was debated in the ACT Legislative Assembly on 22 October 2013, and passed by 9 votes to 8.
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. 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.
In June 2007, a Galaxy poll conducted for advocacy group GetUp! measured the opinions of 1,100 Australians aged 16 and over 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.
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. 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.
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. 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%. 
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.
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%
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. 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. The survey closed on 20 April, having received approximately 276,000 responses, including about 213,500 comments. 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." 
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. 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". 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.
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. 57% of respondents said that same-sex marriage was "not important at all" in deciding how they would vote in the coming election. Even for those supporting same-sex marriage 49% said that the issue was "not important at all" in deciding their vote.
In June 2014, Crosby Textor Group 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:
|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. 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."
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.
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'.
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. 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. 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%.
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. It was also reported that same-sex marriage was ranked in national importance, by participants, in the Crosby Textor study as 13th priority. Same-sex marriage was rated as 16th in a GetUp! members survey.
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%).
In September 2015, an Essential Media Communications poll found 67% of Australians wanted a peoples’ vote to resolve the definition of marriage, with "little change since this question was asked in August".
Views of public and corporate figures
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." 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."[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. The AFL and NRL have both officially declared support for same-sex marriage.
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.
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. 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. Bernardi argued that religious liberty, freedom of expression and children's rights would be curtailed if same-sex marriage was enacted.
Adoption is currently restricted in Victoria, Queensland, South Australia and Northern Territory to couples of the opposite sex. The Victorian government has drafted adoption legislation for same-sex parents which does not include any exemptions for faith-based adoption agencies. New South Wales adoption legislation grants these exemptions. The Leader of the Opposition, Matthew Guy has said he would not support any laws that penalise religious organisations.
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. With the reducing opportunities for overseas commercial surrogacy, altruistic surrogacy is used by both gay couples and by lesbian couples, 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. Debate is continuing into commercial surrogacy in Australia to help gay men start a family in a safe and regulated industry. Ethical issues associated with same-sex surrogacy, including the linkage between the child and its biological parent, are being discussed and debated.
- Parenting outcomes
Various international studies exist on the outcomes of 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 studies. Maya Newell produced the documentary Gayby Baby, looking at children in same-sex relationships, with the film marketed as "stirring" political debate on same-sex marriage.
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. However after a funding threat to his mental-health charity beyondblue, his views reversed.
Free expression and religious liberty
Queensland General Practitioner, Dr David van Gend has said that gay surrogacy will create a stolen generation and is said to have taken quotes of Julia Gillard (when she referred to the "sacred bond" between a mother and her baby) out of context. TV channels that ran his ads, in March 2015, during the Sydney Mardi Gras were widely criticised on social media, and the Advertising Standards Bureau received "a large number of complaints" but cannot adjudicate over political advertising.
Following another TV advertisement, screened in August 2015 by van Gend's organisation, Foxtel were "bombarded" with threats of subscription cancellations from customers, and multiple radio and TV networks declined ads from van Gend, with NOVA Entertainment saying the ads don't fit with their youthful brand. The Australian Communications and Media Authority subsequently found that the advertisement was not in breach of the television codes of practice.
An August 2015 episode of Media Watch argued that "both sides of the debate have an equal right to be heard". 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".
In an August 2015, ABC Q&A program a woman, who grew up with lesbian parents, expressed her support for traditional marriage. Senator Sam Dastyari said in response, "People are entitled to have different views on same sex marriage . . but I think this American evangelical claptrap is the last thing we need in the debate." Spiked Online editor Brendan O’Neill paraphrased Dastryari's response as, "You’re entitled to your view; just don’t express it," and charactered Dastyari's response as, "doublespeak".
Christian organisations have said that non-discrimination laws should not be allowed to limit freedom of religion. Concern about freedom of religion is frequently promoted in opposition to same-sex marriage.
Those opposing same-sex marriage say attempts have been made to limit freedom of speech. These actions have included, sending "abusive phone calls and emails", threatening businesses, demonisation, threatening legal action, implying financial redress, refusing advertisements, vandalising a business, protecting reputations, "vicious attacks" and preventing politicians voting according to their conscience. If same-sex marriage becomes law, there is concern for future freedom of speech.
Following an application to an Anti-Discrimination Commission against the Catholic Church for outlining its position on marriage, 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".
Australian Aboriginal views
Australian Christian views
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.
Christians, in advocating the retention of the existing Marriage Act, have said:
- that marriage has been defined as a heterosexual union "throughout history, transcending time, religions, cultures, and people" and that, "the modern state recognises and regulates marriage because of its importance to the good of society".
- that the institution of marriage involving a woman and a man for the purpose of having children is one of the bedrocks of Australian society and is common across cultures and has existed for generations. There are good reasons as to why it is so enduring.
- that up until now there have been too many, "slogans, emotional spin and almost unprecedented public bullying of opponents" and that, "we should resist being railroaded into this social change too quickly".
- that the word marriage isn’t a label that can transferred to various relationships, as it "has an intrinsic or natural meaning prior to anything we may invent or the state may legislate.
- that there are, "debates within gay communities" as to, "what sort of marriages do homosexual people want?"
However other Christians quote both the Old and New Testament of the Bible in support for same-sex marriage. They also cite opinion polling saying "Christian Australia is more than ready for this change".
Australian Muslim views
An Australian National University election survey conducted in June 2015 showed that same-sex marriage was supported by 15% of Muslim voters. The federal electorate of Reid has a large Muslim population, "implacably opposed to marriage being redefined and same-sex marriage made legal." Australian Islamists are also strongly opposed. The Australian Federation of Islamic Councils does not support same-sex marriage. Of notable Australian Muslims, Ed Husic supports same-sex marriage, Waleed Aly is said to support same-sex marriage and Keysar Trad does not support same-sex marriage.
Transgender and intersex issues
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. 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), they have asked to ensure that any such legislation delivers marriage equality for all Australians. with intersex people being skeptical of the term same-sex marriage. The concurrent requirement, same-sex divorce law, is being discussed. Transgender divorce represents one challenge.
Hobart transgender activist Martine Delaney, a trans-identified woman living in a same-sex relationship with a woman, said she felt humiliated by a booklet on marriage produced by the Catholic Church.
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