Same-sex marriage in Australia
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| Same-sex marriage |
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| Performed nationwide in |
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Netherlands (2001) |
| Performed statewide in |
| Massachusetts, USA (2004) |
| Foreign same-sex marriage recognized in |
| Israel (2006) |
| Debate in other countries and regions |
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Argentina |
| See also |
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Civil union |
Same-sex marriage is not recognised under Australian federal law. Under section 51(xxi) [1] of the Australian Constitution, the Parliament of Australia is vested with the powers to make laws with respect to marriage. Until 2004 the Marriage Act 1961 did not define marriage, but the common law definition of marriage as "a union between a man and a woman" was applied by Australian courts and was taken to be "settled law."
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[edit] The Marriage Legislation Amendment Bill
On May 27, 2004, the Attorney-General, Philip Ruddock, introduced[2] the Marriage Legislation Amendment Bill, intending to incorporate the common law definition of marriage into the Marriage Act and the Family Law Act. In June 2004, the bill passed the House of Representatives. On August 13, 2004, the Senate passed the amendment by 38 votes to 6.
[edit] Specifications of the bill
The amendment specifies the following:
Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
Certain unions are not marriages. A union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman; must not be recognised as a marriage in Australia.[3]
[edit] Responses by major parties to the bill
The Labor shadow Attorney-General, Nicola Roxon, said on the same day the amendment was proposed that the Labor Opposition would not oppose the section of the legislation amending the Marriage Act. The bill was supported by Labor policy. Labor argued that the amendment did not affect the legal situation of same-sex relationships, merely putting into statute law what was already common law, essentially agreeing with Howard's intentions.
Ruddock and other Liberals argued that bill was necessary to protect the institution of marriage, by ensuring that the common law definition was put beyond legal challenge [4]. The bill was also supported by the Nationals.
[edit] Responses by minor parties to the bill
The Family First and Christian Democratic parties supported the bill. The Australian Democrats and the Australian Greens opposed the bill.
[edit] Responses to the bill
Despite having support of the major parties the bill was bitterly contested by sections of the community, human rights groups and some minor political parties. The Greens called the bill the "Marriage Discrimination Act", Democrat Senator Andrew Bartlett stated that the legislation devalues his marriage, and Greens Senator Bob Brown referring to the Prime Minister John Howard and the legislation as "hateful"[5] [6]. Brown was asked to retract his statements, but refused.
[edit] Civil union proposals
In 2006 the government of the ACT, lead by Chief Minister Jon Stanhope, legislated for same-sex civil unions in the ACT. The legislation was overturned by the federal government with Philip Ruddock saying Stanhope was deliberately baiting them. Ruddock received criticism from the Greens party, but claimed that the ACT's policy was not for civil unions but for marriage which was legally defined with the "The Marriage Legislation Amendment Bill".
After the United Kingdom began granting same-sex civil partnerships in December 2004, Prime Minister Howard said he would be opposed to legislation granting similar civil unions in Australia.
In March 2006, independent Victorian MP Andrew Olexander proposed a private member's bill to allow civil partnerships in the state, but the state government has not allowed it to be drafted by the parliamentary counsel.[7]
In Australia, civil celebrants conduct commitment ceremonies so that gay and lesbian couples can participate in a ceremony to acknowledge their love and partnership. The federal government however has introduced a registration system whereby prospective celebrants must undergo Government-approved, accredited training and meet specific criteria set by the Attorney-General's Department to be declared a "fit and proper person" to hold the office of "marriage celebrant". Under the new rules a registered celebrant is not permitted to conduct commitment ceremonies for same-sex couples.
[edit] Adoption
Adoption by same-sex couples is only legal in two Australian states - Australian Capital Territory and Western Australia). For Tasmania only stepchild adoption is possible regardless of gender[citation needed], however the federal government plans the make overseas adoption of children for same-sex couples illegal under new plans. See: LGBT adoption [8].
[edit] HREOC Inquiry
On Monday 3 April 2006, the Human Rights and Equal Opportunity Commission launched 'Same-Sex: Same Entitlements': A National Inquiry into Discrimination against People in Same-Sex Relationships Regarding Financial and Work-Related Benefits and Entitlements. [9]. The Commission is due to present its findings in early 2007.
A preliminary list of legislation that may require amendment to include same-sex families in Commonwealth laws can be found at http://www.hreoc.gov.au/samesex/preliminary_list_Cth_legislation.html
[edit] State law
At state and territory levels, there is some form of recognition for same-sex included in de facto relationships. The following list discusses states and territories with civil unions, domestic partnerships or significant relationships laws for same-sex couples:
- Australian Capital Territory - Distribution of property and finances in the event of a separation, inheritance in the event of death. Currently the ACT has enacted laws relating to same-sex adoption. The ACT Government announced plans for civil unions to be introduced from early 2006 and proposed legislation in March. Attorney-General Philip Ruddock said that the enactment of the bill for civil unions "will not satisfy the Commonwealth"[10] and it would intervene unless the bill was changed. The Stanhope Government acceded to his wishes, and changed the specified parts of the bill accordingly. However, according to the Attorney-General, other changes were made which circumvented these changes. The Civil Unions Act 2006 was passed on 11 May 2006. On 6 June 2006, Ruddock announced plans to request the Governor-General disallow the law on the basis it was ultra vires the territory's self-government act. The ACT enacted the legislation on 9 June 2006 and the Governor-General disallowed it on 13 June 2006 on the instruction of the Federal Executive Council. In December 2006 the Australian Capital Territory government indicated that it would proceed with new legislation recognising same sex unions based on the United Kingdom civil partnership laws.[11], [12], [13][14]. In February 2007 civil partnerships are blocked again [15], [16], Same-sex union Bill blocked again February 06, 2007 09:38 pm, [17] and the Federal Attorney General indicated that the Commonwealth would oppose this new legislation.
- New South Wales - The Workers Compensation Act now include same-sex couples. The Victims Compensation Act and the Criminal Procedure Act have also been reformed to include same-sex couples. Previously, under the Workers Compensation Act, entitlements were only extended to a heterosexual worker's dependent spouse and children. The Act now includes dependent same-sex partners, parents and siblings. In 2004, the City of Sydney Council, led by Lord Mayor Clover Moore, introduced a re-working of the former South Sydney Council's Partnership Registration scheme, renaming it the City of Sydney Relationships Declaration Program. While not conferring the additional legal rights of marriage, it may confer some limited legal recognition, as this document may be produced as evidence of the relationship.
- Norfolk Island - A proposed law currently under a second reading to include same-sex couples in the statutes.[citation needed]
- Northern Territory - Members of the Legislative Assembly in the Northern Territory can take their same-sex partners with them on overseas trips at taxpayer expense, the territorial Remuneration Tribunal ruled on 9 December 2003. The tribunal redefined a de-facto spouse as a "person who is not married to the Member, but is in a marriage-like relationship with the Member."
- Queensland - Distribution of property in the event of a separation. Allows couples in same-sex relationships who are victims of relationship violence to take out domestic violence orders against a violent partner, and other protective measures, including counseling services.
- South Australia - Extends superannuation entitlements under four superannuation Acts, as well as rights concerning property ownership, inheritance, financial affairs, hospital access and other entitlements: "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". This bill passed in both houses of the state Parliament in 2006 [18], [19] and [20].
- Tasmania - Since January 1, 2004, The Relationships Act allows same-sex couples to register their union (a Significant Relationship) with the state's Registry of Births, Death and Marriages. Gives 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. Allows one member of a same-sex couple to adopt the biological child of their partner. The act also allows any two adults, related or not, to register as a Caring Relationship. British law recognizes Significant Relationships as equivalent to civil partnerships in the United Kingdom [21] (Tasmanian government) and [22] (Partners Task Force for Gay and Lesbian Couples).
- Victoria - A relationship decleration programe has been available since April, 2007 for the City of Melbourne [23] [24]. Currently the law gives same-sex couples some rights equal to those enjoyed by de facto couples, including hospital access, medical decision making, superannuation, inheritance rights, property tax, landlord/tenancy rights, mental health treatment, and victims of crime procedures [25], [26], [27], [28] [29] [30] Victoria's first Relationship Declaration Register launched.
- Western Australia- Allows same-sex couples equal access to adoption procedures and in vitro fertilization treatment. It also gives same-sex couples the same rights as opposite sex couples in areas such as transfer of property, medical treatment, and inheritance upon the death of a partner.
[edit] Discrimination against same-sex couples in Federal legislation
A comprehensive list of discrimination is listed in the Human Rights and Equal Opportunity (HREOC Australia) report, Same-sex Entitlements Discussion Paper II (2006).
Stories and submissions from individuals and organisations, about how this discrimination affects individuals, families and children, can also be read at the HREOC website.
- Aged care - not recognised under the Aged Care Act 1997, which can result in same-sex partners qualifying for less financial assistance under the Residential Care Subsidy Scheme.
- Child support - same-sex families are excluded from the Child Support Scheme set up under the Child Support (Assessment) Act 1989.
- Defence and Veterans' Affairs - despite recent reforms to the Defence Instruction (General) Manual and the Australian Defence Force Pay and Conditions Manual, discrimination remains in the Defence Force Retirement and Death Benefits Act 1973, Veterans’ Entitlements Act 1986 and the Defence Force (Home Loans Assistance) Act 1990 (amongst others).
- Family law - same-sex couples are excluded under the Family Law Act 1975 from accessing the Family Court after relationship breakdowns except in disputes relating to children.
- Insurance - no federal legislation exists to prohibit insurers' discrimination on the basis of sexuality.
- Medicare and the Pharmaceutical Benefits Scheme - the Medicare and PBS Safety Nets, constituted under the Health Insurance Act 1973 and National Health Act 1953, do not recognise same-sex couples.
- Superannuation
- Taxation
- Welfare
See Howard to review discrimination of gays and PM to review same-sex couples' rights
[edit] Public opinion
- A Newspoll poll released by SBS World News in June 2004 said 38 percent of respondents were in favor of same-sex couples "being given the same rights to marry as couples consisting of a man and a woman," while 44 percent were opposed.[31][32]
- A Newspoll poll, commissioned by the Humanist Society of NSW, taken February 2006 said 52 percent of respondents agreed that the government should introduce a law to recognise same-sex relationships (whether through marriage or civil unions was not specified), while 37 percent disagreed.[33][34]
[edit] See also
[edit] External links
[edit] News articles
- "PM joins opposition to gay marriage as cleric's election stalls", The Sydney Morning Herald, 6 August 2003.
- "Love, honour and gay", The Bulletin, 3 October 2003.
- "Latham promises same sex rights", The Age, 4 January 2004.
- "Latham flirts with prejudice over gay marriage ban", Greens WA, 2 February 2004.
- "Labor Right sinks same-sex scheme", The Age, 3 February 2004.
- "Same-sex wedding fever", The Sydney Morning Herald, 16 February 2004.
- "Coalition, Labor pass same-sex marriage ban", Australian Broadcasting Corporation, 13 August 2004.
[edit] Other
- Australian Marriage Equality
- Recognition of same-sex relationships - an international and comparative perspective.
- South Australia gays get new rights
- CIVIL UNION FACT SHEET
- ACT Government Press Release, 2 Dec 2005
[edit] On the Marriage Amendment Bill
- Senate Hansard speeches
- Andrew Bartlett (Democrats)
- Michael Forshaw (ALP)
- Kerry Nettle (The Greens)
- Santo Santoro (Liberals) -- by leave
- Divisions
- Second Reading
- In committee (on amendments proposed by Greens and Democrat senators)
- Third reading
