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PDF version [ KB ]. Same-sex marriage has been on the political agenda in Australia for several years, as part of the broader debate about the legal recognition of same-sex relationships. The expansion of legal rights and protections afforded to same-sex couples in Australia is well developed at both federal and State level. For example, legislation now exists in four States and the Australian Capital Territory that provides for the legal recognition of relationships that may include same-sex unions.

While there are fewer and fewer rights and obligations attached to married couples which do not attach to de facto couples — a status currently encompassing same-sex couples in most legal contexts— supporters of gay rights argue this is not enough.

They say civil unions and domestic partner registries are not sufficient and for true equality, same-sex couples must have the right to marry. The concept of same-sex marriage is both complex and controversial. It raises human rights and constitutional law issues, as well as a raft of social, religious, moral and political questions.

At a political level, the two major parties have until recently opposed same-sex marriage, although the Australian Greens, and ly the Australian Democrats, have consistently supported same-sex marriage and have sought to legislate in support of their position.

However the traditional rejection of same-sex marriage changed in December , when the ALP party conference voted to amend the party platform on same-sex marriage. The platform now states: 'Labor will amend the Marriage Act to ensure equal access to marriage under statute for all adult couples irrespective of sex who have a mutual commitment to a shared life. Tony Abbott, holds the view that Opposition MPs should not be allowed a conscience vote on same-sex marriage, [4] although there are reports of objections to this stand by members of the Shadow Cabinet.

Rather than Government-sponsored legislation in favour of same-sex marriage, a back-bench member of the Government, Labor MP Stephen Jones has announced that he will present a private member's Bill in The details of that Bill, when it may be introduced and whether the Coalition will allow a conscience vote are still uncertain. It aims to summarise some of the considerable body of literature on this subject and where necessary point the reader to further relevant material.

Appendix 1 presents extracts from the Senate Legal and Constitutional Affairs Legislation Committee report on the Marriage Equality Amendment Bill , giving a summary of some of the arguments for and against same-sex marriage; Appendix 2 gives a comparative summary of alternative forms of relationship recognition and Appendix 3 provides comparative material on overseas jurisdictions. The Marriage Act deals with a range of matters. Its main purpose at the time of enactment was to bring the regulation of marriage into the jurisdiction of the Commonwealth. Until marriage had been regulated by State and Territory law and there were nine separate and diverse systems of marriage law in Australia.

A Marriage Bill was first introduced into the Commonwealth Parliament in The Bill was not dealt with in and was re-introduced in The federal Attorney-General Sir Garfield Barwick at the time stated the main purpose of the legislation was to:. Produce a marriage code suitable to present day Australian needs, a code which, on the one hand, paid proper regard to the antiquity and foundations of marriage as an institution, but which, on the other resolved modern problems in a modern way.

In the concept of modern marriage was a heterosexual union where the parties pledged monogamy and permanency in their relationship. However the Marriage Act as originally enacted in did not contain a definition of marriage. Delivering the second reading speech, Attorney General Barwick said:. None of the marriage laws to which I have referred contains any such definition. But insistence on monogamous quality is indicated by, on the one hand, the provisions of the Matrimonial Causes Act, which render a marriage void where one of the parties is already married, and by a provision in this bill making bigamy an offence.

On its passage through Parliament, Senator Gorton, who was responsible for the carriage of the Bill through the Senate, remarked:. Section 46 says that celebrants should explain the nature of the marriage relationship with words that include:. Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life However these words were seen as a description or exhortation rather than a definition.

It is time that those words form the formal definition of marriage in the Marriage Act. Including this definition will remove any lingering concerns that people may have that the legal definition of marriage may become eroded over time. The definition of marriage was inserted along with changes to expressly preclude the recognition of same-sex marriages conducted overseas. These amendments were in the main a response to reforms legalising same-sex marriage in a of overseas jurisdictions. In this regard, the Attorney-General, Philip Ruddock, stated:.

A related concern held by many people is that there are now some countries that permit same sex couples to marry. It has been reported that there are a few Australian same sex couples who may travel overseas to marry in one of these countries on the basis that their marriage will then be recognised under Australian law on their return.

Australian law does, as a matter of general principle, recognise marriages entered into under the laws of another country, with some specific exceptions. The amendments to the Marriage Act contained in this bill will make it absolutely clear that Australia will not recognise same sex marriages entered into under the laws of another country, whatever country that may be. At the time, these amendments and their method of enactment were controversial and contentious.

There were in fact two Bills the first the Marriage Legislation Amendment Bill contained amendments to define marriage and to preclude recognition of overseas same-sex marriages in Australia, but also included amendments to prevent same-sex couples adopting children from overseas. This first Bill was referred to a Senate Committee for inquiry but within a day of its referral a second Bill the Marriage Amendment Bill was introduced into Parliament.

This second Bill did not contain the amendments relating to overseas adoption — these being the ones that the Labor Party had indicated it would not support. The rationale for this unusual and dramatic change of direction was so that the Bill would have a speedy passage through the Parliament. If this bill is acceded to today, I want to make it very clear that the reason for this, without breaching any privacy matters, is that some parties have already sought recognition of offshore arrangements approved under the laws of other countries and would be seeking recognition under our law.

It is the government's view that the provisions of the Marriage Act which we are seeking to enact should not be delayed and should not be the subject of Senate referral. The opposition having indicated its support for these measures should ensure—having restricted it to those matters that relate to a definition of marriage and the recognition of overseas marriages, which they say they support—that they receive a speedy passage.

While the legislation had the support of both major parties the Labor Party expressed reservations about the process of enactment. That Bill was defeated by 45 votes to 5 at the Second Reading stage. This would be achieved by repealing the current definition of marriage contained in subsection 5 1 of the Marriage Act and replacing it with the following definition:.

The Bill would also remove section 88EA that prohibits the recognition of marriage between same-sex couples solemnised in a foreign country item 5. In addition the Bill contains a new objects clause and several consequential amendments to remove references to a heterosexual meaning of marriage. As noted in the introduction, Labor MP Stephen Jones has announced that he will present a private member's Bill to allow same-sex marriage in The details of that Bill are not known, however for the purposes of this paper it is assumed it will be similar to the Greens Bill.

That power is not further defined by the Constitution. Leading academics suggest that should the Australian Parliament legislate to allow same-sex marriage there will undoubtedly be a constitutional challenge to its validity in the High Court.

It is settled law that the Commonwealth cannot define the constitutional meaning of marriage through legislation. Nor can the Parliament manufacture legislative power by the device of deeming something that is not a marriage to be one or by constructing a superficial connection between the operation of a law and a marriage which examination discloses to be but contrived and illusory. In Hyde v. Although the nature and incidents of a legal institution would ordinarily be susceptible to change by legislation, constitutional interpretation of the marriage power would be an exercise in hopeless circularity if the Parliament could itself define the nature and incidents of marriage by laws enacted in purported pursuance of the power.

Under the power to make laws with respect of marriage, I should say that the parliament could prescribe what unions are to be regarded as marriages. In , in Attorney-General Vic v. The level of abstraction for some terms of the Constitution is, however, much harder to identify than that of those set out above.

If that level of abstraction were now accepted, it would deny the parliament of the Commonwealth the power to legislate for same sex marriages, although arguably marriage now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others. Griffiths describes this technique in the following way:. More technically, when interpreting the meaning of a constitutional term, the High Court has traditionally distinguished between connotation and denotation, that is, between the actual usage relevant to a term in denotation , as opposed to a definition of the term which elucidates its essential characteristics connotation.

Thus, as Zines concludes, "an aircraft although not within the denotation of the term 'vehicle' in was within its connotation because it is a means of conveyance even though that particular means did not exist in ". That is, the court would likely find that the connotation of the constitutional term "marriage" in was formal, monogamous and heterosexual unions.

And if this interpretive technique is something more than a mere linguistic device, then it is difficult to argue that heterosexuality was not an essential or core element of "marriage" in However a different interpretative technique, one based on marriage as an evolving legal institution, could produce a different outcome.

This is described by Brock and Meagher in the following way:. It involves recognising that the subject matter of the power is "marriage" as a legal institution, one that before was the subject of gradual but ificant change by the statutes of the United Kingdom and the Australian colonies as the earlier analysis demonstrates. In this regard, "marriage" is one of a of legal terms and institutions that became constitutional provisions in Importantly, these legal terms of art were products of pre-federation common law and statute and their content — consistent with the common law tradition - was still developing and contested to varying degrees at the time of federation.

Considering this history, is it not reasonable to assume that the framers understood that the legal institution of "marriage" would likely develop further after federation and provided a constitutional mechanism to accommodate this? He concluded:.

There can be no answer to this dilemma until a federal same-sex marriage law is tested in the High Court. My view is that a majority would lean to the latter view, thereby allowing the federal parliament to provide for same-sex marriage.

Some of these alternatives are mentioned briefly below. Like all section 51 powers, the marriage power in section 51 xxi of the Constitution is not an exclusive federal head of power but is held concurrently with the States. Where a federal and a State law are in conflict, section resolves that conflict in favour of the Commonwealth law, with the State law being rendered not void but inoperative for the duration of the conflict.

A move towards formal legal recognition of same-sex unions may therefore occur through use of the legislative powers of the States. In fact in three States, Tasmania, New South Wales and South Australia, there have been Bills introduced that if passed would permit same-sex marriage in the respective State. The only impediment to such laws would be if such laws were rendered in-operative by section of the Constitution due to inconsistency with federal law.

The question of whether the States can legislate to legalise same-sex marriage is beyond the scope of this paper but it has received scholarly attention in the context of the Tasmanian Same-Sex Marriage Bill where George Williams and Geoffrey Lindell provided extensive opinions on the constitutional issues involved with that Bill. However, even if state based same-sex marriage laws were found to be constitutionally valid, they may not be a satisfactory solution for supporters of gay rights. A key element of the push for same-sex marriage is that the same form of marriage should be available for same-sex and heterosexual couples.

Like civil unions and registers, state-based marriage laws could be seen as a second-class form of recognition to a Commonwealth law on marriage. Another option would be for the States to refer their powers to legislate for marriage to the Commonwealth. As Brock and Meagher have noted, it would also complement the enactment by the Commonwealth of the Family Law Amendment De Facto Financial Matters and Other Measures Act ; legislation made possible by most States referring their power to make laws for maintenance and property division upon the breakdown of de facto relationships of opposite and same-sex couples.

Under the external affairs power in section 51 xxix , the Commonwealth can enact domestic legislation which gives effect to its international obligations. Whilst the ICCPR does not contain an express right for same-sex marriage, it does have a prohibition on discrimination. Article 26 expressly prohibits discrimination, which is any distinction, exclusion, restriction or preference on any ground which has the purpose or effect of nullifying or impairing the enjoyment or respect of human rights by all on an equal footing.

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Same-sex marriage