Same-sex marriages are currently
not permitted under
Australian federal
law. Since 2004, the
Marriage Act
1961 has defined marriage as "the union of a man and a woman".
In addition, Australian law expressly declares that unions between
same-sex couples entered into outside the country are not to be
recognised as marriage in Australia.
In all states and territories, cohabiting same-sex couples are
recognised as
de facto couples, and have the same rights
as cohabiting heterosexual couples under state law.
Furthermore, same-sex
couples have access to domestic partnership registries in Tasmania and Victoria
. Civil unions are performed in the Australian
Capital Territory
.
In
November 2008, the Australian
Parliament passed laws that recognised same-sex couples in federal
law, offering them the same rights as unmarried heterosexual
couples in areas such as taxation, social security and health, aged
care and employment. This means that same-sex couples who can prove
they are in a
de facto relationship have most of the
rights of married couples. Nevertheless, despite equality of
rights, Australia does not have a national registered partnership
or civil union scheme.
In
August 2009, a same-sex marriage bill
was introduced by a member of the
Australian Greens who pleaded with the
government to take into mind that the majority of Australians
support same-sex marriage and thereby pass such legislation. The
Senate Legal and Constitutional Affairs Committee is currently
reviewing the bill. The largest protests for same-sex marriage in
the nation's history took place in eight cities on August 1, with
an estimated 8,000 people attending.
Same-sex marriage
The Marriage Amendment Bill 2004
On May 27, 2004, approximately two months after the UK proposed its
Civil Partnership Act
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 August 13,
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.
Support for the bill
Attorney-General Ruddock and other
Liberal argued that the bill was
necessary to protect the institution of marriage, by ensuring that
the common law definition was put beyond legal challenge.
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 and
Christian Democratic
parties supported the bill. The bill was also supported by the
National.
Both the
Australian Greens and
Australian Democrats opposed
the move and both parties aim to introduce
same-sex marriage into Australian
law.
A number of
micro parties yet to gain
representation in Australian federal or state parliaments also
support marriage rights for same-sex couples, including the
Liberty And Democracy
Party, the
Secular Party
of Australia and the
Socialist
Alliance amongst others.
Opposition to the bill
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."
Same-Sex Marriages Bill 2006
In June
2006, Senator Stott Despoja introduced
into Federal Parliament the Same-Sex Marriages Bill 2006, a private
member’s bill. The bill aimed to reverse the changes that were made
in the Marriage Amendment Act 2004. It would have provided equal
status, recognition, treatment and eliminated all legislative
discrimination between same-sex and heterosexual couples. The bill
has stalled indefinitely, but remains on the Parliament's current
bills list.
Same-Sex Marriage Bill 2008 (Tasmania)
Australian Greens'
Nick McKim introduced the
Same-Sex Marriage
Bill 2008 into Tasmania's House of Assembly in July
2008. McKim introduced a similar bill to the House in
April 2005. Neither bill has progressed to a Second Reading.
Marriage Equality Amendment Bill 2009
In June
2009 Greens Senator
Sarah Hanson-Young introduced the
Marriage Equality Amendment Bill 2009 to legislate for
marriage rights for same-sex couples. It would amend the
Marriage Act 1961 to remove all discriminatory references
based on sexuality and gender identity and allow marriage
regardless of sex, sexuality and gender. The inquiry is due to
report by November 26. Previously in 2007, former Greens Senator
Kerry Nettle, introduced a similar
bill, the
Marriage (Relationships Equality) Amendment Bill
2007.
Public opinion polls
In June
2007, the results of a
Galaxy poll commissioned by
advocacy group GetUp!
were released. The poll measured opinions of 1100 Australians aged
16 and over.
- 71% of respondents agreed that same-sex partners should have
the same legal rights as de facto heterosexual couples.
- 57% of respondents supported same-sex marriage. The poll
suggests a 20-point jump in support since 2004,
when Newspoll found 38 per cent in favour
and 44 per cent against.
Two years later in June
2009, a
Galaxy poll conducted for
Australian Marriage Equality
measured the opinions of 1100 Australians aged 16 or older. The
poll found that 60% of Australians would support same-sex marriage,
with 36% opposed and 4% undecided. It also found that 58% of
Australians would support the recognition of same-sex marriages
formed in other countries in Australian Law. The breakdown of the
poll suggested that support was strongest amongst women (68%),
Labor voters (64%), Greens voters (82%), and those aged 16–24
(74%). It also suggested that support was strongest in New South
Wales and weakest in Queensland and South Australia, though a
majority in all states were in support.
Civil unions and registries
[[Image:Same sex marriage Australia map.svg|right|thumb|Status of
same-sex unions in Australia.
]]
Civil union proposals
South
Australia
became the
first state to consider allowing civil
unions for same-sex couples when MP Mark Brindal proposed the Civil Unions Bill
2004 in October 2004. Brindal said,
"Same sex attracted people make invaluable contributions to
society, and society can no longer afford
the hypocrisy to deny them the right to formalise their
relationships."
After the
United
Kingdom
began allowing same-sex civil partnerships in December 2005, Prime Minister John
Howard said he would be opposed to legislation granting similar
civil unions in Australia.
In
2006, the government of the ACT, led by Chief Minister Jon
Stanhope, legislated for same-sex civil unions within 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 defined in the Marriage
Amendment Act 2004.
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 would not allow it to be drafted by
the parliamentary counsel.
In Australia,
civil celebrants
conduct
commitment ceremonies
so that same-sex 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 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 legally binding commitment
ceremonies for same-sex couples, although they may conduct
non-legally binding ceremonies as long as both the couple and those
attending are under no illusion that the ceremony is a legal
marriage.
National relationships register
In
December 2007, Prime Minister Kevin Rudd
stated that the Government would be working on a national
relationship register, similar to the one in Tasmania
, which would officially record an existing same-sex
relationship. Since then, the policy expressed by federal
Attorney-General Robert McClelland
has been to encourage all states and territories to create their
own state-based relationship registers, based on Tasmania's model, while the federal government amends
Commonwealth legislation to recognise these registered
relationships. Neither Rudd nor the Labor Party endorse the
more controversial step of approving
same-sex marriage or
civil unions.
Australian Capital Territory
Since
1994 the ACT has had the Domestic Relationships Act
1994 becoming the first jurisdiction in Australia to
"acknowledge same-gender couples legally". This provided for
distribution of property and finances in the event of a separation,
and inheritance in the event of death. On 16 August
2003, The ACT enacted laws relating to
same-sex adoption.
The ACT was the first Australian jurisdiction to pass legislation
for
civil unions with its
Civil Unions Act 2006 which was
enacted on 9 June 2006, but it was disallowed by the
Governor-General on
13
June on the instruction of the
Federal Executive Council. That
December, the ACT government proceeded with new legislation
recognising same-sex unions based on the
United Kingdom civil
partnership laws, but that was blocked as well. In December
2007, a third attempt was made when the newly
elected Prime Minister
Kevin Rudd said
that he would not override ACT legislation allowing for civil
unions because it was a matter for states and territories. However
on 17 February
2008 Attorney General
Robert McClelland
said it was unacceptable that the ACT proposal would allow public
ceremonies for same-sex couples to celebrate their unions.
In May
2008, after several attempts to amend the
Civil Partnerships Bill, ACT Attorney-General Simon Corbell announced the Territory had
again been forced to abandoned its civil partnerships legislation
and would instead settle for a system of relationship registers
virtually identical to the ones operating in Tasmania and Victoria.
The Civil Partnerships Amendment Bill 2009 was presented to the ACT
Legislative Assembly by the ACT Greens on 26 August 2009, allowing
ceremonies to be conducted with civil partnerships, which was the
contentious item removed from last years' legislation. Labor
initially accused the Greens of playing politics by resurrecting
the issue, but unanimously backed the bill as a matter of principle
as it is Labor Party policy to support civil unions. The Federal
Labor government has agreed not to overturn the bill. The first
ceremony was held on the 25 November, 2009, despite criticism from
Christian lobby groups.
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. The legislation did not include
adoption or reproductive technologies such as
IVF and
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).
Tasmania
Beginning
January 1, 2004, Tasmania's 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 June
2008, Greens'
Nick McKim released advice showing that there is
no constitutional barrier to Tasmania introducing same-sex marriage
laws, and said he intends to submit a bill to allow gay marriage in
the state.
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.
In April
2007, the City of Melbourne
established a Relationships Declaration Program
(like Sydney's from 2005). The following month, the
City of Yarra launched its Relationship
Declaration Program. Under the program two people may declare that
they are partners and have this declaration recorded in the Yarra
City Council Relationship Declaration Register.
Both local registries have since been superseded by the state's
Domestic Partnership Register when it passed the
Relationships Act 2008 which was launched in
December
2008. Both city registers remain
active.
De-facto recognition
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".
HREOC inquiry
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 previous federal government, under Prime Minister
John Howard, banned its departments from making
submissions to the HREOC inquiry regarding financial discrimination
experienced by same-sex couples.
A total of 100 statutes and provisions that discriminate by using
the term 'member of the opposite sex' were later identified, from
Aged Care, Superannuation, Childcare,
Medicare (including the PBS), Pensions,
etc. "All the basics that opposite-gender couples are legally
entitled to and take for granted" .
2007 Election
The
2007 federal
election provided a swing in power that became more conducive
to recognising the LGBT community.
Penny
Wong (Labor) was the first lesbian to be made a minister. Both
the Labor Government and the Liberal party support rights for
same-sex couples (excluding marriage and IVF). Prime Minister
Kevin Rudd (Labor),
Tanya Plibersek (Labor),
Penny Wong (Labor),
Belinda Neal (Labor),
Warren Entsch (Liberal),
Malcolm Turnbull (Liberal) and
Brendon Nelson (Liberal)
“fully support
rights for same-sex couples, but not to the extent of same-sex
marriage(s) and IVF" (a quote from Brendon Nelson).
Within the first six months following the election,
Attorney-General
Robert McClelland
said that his department had gone beyond the
HREOC 58,
identifying a total of 100 laws that discriminate against same-sex
couples. By April 2008, McClelland announced that legislation to
remove these inequalities would be introduced when Parliament
resumes in May for the winter sittings.
The 2008 reforms
Since December 2008, cohabitating ("de facto") same-sex couples
have access to the same federal rights that cohabitating
opposite-sex couples have. In more than 100 areas of law, "de facto
partner" is now defined to include both same-sex and opposite-sex
couples. The rights extended to same-sex couples include, among
others: joint social security and veterans' entitlements,
employment entitlements, superannuation, workers' compensation,
joint access to the
Medicare
Safety Net, hospital visitation, immigration, inheritance rights,
and the ability to file a joint tax return and gain the same tax
rebates as a married couples.
The reforms were chiefly adopted through two Acts of Parliament
introduced by the Rudd Labour Government:
These "omnibus" pieces of legislation amended a wide variety of
existing laws to include same-sex couples. They received support
not only from the governing
Australian Labor Party, but also from
the opposition
Liberal
Party, the
Australian Greens
and independent members.
Australia does not outlaw discrimination based on sexual
orientation at the federal level. However, in response to
Australia's obligation to implement the principle of
non-discrimination in employment and occupation pursuant to the
International Labour
Organization Convention No. 111, the
Human Rights and
Equal Opportunity Commission Act empowers the HREOC to
investigate complaints of discrimination in employment and
occupation on various grounds, including sexual preference, and to
resolve such complaints by conciliation. It is important to note
that such discrimination is not rendered unlawful under the
Act.
State and Territory recognition
At state and territory levels, there is some form of
recognition for same-sex couples, mainly through
being considered in
de facto relationships.
De facto
couples, for example in Tasmania since 2004, South Australia, Australian Capital Territory and Victoria since 2008, have access to many rights and can
easily prove that a relationship exists through a registry or
formal agreement. However in New South Wales
, Western Australia
, Northern Territory
and Queensland
, same-sex and de facto couples often must go to
court to prove a relationship exists, even though there is de facto
recognition called unregistered co-habitation. The inability
of same sex couples to have conclusive evidence of their
relationships can make it difficult for them to access rights
accorded to them under the law. The following list discusses states
and territories with
registered
partnership (significant relationships) or unregistered
co-habitation for same-sex couples:
New South Wales
While the
state of New South
Wales has no state-wide relationship registry, the city
of Sydney
established
a Relationships
Declaration Program in 2005 available for
all couples offering limited legal recognition. While making
a relationship declaration does not confer legal rights in the way
marriage does, it may be used to demonstrate the existence of a de
facto relationship within the meaning of the NSW Property
(Relationships) Act 1984 and other legislation.
The Law Reform Commission of New South Wales began an inquiry into Relationships and the Law several years earlier in September 1999. The Commission's report, which was not released until 2006, recommended an optional state-wide registry for same-sex couples.
On 4 June 2008, the New South Wales 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 50
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 relationship status in
employment, accommodation and access to other goods and
services.
Norfolk Island
In
2005 Norfolk Island
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.
Northern Territory
In March
2004, the Northern Territory 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. 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.
Queensland
In December
2002, Queensland's
Discrimination Law Amendment Act 2002 created a new,
non-discriminatory definition of "de facto partner", affecting 61
pieces of legislation. This gave same-sex couples the same rights
as de facto couples in most instances. While there was discussion
within Queensland government in
2008 to submit
a proposal for a state-based relationship registry, no such
proposal has been submitted.
Amendments to Queensland's Property Law Amendment Act recognise
same-sex partners in regard to the distribution of property in the
event of a separation. Queensland 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 counselling services. Queensland's
Industrial Relations Act 1999 includes same-sex partners
in the definition of spouse. This gives same-sex partners access to
state-based parental, family, bereavement and carer’s leave
provisions.
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.
Western
Australia allows same-sex couples equal access to adoption
procedures and in vitro fertilisation 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. A same-sex couple who
utilise artificial insemination or 'in vitro' fertilisation
treatment together (i.e. both parties present as a couple
throughout the treatment) are able to have both names on the birth
certificate once the child is born.
Recognition of married trans people
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.
Summary of rights
The 2009 Legal situation regarding the recognition of
relationships in Australia:
See also
References
External links
News articles
Other
On the Marriage Amendment Bill
- Senate Hansard speeches
- Divisions
Civil Partnership (Registry)
Wikis
Quiz
Map
Search