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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. While there has been a shift in community and political opinion, the issue of same-sex marriage remains complex and controversial.
It has raised human rights and constitutional law issues, as well as a raft of social, religious, moral and political questions. The purpose of this Research Paper is to update a Parliamentary Library Background Note and to draw more widely on the extensive resources available on this subject.
The paper covers a range of topics including:. In addition, the paper replicates parts of the Background Note, including a history and outline of the Marriage Act and an appendix dealing with other forms of relationship recognition. As the paper concludes, Australia has achieved a high degree of equality between the treatment of same-sex and heterosexual relationships with marriage remaining the one ificant area of difference. For some, it is important to take time to ponder and consider the full implications of changing the meaning of this ancient institution.
For others, including those who live with the memories and scars of the criminalisation and prejudice endured by homosexuals in the past, it is important to move swiftly to remove this last remaining area of difference. Overseas experience would suggest that a long and protracted discussion about the meaning of marriage, leading up to a popular vote some 18 months away, is likely to promote a passionate, robust and even strident or divisive debate within the Australian community.
Executive summary Introduction Position of the political parties. Constitutional questions—The High Court and the Same-sex marriage case. Bills supporting amendment of the Marriage Act to allow same-sex marriage Bills in the current Parliament 44th Parliament. Marriage equality versus religious freedom Conclusion. Appendix 2—Alternative forms of relationship recognition in Australia. Presumptive de facto recognition Registered relationships Civil unions Do these forms of relationship recognition equate to marriage?
During the 44th Parliament, that debate has further intensified, triggered in part by international developments in the United Kingdom, New Zealand, the United States and Ireland where same-sex marriage is now being permitted either through legislative or judicial means.
The debate has been further spurred on by the introduction of a raft of private members Bills into the Parliament; and more recently by the Coalition party room decision to reject a policy change on same-sex marriage—the Prime Minister preferring instead a proposal to put the matter to a popular vote after the next election. There has been a shift in community and political opinion however the issue of same-sex marriage remains complex and controversial. Apart from marriage, it is generally accepted that 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 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 purpose of this Research Paper is to update a Library Background Note on same-sex marriage published in It contains new material on:. The Research Paper also replicates parts of the Background Note including the sections dealing with:.
At a political level, the two major parties had until opposed same-sex marriage. That Bill was defeated at the second reading stage in the House of Representatives. In Julythe issue of same-sex marriage was again on the Labor Party conference agenda with the Party agreeing to retain the existing policy of allowing a conscience vote during the current and next terms of Parliament. However should same-sex marriage not be legalised by members would then be bound to support same-sex marriage.
This motion was the compromise reached to accommodate those in the Party calling for the removal of the conscience vote. The Bill is still before the House. At the time of introduction Prime Minister Abbott and others suggested that such an important matter should be owned by the Parliament rather than one party. More recently Mr Shorten has promised that if elected at the next election, a Labor Government would introduce marriage equality legislation within days of taking office.
Prime Minister Abbott has consistently opposed same-sex marriage and in the parliamentary debates on the same-sex marriage Bills during the 43 rd Parliament, Coalition MPs were not permitted a conscience vote. After a six hour meeting, that was the subject of ificant media reporting,  the Coalition voted to retain its current position that marriage can only be a union between a man and a woman with no provision for a conscience vote on the issue.
It is reported that 42 per cent of Liberal MPs and 14 per cent of Nationals MPs supported a conscience vote on same-sex marriage, the combined vote being about one-third of the t party room. Several backbenchers including Warren Entsch, Teresa Gambaro, Wyatt Roy and Senator Dean Smith have indicated they would cross the floor on any vote on same-sex marriage, although it is unlikely that such a Bill would be debated during the term of this Parliament. Mr Abbott has also clearly indicated that, while backbenchers have the freedom to cross the floor, the normal rules would apply to member of cabinet who would be expected to vote according to Party policy.
The Australian Greens and before them the Australian Democrats have consistently supported same-sex marriage and have sought to legislate in support of their position in all Parliaments since The Marriage Act Cth deals with a range of matters. Its main purpose at the time of enactment was to bring Married housewives wants sex Australian Capital Territory Australian Capital Territory[a] 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:.
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. 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 the legalisation of 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. A key question had been whether the marriage power is the power fixed to its meaning, or is it able to evolve or adapt in line with changed events or attitudes. Legal academics, engaging with this question agreed that, should any Australian parliament legislate to allow same-sex marriage there would undoubtedly be a constitutional challenge to its validity in the High Court. The numerous unsuccessful attempts at federal level to bring about changes to the Marriage Act caused marriage equality advocates to turn to reform at state level.
Introducing same-sex marriage in a state and territory was seen as a fall-back position with several states, including New South Wales, Tasmania, Western Australia and South Australia making various attempts to Married housewives wants sex Australian Capital Territory Australian Capital Territory[a] same-sex marriage laws.
A of same-sex couples immediately took advantage of this law to undertake their wedding vows and around 30 same-sex marriages were performed after 7 Decemberthe date when, due to notice requirements, marriages could first occur. The new law received national as well as local attention and was a cause for both celebration and condemnation.
This finding of inconsistency meant that the ACT law had never come into effect and those ACT marriages ceremonies had not been authorised by law. The people who had gone through a wedding ceremony had not actually been married. Firstly unlike courts in other jurisdictions considering a case of this kind,  the decision was based not on human rights issues but rather on questions of federalism and inconsistency of laws.Married housewives wants sex Australian Capital Territory Australian Capital Territory[a]
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PM seeks legal advice on ACT Marriage Equality Bill