Same-sex marriage in Australia

From Academic Kids

Same-sex marriage
Performed nationwide in:
Performed in some regions in:
Canada: BC, MB, NL, NS, ON,
United States: MA
Other countries and regions:
Canada: AB, NB, NT, NU, PE
South Africa
United States: CA NY
See also
Civil union
Domestic partnership
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Same-sex marriage is not recognised under Australian federal law. Under section 51(xxi) [1] ( of the Australian Constitution, both the federal and state governments are permitted to pass legislation regarding marriage, but any state law recognising same-sex marriage would be over-ridden by federal legislation to the extent of the inconsistency (as per section 109 of the same [2] ( Until 2004 the Marriage Act did not define marriage, but the common law definition of marrige as "a union between a man and a woman" was applied by Australian courts and was taken to be "settled law."


State recognitions

At a state level, New South Wales, Queensland and the Australian Capital Territory recognise same-sex de facto relationships. South Australia has legislation before its Parliament to enact same-sex de facto relationships. On January 1, 2004, Tasmanian laws came into place recognising same-sex civil unions. Tasmania is, so far, the only Australian state to enact such laws.

Currently Tasmania, Western Australia and the ACT have enacted laws relating to same-sex adoption. Of these, only WA and the ACT allow for open adoption. In Tasmania only known child adoption is legal.

Response to challenging common law

The possibility of a challenge to the common law definition of marriage arose when same-sex marriage became legal in Ontario, Canada, in 2003. Since Ontario law does not restrict the right to marry to residents or Canadian citizens, the possibility arose that Australian citizens would contract same-sex marriages in Ontario and then return to seek recognition of those marriages in Australian courts.

Marriage Legislation Amendment Bill

On May 27, 2004, therefore, the Attorney-General, Philip Ruddock, introduced the Marriage Legislation Amendment Bill ( (PDF), intending to incorporate the common law definition of marriage into the Marriage Act and the Family Law Act. Although this was not intended to alter the current status of same-sex relationships, it would preclude any possibility that the courts could overturn the common law definition and recognise the validity of a same-sex marriage legally contracted in another country.

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. Support for same-sex marriage has never been Labor policy, although the party has a policy of removing all discrimination against gay men and lesbians and against same-sex couples. Labor feared that the government was introducing the legislation with the intention of using it as a wedge issue at the federal election expected before end of 2004.

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. Ruddock and other Liberals argued that bill was necessary to "protect the institution of marriage" against what they said was the "threat" of same-sex marriage, by ensuring that the common law definition was put beyond legal challenge [3] (

The Australian Democrats and the Australian Greens have opposed the legislation in the Senate, but Labor support ensured that it would pass through both houses. In June 2004 the bill passed the House of Representatives. On August 13, 2004, the Senate passed the amendment by 39 votes to 7.

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 solemnized in a foreign country between: (a) a man and another man; or (b) a woman and another woman; must not be recognized as a marriage in Australia.[4] (

Responses to the bill

Criticisms of the bill during the Senate discussions included an amendment proposed by the Greens to change the name of the bill to the "Marriage Discrimination Act" (which failed), an emotional Democratic Senator Andrew Bartlett, stating that the legislation "devalues [his] marriage", and with Green Senator Bob Brown referring to the Prime Minister John Howard and the legislation as "hateful" [5] ( Brown was asked to retract his statements, but refused.

Until recently most gay rights activists in Australia did not regard the legal recognition of same-sex marriage as a high priority as compared with other issues, such as abolishing discriminatory laws relating to superannuation, adoption, and other matters. Under the influence of events in the United States and Canada, however, the issue has become more prominent, although some gay rights activists still take the traditional view that marriage is a heterosexual institution which gay men and lesbians should not participate in.

Labor's decision not to oppose the amendment of the Marriage Act thus drew sharp criticism from the gay and lesbian rights movement, many of whose activists are members or supporters of the Greens or the Democrats. In response, Roxon argued that the bill did not change the legal position of same-sex relationships, and was merely a "Howard election stunt." She said that Labor remained committed to a comprehensive policy of gay and lesbian rights.

See also

External links

News articles

Senate Hansard speeches (Marriage Amendment Bill 2004)




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