Same-sex marriage in Australia

Neither Same-sex marriage nor civil unions are recognised under Australian federal law and, since 2004, the Marriage Act explicitly recognises marriage as being "the union of a man and a woman". However, all states and territories currently have laws in place which recognise cohabitating same-sex couples as de facto partners, offering them the same rights as unmarried opposite-sex couples. These rights only apply on a state and territory level, with same-sex couples currently not offered the same rights as unmarried opposite-sex couples in fifty-eight pieces of federal legislation. This may soon change under a full Labor Goverment in Australia. [1]

Under section 51(xxi) [2] of the Australian Constitution, the Parliament of Australia is vested with the powers to make laws with respect to marriage.

The Marriage Legislation Amendment Bill

On May 27, 2004, the Attorney-General, Philip Ruddock, introduced[3] 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.

Social Security Act 1991

Other acts of parliament specifically recognise a de-facto relationship between people of the same sex. This is evident in acts such as the social security act which allows Centrelink employees to consider a same sex relationship as equivalent to a marriage when paying unemployment or other benefits and thereby pay (the same as a heterosexual couple) less than would be due to two individuals.

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.[4]

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.

The Labor Party appears to have ruled out changing the bill if they form a future government. On 21 March, 2007, Labor MP Tanya Plibersek, herself married, told The Sydney Morning Herald, "Labor does not support changing the Marriage Act to allow same-sex marriage".[5] On 10 August, 2007, Prime Minister Kevin Rudd as reported by the AM radio program, "I have a pretty basic view on this, as reflected in the position adopted by our party, and that is, that marriage is between a man and a woman."[6] Rudd repeated his opposition to same-sex marriage in an interview with radio host Kyle Sandilands on 23 October, 2007. ABC video of interview But has full support of both opposite and same-sex partnership in a registory.

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 [7]. The bill was also supported by the Nationals.

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.

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 John Howard and the legislation as "hateful"[8] [9]. Brown was asked to retract his statements, but refused. Bob Brown also quoted as Australia having a "straight Australia policy".

Civil union proposals

File:Queer-pash-canberra.jpg

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 allowing same-sex civil partnerships in December 2005, 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.[10]

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 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.^[1]

Recognition in Federal legislation

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 Organisation Convention No.111 (ILO 111), the Human Rights and Equal Opportunities Commission (HREOC) 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.

Allows foreign partners of its homosexual citizenry to receive residency permits. The Federal Police extend spousal rights to same-sex couples. Gay soldiers, pilots and sailors in the Australian Defence Force are entitled to the same benefits as heterosexual couples. This means equal benefits in housing, moving stipends, education assistance and leave entitlements. The Australian Defence Force (ADF) will acknowledge personnel’s same-sex partnerships as "interdependent relationships." These benefits apply only to ADF members who are involved in interdependent relationships with a same-sex partner. To be recognised as interdependent, same-sex partners will have to show they have a "close personal relationship" that involves domestic and financial support.

Discrimination against same-sex couples in Federal legislation

58 statutes and provisions in Commonwealth laws and legislation list of discrimination listed in this; 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. A total of 58 statutes and provisions that use the term 'member of the opposite sex' from Aged Care, Superannuation, Childcare, Medicare including the PBS, Pensions, etc. "Basically all the basics that opposite-gender couples are legally entitled to and take for granted" ^[2]^{[citation needed]}.

Further reading

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 [11] (HREOC) launched 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'.

State and Territory legislation

At state and territory levels, there is some form of recognition for same-sex included in de facto relationships. De facto couples, for example in Tasmania since 2004 and Victoria (from 1 December 2007), now have access to many rights to prove that a relationship exists - By a registry, but often must go to court to prove a relationship exists in New South Wales, South Australia, Western Australia, Australian Capital Territory, Northern Territory and Queensland because of domestic partnerships also called unregistered cohabition. 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 domestic partnerships legislation for same-sex couples:

Australian Capital Territory - Since 1994 the ACT has the "domestic relationships Act 1994" [12] - The first place in Australia to "acknowledge same-gender couples legally". Distribution of property and finances in the event of a separation, inheritance in the event of death. The ACT also has enacted laws relating to same-sex adoption. The ACT Government announced plans for civil unions to be introduced with its Civil Unions Act 2006 which was passed on 11 May 2006. 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 proceeded with new legislation recognizing same-sex unions based on the United Kingdom civil partnership laws. [13], [14], [15][16]. In February 2007 civil partnerships were blocked again [17], [18], [19], [20] and the Federal Attorney General indicated that the Commonwealth would oppose this new legislation. Both these laws described above have since been repealed by order of the Attorney General Philip Ruddock.

Domestic Relationships Act 1994 (still in force)
Civil Partnerships Bill 2006 (Repealed)

New South Wales - The "Workers Compensation Act", the "Victims Compensation Act" and the "Criminal Procedure Act" have been reformed to include same-sex couples and also a further 60 pieces of legislation called the "Property (Relationships) Legislation Amendment Act" from 1999 and also in 2002, called the "Miscellaneous Acts Amendment (Relationships) Act" [21]. All these Acts includes dependents both opposite-sex and same-sex partners, parents, carers and siblings. In 2004, the City of Sydney (Council), led by Lord Mayor Clover Moore, introduced a reform of the Partnership Registration scheme, naming 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 similar to Melbourne.

Sydney Relationships Declaration Program [22] From 1 January 2008, Evidence Act and 4 other Juriducial Acts will amend "de facto spouse" and put "de facto partner" [23] [24]

Norfolk Island - Domestic partnership provided from 2006 (see De Facto Relationships Act 2005)[25]

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 recognized as the parent of their partner’s child across State law. [26] 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 - Amendments to Property Law Amendment Act and Industrial Relations Act 1999 to recognize same-sex partners in regard to the 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. Queensland's Industrial Relations Bill 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. The bill also recognizes a de-facto spouse. [27] In December 2002, Queensland's Discrimination Law Amendment Act 2002 [28] created a new, non-discriminatory definition of "de facto partner" into 61 pieces of legislation.

South Australia - 77 pieces of legislation which provide superannuation entitlements under four superannuation Acts, as well as rights concerning property ownership, inheritance, financial affairs, hospital access and other entitlements under the 'Family relationships Act 1975' by quoting; "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 Act has been in force since June 2007 to include 'domestic partner' in 77 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)'. [29] [30] [31] [32] [33] [34] [35] [36] [37] [38].

South Australia Domestic Partners Legislation Official Fact Sheets and Agreement Forms

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. The new definition of partner or spouse is; "2 people in a relationship whether or not it's sexual" embedded into 80 pieces of legislation which 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 being in a Caring Relationship. British law recognizes Significant Relationships as equivalent to civil partnerships in the United Kingdom [39] (Tasmanian government) and [40] (Partners Task Force for Gay and Lesbian Couples).

Tasmania Relationship Registry
See also Domestic partnership in Tasmania

Victoria - A City of Melbourne Relationships Declaration Program (like the City of Sydney from 2004) has been available since April 2007 for Melbourne [41] [42]. From 1 December 2007, Victoria will have a "registry system for all relationships and carers" and even providing adoption to same-sex couples. However, since August 2001, 50 Acts have been amended to included same-sex couples called the "Statute Law Amendment (Relationships) Act" and the "Statute Law Further Amendment (Relationships) Act" ^{[citation needed]}, legally giving 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 [43], [44], [45], [46] [47] [48] Victoria's first Relationship Declaration Register launched Same-sex register for Victoria Gays recognized with legal standing.

Melbourne Relationship Declaration Register

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 [49]. 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. A same-sex couple who utilise artificial insemination or 'in vitro' fertilization 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.

Source: Countries that recognize or proposed to recognize same-sex relationships

State grants right to silence for gay partners in court

Partners of gays get right of silence

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 recognizing the existence of a marriage between two persons who are legally recognized as female. [50]

2007 Public opinion of 1100 people

A galaxy poll found that 57 per cent of respondents (aged 16 and over) supported same-sex marriage [51]

Another galaxy poll found that 71 per cent of respondents (aged 16 and over) supported same-sex partners in regard to unions, partnerships entitlements and legal recognition, etc. [52]

Also another galaxy poll found that 59 per cent of respondents (aged 16 and over) supported same-sex partners in regard to Adoption rights for LGBT Australians. ^{[citation needed]}

Adoption for same-gender couples

Adoption for same-sex couples is currently available in Australian Capital Territory, Western Australia and Victoria (Australia) (from December 2007). Regarding Tasmania, only stepchild adoption is possible regardless of gender. The Commonwealth or federal government of Australia plans the make all overseas adoption of children for same-sex couples illegal from 1 January 2008 under a new 'provision' or 'Amendment' of the Commonwealth Family Law Act, the Family Law (Same Sex Adoption) Bill. ^[3]

Adoption status in the States and Territories

Full adoption or step child adoption available for all couples;

Illegal to allow only same-gender couples to legally adopt children, however still considering and/or debating with legislators;

Note; Single LGBT people can still adopt, but they are considered "less of a priority" [53].

Sources

References

^ Australian Attorney-General's website.
^ Human Rights and Equal Opportunity Commission: Same-Sex: Same Entitlements Report, June 21, 2007
^ http://www.smh.com.au/news/National/Same-sex-couples-face-adoption-ban/2007/08/02/1185648030026.html

External links

News articles

"PM joins opposition to gay marriage as cleric's election stalls". The Sydney Morning Herald. 6 August 2003. {{cite news}}: Check date values in: |date= (help)
"Love, honour and gay". The Bulletin. 3 October 2003. {{cite news}}: Check date values in: |date= (help)
"Latham promises same sex rights". The Age. 4 January 2004. {{cite news}}: Check date values in: |date= (help)
"Latham flirts with prejudice over gay marriage ban". Greens WA. 2 February 2004. {{cite news}}: Check date values in: |date= (help)
"Labor Right sinks same-sex scheme". The Age. 3 February 2004. {{cite news}}: Check date values in: |date= (help)
"Same-sex wedding fever". The Sydney Morning Herald. 16 February 2004. {{cite news}}: Check date values in: |date= (help)
"Coalition, Labor pass same-sex marriage ban". Australian Broadcasting Corporation. 13 August 2004. {{cite news}}: Check date values in: |date= (help)

Other

On the Marriage Amendment Bill

Senate Hansard speeches

Divisions

Second Reading
In committee (on amendments proposed by Greens and Democrat senators)
Third reading

[1] Australian Attorney-General's website.

[2] Human Rights and Equal Opportunity Commission: Same-Sex: Same Entitlements Report, June 21, 2007

[3] ttp://www.smh.com.au/news/National/Same-sex-couples-face-adoption-ban/2007/08/02/1185648030026.html

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