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Australia: Bill to Establish State Relationship Register for Same-Sex Couples Introduced

(Oct. 7, 2016) On September 22, 2016, the South Australian government introduced into the State Parliament a bill that will enable unmarried couples, both same-sex and heterosexual, to register their relationships with the government.  The Relationships Register Bill 2016 (SA) provides for such couples to receive a certificate of registration and have their relationships legally recognized, making it easier for them to access entitlements and assert rights, including with respect to medical situations.  (Press Release, Jay Weatherill, Bill to Create a Relationships Register Introduced to State Parliament (Sept. 22, 2016); Relationships Register Bill 2016 (SA), South Australian Legislation website.)

The Bill will also allow for same-sex marriages entered into in another country to be recognized, stating that “[a] law of another State or a Territory of the Commonwealth, or of another country, that, in accordance with the general requirements, provides for the registration or the formal recognition of a relationship may be declared by the regulations to be a corresponding law under this Act.”  (Relationships Register Bill 2016 (SA), cl 26(1).)  A relationship recognized or registered under such other law will be taken to be a registered relationship in South Australia, and couples in such recognized relationships can also apply for a certificate of registration in South Australia.  (Id. cl 27.)

Four other Australian states (Tasmania, Victoria, New South Wales, and Queensland) already provide for the formal recognition of overseas same-sex marriages under their relationships register legislation.  (Caroline Davies & Elle Hunt, Premier Apologises to Bereaved Briton Whose Same-Sex Marriage Was Not Recognised, GUARDIAN (Jan. 20, 2016).) The most recent legislation on this issue was passed in Victoria in February 2016.  (Paul Karp, Victoria to Recognise Relationships of Same-Sex Couples Who Marry Overseas, GUARDIAN (Feb. 14, 2016).)

Background

Same-sex marriage is not legal anywhere in Australia, and overseas same-sex marriages are also not recognized under the federal Marriage Act 1961 (Cth) (Federal Register of Legislation website).  The South Australian Bill was developed following a situation involving a gay couple who had been married in the United Kingdom and were on their honeymoon in South Australia in January 2016.  One of the men died during the trip, and his husband’s name could not be recorded on the death certificate, which meant that the husband could have little involvement in the relevant arrangements concerning the death because South Australian law did not recognize their relationship.  (Weatherill, supra.)

The Premier of South Australia, Jay Weatherill, apologized to the husband and said that the government would put forward legislation this year to ensure the situation did not happen again.  (Davies & Hunt, supra.)  If the Bill is adopted, the husband will be able to request a new death certificate bearing the correct marital status.  (Weatherill, supra.)

Prior to the events in January, the South Australian Law Reform Institute had been tasked with identifying state legislation that discriminates on the grounds of sexual orientation and gender identity.  This review identified 140 such laws, and the Institute made recommendations to address the discriminatory provisions.  (Weatherill, supra; South Australian Law Reform Institute, Audit Paper: Discrimination on the Grounds of Sexual Orientation, Gender, Gender Identity and Intersex Status in South Australian Legislation 11 (Sept. 2015), Adelaide Law School website.)

The Relationships Register Bill 2016 (SA) contains additional amendments to implement some of these recommendations, including “expanding access to assisted reproductive treatment and surrogacy services to people regardless of their sexual orientation or relationship status.”  (Weatherill, supra.)  Other amendments have also been passed in response to the review.  (Press Release, Jay Weatherill, Milestone Bill Passed in State Parliament to Help Remove Discrimination from SA Laws (July 29, 2016).)

National Developments Related to Same-Sex Marriage

Under the Australian Constitution, the Federal Parliament has the power to enact legislation related to “marriage” in Australia.  (Commonwealth of Australia Constitution Act 1900, s 51(xxi), Federal Register of Legislation website.) Some states and territories have indicated a willingness to pass legislation allowing same-sex marriages, but the High Court of Australia ruled in 2013 that one territory’s legislation on this issue was invalid because it was inconsistent with the federal Marriage Act.  (Kelly Buchanan, Australia: High Court Strikes Down Territory’s Same-Sex Marriage Law, GLOBAL LEGAL MONITOR (Dec. 19, 2013).)

Changing the federal law to allow for same-sex marriage has been a matter of debate for a number of years.  Prior to the federal elections on July 2, 2016, the leaders of both major parties promised to take action on the issue.  The leader of the Labor Party, which remained the opposition party following the election, stated that the first bill that he would introduce in the new Parliament would be a bill to amend the Marriage Act to legalize same-sex marriage.  (James Massola, Federal Election 2016: Same-Sex Marriage Will Be My First Bill, Opposition Leader Bill Shorten Promises, SYDNEY MORNING HERALD (June 29, 2016).)  The Liberal Party leader, and current Prime Minister, promised that a plebiscite would be held on the issue.  (James Massola & Mark Kenny, Federal Election 2016: Australian Voters Overwhelmingly Back Malcolm Turnbull’s Plebiscite Policy, SYDNEY MORNING HERALD (July 1, 2016).)

A bill to establish the framework for a compulsory national vote on allowing same-sex marriage was introduced in the Federal Parliament on September 14, 2016.  (Plebiscite (Same-Sex Marriage) Bill 2016, Australian Parliament website (last visited Oct. 6, 2016).)  Those opposed to the bill have raised concerns that a plebiscite could lead to a divisive and harmful debate, that a “yes” vote may still not result in legislative changes, and about the high cost of holding such a vote.  (See, e.g., Tom McIlroy, Prominent LGBTI Australians Call for Same-Sex Marriage Plebiscite to Be Scrapped, SYDNEY MORNING HERALD (Sept. 11, 2016).)  It is unclear at this stage whether there will be sufficient support in Parliament to pass the bill.  The Labor Party is expected to adopt a position on the bill at its caucus meeting on October 11.  (Michael Koziol, D-Day Looms for Same-Sex Marriage Plebiscite as Coalition and Labor Prepare to Meet on Monday, SYDNEY MORNING HERALD (Sept. 23, 2016).)