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Australia: Same-Sex Marriage Bill Passes

(Dec. 13, 2017) On December 7, 2017, the Australian House of Representatives (lower house) voted to pass the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, which legalizes same-sex marriage nationwide, with only four members voting against the legislation. (Marriage Amendment (Definition and Religious Freedoms) Bill 2017, PARLIAMENT OF AUSTRALIA (last visited Dec. 7, 2017).) The Senate had previously voted on the same legislation on November 29, 2017. The Governor General signed the Bill into law on December 8, 2017. (Id.) The amendments went into effect at midnight, with couples able to lodge a Notice of Intended Marriage form from December 9, 2017, starting a one-month notice period. Therefore, the first same-sex marriages can take place on January 9, 2018. (Louise Yaxley, Same-Sex Marriage Signed into Law by Governor-General, First Weddings to Happen from January 9, ABC NEWS (Dec. 8, 2017).)

The Bill was introduced in the Parliament on November 15, 2017, the same day that the results of a non-binding “postal survey” were announced, with 61.6% of participants voting in favor of allowing same-sex couples to marry. (Survey Results, AUSTRALIAN MARRIAGE LAW POSTAL SURVEY, AUSTRALIAN BUREAU OF STATISTICS (ABS) (last visited Dec. 7, 2017).) It amends the definition of marriage in the Marriage Act 1961 (Cth) by removing “a man and a woman” and replacing this phrase with “2 people.” (Marriage Amendment (Definition and Religious Freedoms Bill 2017 (Cth) [text of the Bill], sch 1 cl 3, FEDERAL REGISTER OF LEGISLATION.) It also recognizes foreign same-sex marriages in Australia.

In addition, the Bill amends the Marriage Act and the Sex Discrimination Act 1984 (Cth) “to provide protections for religious freedom in respect of marriage” by

  • allowing ministers of religion to refuse to solemnise a marriage in conformity with their religion’s doctrine, their religious beliefs or in order to avoid injury to the susceptibilities of their religious community
  • creating a new category of ‘religious marriage celebrants’ who can refuse to solemnise a marriage where their religious beliefs do not allow them to do so
  • allowing bodies established for religious purposes to refuse to provide facilities, goods and services for marriages on religious grounds. (Mary Anne Neilson, Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (Bills Digest No. 54, 2017-18, Nov. 24, 2017); see also Marriage Amendment (Definition and Religious Freedoms) Bill 2017 – Explanatory Memorandum, FEDERAL REGISTER OF LEGISLATION.)

Background

The legal status of same-sex relationships has been the subject of a long-running debate in Australia. In 2004, the Parliament passed the Marriage Amendment Act 2004 (Cth), which inserted, for the first time, a definition of “marriage” into the Marriage Act 1961 (Cth). (Marriage Amendment Act 2004 (Cth), FEDERAL REGISTER OF LEGISLATION; Marriage Amendment Bill 2004, PARLIAMENT OF AUSTRALIA (last visited Dec. 7, 2017); Kim Haines, Marriage Amendment Bill 2004 (Bills Digest No. 5 2003-04, July 20, 2004).) Marriage was defined as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” (Marriage Act 1961 (Cth) s 5, FEDERAL REGISTER OF LEGISLATION.) The 2004 amendments also inserted a provision to prohibit the recognition in Australia of same-sex marriages performed in other countries. (Id. s 88EA.)

Since the adoption of the 2004 amendments, “23 bills dealing with marriage equality or the recognition of overseas same-sex marriages have been introduced into the federal Parliament,” with three coming to a vote in the Senate, and one in the House. (Deirdre McKeown, Chronology of Same-Sex Marriage Bills Introduced into the Federal Parliament: A Quick Guide (Parliamentary Library, Dec. 1, 2017); Kelly Buchanan, Australia: Australian Parliament Votes Down Two Marriage Equality Bills, GLOBAL LEGAL MONITOR (Sept. 26, 2012).)

Under the Australian Constitution, the federal Parliament has the power to legislate with respect to marriage. (Commonwealth of Australia Constitution Act 1900, s 51(xxi).) This power is held concurrently with the states but state legislation cannot be inconsistent with provisions enacted at the federal level. In recent years, some Australian jurisdictions have taken their own actions to give legal recognition to same-sex relationships. The Australian Capital Territory attempted to legalize same-sex marriage, but the relevant legislation was struck down by the High Court of Australia in 2013 for being inconsistent with the federal marriage law. (Kelly Buchanan, Australia: High Court Strikes Down Territory’s Same-Sex Marriage Law, GLOBAL LEGAL MONITOR (Dec. 19, 2013); Kelly Buchanan, Australia: Bill to Establish State Relationship Register for Same-Sex Couples Introduced, GLOBAL LEGAL MONITOR (Oct. 7, 2016).) At the federal level, in 2008 and 2009, various laws were amended to provide for equal entitlements and responsibilities for people in same-sex relationships. (Same-Sex Relationships (Equal Treatment in Commonwealth Laws–General Law Reform) Act 2008 (Cth), FEDERAL REGISTER OF LEGISLATION; Same-Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Act 2008 (Cth), FEDERAL REGISTER OF LEGISLATION.)

Australian Marriage Law Postal Survey

Following the legalization of same-sex marriage in several other countries in recent years, the debate in Australia intensified. The Coalition, which was in government during the previous Parliament and again following the July 2016 election, adopted a policy of putting the question to a popular vote. In August 2017, the government announced that it would seek to hold a compulsory in-person plebiscite on same-sex marriage on the same terms as the Plebiscite (Same-Sex Marriage) Bill 2016, which had been rejected by the Senate in November 2016. (Plebiscite (Same-Sex Marriage) Bill 2016, PARLIAMENT OF AUSTRALIA (last visited Dec. 7, 2017).) However, if this bill failed to pass on a second attempt, a voluntary postal plebiscite would be held instead. (Press Release, Mathias Cormann, Commitment to a National Plebiscite on Same Sex Marriage (Aug. 8, 2017).) The government-initiated motion in the Senate to reopen a debate on the 2016 bill was subsequently defeated on August 9, with a vote of 31-31. (Commonwealth, Parliamentary Proceedings (Hansard), Senate, 5135-5145, 9 August 2017.) On that day, “the Treasurer, under the Census and Statistics Act 1905, directed the Australian Statistician to collect and publish statistical information from all eligible Australians on the Commonwealth Electoral Roll, about their views on whether or not the law should be changed to allow same-sex couples to marry.” (About: Introduction, AUSTRALIAN MARRIAGE LAW POSTAL SURVEY, ABS (last visited Dec. 7, 2017).) The Minister for Finance allocated AU$122 million to the ABS to carry out the survey. (Nicholas Horne & Daniel Weight, Voluntary Postal Poll on Same-Sex Marriage, FLAGPOST (Aug. 10, 2017).)

Those opposed to holding a public vote on the question of same-sex marriage argued that it would be expensive, that there was no guarantee that Parliament would act on the result, and that it risked increasing divisiveness and homophobic rhetoric. They also argued that “human rights issues affecting a minority should be decided by a representative Parliament and that Parliament has not in the past and should not now, abrogate its responsibilities on important human rights issues.” (Mary Anne Neilson, Plebiscite (Same-Sex Marriage) Bill 2016, at 7 (Bills Digest No. 22, 2016-17, Oct. 11, 2016).)

Two actions against the postal survey were brought in the High Court, with the plaintiffs claiming, among others, that the appropriation of public funds for the survey was unlawful and also that the Treasurer did not have authority to direct the ABS to carry out the survey. The Court dismissed one of the cases and rejected the second on its merits on September 7, 2017. (Press Release, High Court of Australia, Andrew Damien Wilkie & Ors v The Commonwealth of Australia & Ors; Australian Marriage Equality Ltd & Anor v Minister for Finance Mathias Cormann & Anor [2017] HCA 40 (Sept. 28, 2017); Melissa Davey & Paul Karp, Same-Sex Marriage Postal Survey Is Lawful, High Court Finds, GUARDIAN (Sept. 7, 2017).)

The survey form was sent to eligible registered voters from September 12, 2017; people had until November 7 to send in their completed forms. The survey form contained one question: should the law be changed to allow same-sex couples to marry?, with respondents instructed to indicate yes or no to it by marking the appropriate response box, and then return the form using the pre-paid envelope.  (Survey Process, AUSTRALIAN MARRIAGE LAW POSTAL SURVEY, ABS (last visited Dec. 8, 2017).) Responses were received from 12,727,920 people, which equated to 79.5% of eligible voters. (About: Introductionsupra.) During the polling period, there were active campaigns for both the “yes” and the “no” votes. (Same-Sex Marriage Survey: ‘Yes’ and ‘No’ Campaigns Ramp Up Across Australia, SBS NEWS (last updated Sept. 23, 2017).)

Consideration of Exposure Draft of the Bill

As part of the preparation for the plebiscite, while the original authorizing legislation was before the Parliament, an exposure draft of a same-sex marriage bill was released by the government for discussion on October 10, 2016.  The Senate voted to establish a select committee to consider the draft legislation, with particular reference to religious freedom. The committee received more than 400 submissions and held three public hearings in different cities. It completed its report on February 15, 2017. (Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill, PARLIAMENT OF AUSTRALIA (last visited Dec. 8, 2017).)

The committee “reached agreement on several issues,” including:

  • ministers of religion should be able to refuse to marry same-sex couples
  • civil marriage celebrants should be required to uphold the law and marry same-sex couples if same-sex marriage is legalised in Australia
  • a separate category of ‘religious marriage celebrant’ should be created to allow marriage celebrants performing ceremonies to refuse to marry same-sex couples on religious grounds
  • that any exemptions for religious organisations in relation to same-sex weddings should be precisely defined. (Neilson, Bills Digest No. 54, supra.)

The committee “did not recommend an exemption from anti-discrimination law for individuals or commercial businesses with a conscientious objection to providing goods and services for same-sex weddings.” (Id.)

Following the select committee’s report, a group of senators worked on developing a bill that was essentially based on the original exposure draft but incorporated the recommendations of the committee. It was this bill that was introduced in November 2017. (Id.)