History of same-sex marriage in Australia

The history of same-sex marriage in Australia dates from its express prohibition by the Howard Government in 2004 to numerous subsequent attempts to legalise it at both federal and state/territory levels, all of which have been unsuccessful as of 2016. Although the Australian Capital Territory did succeed in passing a same-sex marriage law in 2013, this was struck down by the High Court on the basis that federal laws prohibiting same-sex marriage would prevail over any inconsistent state or territory laws that allowed same-sex marriage.[1]

There have been several attempts to legalise same-sex marriage nationwide in both houses of the Federal Parliament. The current Prime Minister, Malcolm Turnbull, supports same-sex marriage.[2][3] The Turnbull Government went to the 2016 federal election with a policy to put the issue of same-sex marriage to a plebiscite, and was narrowly re-elected, though as of November 2016 it appears unlikely the plebiscite will proceed due to it having been rejected by the upper house of Parliament.[4]

Federal law

The following details the history of same-sex marriage law reform attempts in federal parliament.[5][6]

40th, 41st and 42nd Parliaments (2004–10)

In the later stages of the 40th Parliament, public attention increased with respect to same-sex marriage due to court decisions in Massachusetts and Canada legalising same-sex marriage. In an attempt to prevent any judicial imposition of same-sex unions in Australia, the Howard Government introduced the Marriage Amendment Act in the Parliament on 27 May 2004.[7] The amendment specified that marriage, undefined in the Act, would be defined as a "union of a man and a woman to the exclusion of all others" and that foreign same-sex marriages would not be recognised as such in Australia.[8] Additional reforms to the Family Law Act prevented same-sex couples from being eligible adoptive parents for children in inter-country adoption arrangements,[8] though these restrictions were eventually relaxed in 2014.[9] The amendment passed the parliament on 13 August 2004[10] and went into effect on the day it received Royal Assent, 16 August 2004.[11]

Following the Government's amendment to the Marriage Act banning same-sex marriage, the first attempts at reform came via private members bill's raised in the Senate by Michael Organ of the Greens and Natasha Stott Despoja and Andrew Bartlett of the Democrats.[12] Organ introduced the Same Sex Relationships (Ensuring Equality) Bill 2004 and the Democrats the Same-Sex Marriage Bill 2006 in the following parliament. A further four bills were introduced in the Senate through the period of the Howard and Rudd governments, though all were either rejected or lapsed in parliament.[12] Greens senator Sarah Hanson Young's 2009 bill to legalise same-sex marriage was the first marriage equality bill reviewed by a parliamentary committee. In November 2009 the Legal and Constitutional Affairs Legislation Committee, despite recommending reforms designed to create a nationally consistent recognition scheme for same-sex relationships, recommended Ms Hanson-Young's Marriage Equality Amendment Bill 2009 not be passed.[13] In the lead-up to the committee's decision, the largest protests for same-sex marriage in the nation's history took place on 1 August 2009, in a variety of cities across Australia.[14] The bill did reach a vote in the Senate on 25 February 2010. The bill was rejected by a margin of 45 votes to 5, with only the Greens senators voting in favour of the bill and many Senators not in attendance.[15][16]

43rd Parliament (2010–13)

In the election campaign of 2010, then-Prime Minister Julia Gillard, in an interview with the Australian Christian Lobby, stated that her government would not sponsor or support any bill to legislate for same-sex marriage if successful at the election.[17] Despite narrowly retaining government, the Labor Party were quickly forced into an internal debate on the issue, with several party members publicly speaking out against the party and the leader's opposition to same-sex marriage.[18] At the December 2011 National Conference, Labor overwhelmingly endorsesd a change to the party platform, in support of legalising same-sex marriage. Prime Minister Gillard, who had stated her personal objection to same-sex marriage, sponsored a motion to allow MPs and Senators a free vote on same-sex marriage legislation. The motion passed narrowly by 208 votes to 184.[19][20]

In February 2012, two bills to allow same-sex marriage in Australia were introduced in the 43rd Parliament. The Joint Parliamentary Inquiry into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012 received 276,437 responses, the largest response ever received by a committee of the House of Representatives or Senate. 177,663 respondents were in favour of changing the law to recognise same-sex marriage, 98,164 were opposed to and 610 were unsure.[21]

On 19 September 2012, the House of Representatives voted against passing its same-sex marriage bill by a margin of 98-42 votes.[22] On 20 September 2012, the Senate also voted down its same-sex marriage legislation, by a vote of 41-26.[23] In both instances, the Liberal/National Coalition honoured their 2010 election commitment to vote as a bloc against any same-sex marriage legislation.

Details of 2012 parliamentary vote on proposed legalisation of same-sex marriage
Marriage Amendment Bill 2012
Second Reading in House of Representatives[22][24]
Party Votes for Votes against
Labor (63)
Liberal (44) –
Liberal National (19) –
National (6) –
Country Liberal (1) –
Nationals WA (1) –
Greens (1) –
Katter's Australian (1) –
Independent (4)
Total 42 98
Marriage Amendment Bill (No. 2) 2012
Second Reading in Senate[23][25]
Party Votes for Votes against
Labor (27)
Liberal (21) –
Liberal National (4) –
National (3) –
Country Liberal (1) –
Greens (9) –
Democratic Labour (1) –
Independent (1) –
Total 26 41

In March 2013, former Labor prime minister Kevin Rudd announced his personal support of same-sex marriage.[26] Upon returning to the prime ministership in June, Rudd promised same-sex marriage legislation in the following Parliament if Labor won the 2013 federal election.[27]

44th Parliament (2013–16)

In September 2013, the Tony Abbott-led Liberal/National Coalition comfortably won government at the federal election. Though most Coalition MPs and senators (and Abbott himself) were opposed to same-sex marriage, Abbott stated at the time that the party may consider altering its position to be in favour of a free vote on the matter.[28][29] By December 2013, deputy Labor Opposition Leader, Tanya Plibersek, announced that she would introduce a private member's bill in the Parliament, seeking the assistance and co-sponsorship of Coalition government minister Malcolm Turnbull and a free vote among all parliamentarians.[30] In the same month, the High Court of Australia struck down a law which briefly legalised same-sex marriage in the Australian Capital Territory, on the basis that only the federal parliament, and not a state or territory parliament, had the legal authority to pass such a law.[31]

In November 2014, Liberal Democratic Party senator David Leyonhjelm reintroduced the Freedom to Marry Bill 2014 in the Senate, though by March 2015 Leyonhjelm had deferred the imminent second reading of his bill due to the refusal of the Coalition party room to debate a free vote on the legislation.[32][33]

In May 2015, renewed debate on the issue followed the 2015 Irish constitutional referendum that established marriage equality in Ireland, with several Coalition MPs publicly voicing their support for a free vote on same-sex marriage legislation[34][35][36] and Labor MP Anthony Albanese stating that (contingent on a Liberal Party free vote occurring) "it is my judgment that there are now majorities in favour of marriage equality in both the House of Representatives and the Senate".[37]

Capitalising on the renewed momentum, Labor leader Bill Shorten introduced the Marriage Amendment (Marriage Equality) Bill 2015 to the Parliament on 1 June 2015.[38] Despite several Coalition MPs criticising Shorten for political opportunism,[39] Prime Minister Tony Abbott promised a "very full, frank and candid and decent" debate inside the Liberal Party and also appeared to rule out a referendum on same-sex marriage.[40] Further momentum for same-sex marriage occurred following the U.S. Supreme Court's ruling in Obergefell v. Hodges[41] and in July 2015 details of a cross-party same-sex marriage bill to be introduced to the Parliament later in the year were revealed.[42][43][44]

Also in July 2015, at the Labor Party National Conference, the party passed a platform amendment allowing the continuation of a free vote on same-sex marriage legislation for Labor MPs for the existing parliamentary term and the next. This means that following what is likely to be the 2019 federal election, Labor MPs will be bound by party policy to support same-sex marriage legislation.[45]

On 11 August 2015, Prime Minister Abbott, in response to the cross-party bill to legalise same-sex marriage being introduced to the parliament, called a special joint party room meeting of the Liberal and National parties. The six-hour meeting resulted in 66 Coalition MPs voting against a free vote being held on same-sex marriage legislation and 33 voting in favour of a free vote.[46] Following the meeting, Mr Abbott announced that whilst the Coalition would maintain its position of marriage being defined as a heterosexual union for the duration of the existing parliamentary term, he stated it was his "strong disposition" to hold a national vote on same-sex marriage sometime after the 2016 federal election, either in the form of a plebiscite or constitutional referendum.[47] Labor Party Opposition Leader Bill Shorten argued the proposal was a delaying tactic and would waste money, whilst recommitting to introduce a bill to legalise same-sex marriage within 100 days of taking office if successful at the 2016 federal election.[48] On 17 August 2015, in defiance of Mr. Abbott, Liberal backbencher Warren Entsch introduced the aforementioned private members' bill, saying, "a divided nation is what we will be if we continue to allow discrimination in relation to marriage on the basis of a person's sexuality."[49]

On 14 September 2015, Communications Minister Malcolm Turnbull, a prominent supporter of same-sex marriage, challenged Prime Minister Abbott for leadership of the Liberal Party, and became the 29th Prime Minister of Australia. Same-sex marriage lobby groups subsequently began pressuring Prime Minister Turnbull to allow a free vote on Mr Entsch's private members bill or at least bring forward the proposed national plebiscite to the next election or earlier.[50] Mr Turnbull subsequently stated in Question Time that the policy to have a plebiscite on the issue after the next election would be retained by the Coalition.[3]

The issue soon caused tensions within the government[51][52] with the Assistant Minister for Multicultural Affairs and Social Services Concetta Fierravanti-Wells stating that support of same-sex marriage would "place under threat" some marginal seats held by the Coalition and Liberal senator Dean Smith questioning the precedent a national vote on the issue could set.[53][54] In January 2016 at least two Liberal MPs (Cory Bernardi and Eric Abetz) stated they would be unlikely to vote in favour of same-sex marriage in parliament even if the proposed plebiscite returned a majority yes result.[55]

Parliamentary committees of both the Senate and House of Representatives were sharply divided on the issue. The Senate Legal and Constitutional Affairs Reference Committee formally recommended that a national plebiscite or referendum not be held on the topic of same-sex marriage, though a dissenting opinion of Coalition senators strongly advocated for a plebiscite.[56][57] Similarly, a majority of the Parliamentary Joint Committee on Human Rights upheld same-sex marriage as in accordance with international human rights laws and principles, though a dissenting opinion, again of exclusively Coalition senators, criticised the committee for "erroneous" findings and contended that same-sex marriage would "limit the rights of the child", among other concerns.[58] These Coalition senators were subsequently labelled "bigots scraping the bottom of the barrel" by Greens MP Adam Bandt.[59]

On 12 November 2015, Greens Senator Janet Rice introduced another same-sex marriage bill in the 44th Parliament, though debate on the bill was promptly adjourned and the bill was never read a second time.[60] An attempt by the Labor Opposition to suspend parliamentary business and force an immediate debate on a same-sex marriage bill in the House of Representatives was rejected by the Government on 2 March 2016, the house voting down the motion 83 to 57.[61] On 6 March 2016, Attorney-General George Brandis revealed the government would seek to hold the proposed plebiscite in 2016, following that year's election if the government were re-elected. Brandis stated that, in such an event, a bill to amend the Marriage Act would be introduced to the parliament and that he "would expect there is little, virtually no doubt at all that if the public votes 'yes' the parliament will follow".[62] During the course of the 2016 federal election campaign, several Coalition MP's said they would consider voting 'no' to same-sex marriage in the parliament even if a majority of the national electorate voted in favour, creating a split within the Coalition.[63] The government was narrowly re-elected at the election.[64]

45th Parliament (2016–present)

On 18 July 2016, Prime Minister Turnbull revealed the proposed plebiscite may not occur until the first half of 2017 and left open the possibility of the Senate rejecting legislation to create the plebiscite. Notwithstanding this, Turnbull committed to holding it "as soon as is practicable".[65] The opposition Labor Party supports same-sex marriage in its national platform, though allows its parliamentary members a conscience vote on same-sex marriage legislation.[66] On 20 August 2016, several media outlets reported that the government would announce an intention to hold the plebiscite in February 2017[67][68][69] whilst several Coalition MPs publicly stated that any defeat of legislation to create the plebiscite would result in the end of debate on the issue for at least 3 years.[70] On 26 August 2016, Greens leader Richard Di Natale confirmed that the party, which holds 9 seats in the Senate, would oppose plebiscite-enabling legislation.[71] Three days later, Nick Xenophon confirmed that his party, made up of three Senators and one member of the House of Representatives, would also vote against plebiscite legislation in the parliament, citing the financial cost of the plebiscite and expressing a desire for same-sex marriage legislation to simply be passed in parliament.[72] The decision means that, in order for the plebiscite to proceed, it must now receive the support of the opposition Labor Party, who have yet to formally respond to the proposal but have previously labelled it "a second-best option".[73] On 12 September 2016, two private member's bills legalising same-sex marriage were introduced into the House of Representatives, one by Labor leader Bill Shorten[74] and another by Greens MP Adam Bandt.[75]

On 14 September 2016, Prime Minister Turnbull introduced into the House the Plebiscite (Same-Sex Marriage) Bill 2016, the bill to create the plebiscite. Under the provisions of the legislation, Australian voters would be required to write either "yes" or "no" in answer to the question "Should the law be changed to allow same-sex couples to marry?"[76] Additionally, $15 million of taxpayer funding will be equally distributed to the official "yes" and "no" campaigns.[77] If passed by the parliament, the plebiscite would be held on 11 February 2017.[78] On 11 October 2016, the Labor Opposition announced it had officially resolved to oppose the plebiscite legislation, meaning that as things stand, the legislation lacks majority support in the Senate and the plebiscite will not go ahead.[79] Debate on the Plebiscite (Same-Sex Marriage) Bill 2016 was held in the House between 11–20 October,[80] until the Government moved to end debate on the second reading and move for a vote. The bill passed the House 76–67 votes and moved to the Senate.[81][82] Debate on the bill was held in the Senate throughout the day and evening of 7 November. The bill was defeated in the Senate at the second reading stage by 33 votes to 29.[83][4][84] Following the result in the Senate, Prime Minister Turnbull stated the government had "no plans to take any other measures on this issue".[85]

Details of 2016 Senate vote on same-sex marriage plebisicte
Plebiscite (Same-Sex Marriage) Bill 2016 – Second Reading[86]
Party Votes for Votes against Pairs/Abstentions
Labor (26) –
Liberal (21) –
Greens (9) –
Liberal National (5) – –
One Nation (4) – –
National (3) – –
Xenophon Team (3) – –
Country Liberal (1) – –
Lambie Network (1) – –
Justice (1) – –
Liberal Democratic (1) – –
Total 29 33 13

State and territory law

Status of same-sex unions in Australia.
  Civil or Domestic Partnership
  Defined statewide as "de facto"

States and territories have long had the ability to create laws with respect to relationships, though Section 51 (xxi) of the Constitution of Australia prescribes that marriage is a legislative power of the federal parliament.[87]

In December 2013, the High Court of Australia ruled, in relation to a territory-based same-sex marriage law of the Australian Capital Territory (ACT), that the federal Marriage Act, which defined marriage as the union of a man and woman, precluded states and territories from legislating for same-sex marriage.[1] As a result, only the federal parliament can legislate for same-sex marriage, whilst states and territories almost certainly cannot.

Since the Commonwealth introduced the Marriage Act Cth. 1961, marriage laws in Australia have been regarded as an exclusive Commonwealth power. The precise rights of states and territories with respect to creating state-based same-sex marriage laws have been complicated since the Howard Government amendment to the Marriage Act in 2004 to define marriage as the exclusive union of one man and one woman, to the exclusion of all others.[88] In their December 2013 ruling striking down the ACT's same-sex marriage law, the High Court effectively determined that all laws with respect to marriage were an exclusive power of the Commonwealth and that no state or territory law legalising same-sex marriage or creating any type of marriage could operate concurrently with the federal Marriage Act; "the kind of marriage provided for by the [Marriage] Act is the only kind of marriage that may be formed or recognised in Australia".[1] As a result, the only possible method for same-sex marriage legalisation to occur in Australia is via legislation passed into law by the Federal Parliament only.

Prior to that ruling, reports released by the New South Wales Parliamentary Committee on Social Issues and the Tasmanian Law Reform Institute have found that a state parliament "has the power to legislate on the topic of marriage, including same-sex marriage. However, if New South Wales chooses to exercise that power and enact a law for same-sex marriage, the law could be subject to challenge in the High Court of Australia"[89] and that no current arguments "present an absolute impediment to achieving state-based or Commonwealth marriage equality".[90] With respect to territories, the ACT Government obtained legal advice that its bill seeking to legalise same-sex marriage could operate concurrently with the federal Government's statutory ban on recognising same-sex marriage.[91] The Abbott Government's acting Solicitor-General advised the federal Attorney-General, George Brandis, that the ACT's same-sex marriage law was inconsistent with the federal Government's laws[92] whilst other experts rated the ACT's law as 'doubtful' or impossible to pass judicial scrutiny.[93][94] Those experts were proven correct, when on 12 December 2013, the High Court of Australia struck down the Australian Capital Territory's same-sex marriage law.

Aside from the Australian Capital Territory, Tasmania is the only other state or territory to have passed same-sex marriage legislation in a chamber of its legislature. The state lower house passed same-sex marriage legislation by 13-11 votes in September 2012, though the state upper house subsequently voted against this legislation a few weeks later by a vote of 8-6.[95][96] Both houses have since passed motions giving in-principle, symbolic support for same-sex marriage.[97]

New South Wales amended its law in November 2014 to allow overseas same-sex marriages to be recognised on the state's relationship register.[98][99][100]

As of December 2015, four Australian states (Tasmania, New South Wales, Queensland and Victoria), comprising 80% of Australia's population, recognise same-sex marriages and civil partnerships performed overseas, providing automatic recognition of such unions in their respective state registers.[101]

Australian Capital Territory

On 13 September 2013, the Australian Capital Territory (ACT) Government announced that it would introduce a bill to legalise same-sex marriage, following a decade-long attempt to legislate in the area.[102] "We've been pretty clear on this issue for some time now and there's overwhelming community support for this", Chief Minister Katy Gallagher said. "We would prefer to see the federal parliament legislate for a nationally consistent scheme, but in the absence of this we will act for the people of the ACT. The Marriage Equality Bill 2013 will enable couples who are not able to marry under the Commonwealth Marriage Act 1961 to enter into marriage in the ACT. It will provide for solemnisation, eligibility, dissolution and annulment, regulatory requirements and notice of intention in relation to same-sex marriages."[103] On 10 October 2013, federal Attorney-General George Brandis confirmed that the Commonwealth Government would challenge the proposed ACT bill, stating that the Coalition Government has significant constitutional concerns with respect to the bill.[104] The bill was debated in the ACT Legislative Assembly on 22 October 2013, and passed by 9 votes to 8.[105][106]

Under the legislation, same-sex marriages were legally permitted from 7 December 2013.[107][108][109]

As soon as the ACT act had been passed, the Commonwealth launched a challenge to it in the High Court, which delivered judgment on 12 December 2013.[110][111] As to the relation between the ACT act and federal legislation, the Court found that the ACT act was invalid and of "no effect", because it was "inconsistent", in terms of the Australian Capital Territory Self-Government Act 1988 (Cth), with the federal Marriage Act 1961 (Cth). It was inconsistent both because its definition of marriage conflicted with that in the federal act and because the federal act was exclusive, leaving no room for any other definition in legislation of a state or a territory. However, the Court went on to determine that the word "marriage" in Constitution s51(xxi) includes same-sex marriage, thus clarifying that there is no constitutional impediment to the Commonwealth legislating for same-sex marriage in the future. It can do so by amending the definition of "marriage" in the Marriage Act.

Position of political parties

Coalition

During the Howard Government, Coalition policy was strongly against LGBT rights.[112] In addition to his personal beliefs, Howard used anti-LGBT policies as a wedge issue against the opposition Australian Labor Party.[112] This position persisted until Tony Abbott introduced a policy to hold a plebiscite, which was retained by his successor Malcolm Turnbull.[3] Turnbull was criticised by advocates for maintaining a policy that he had previously opposed for political expediency.[113]

Australian Labor Party

Under the leadership of Mark Latham in 2004, Labor supported the statutory ban on same-sex marriage to appease its right-wing factions and avoid losing electorates in western Sydney.[112] This continued until the 2011 national conference, when the party voted to support same-sex marriage but grant its politicians a conscience vote.[19] At the July 2015 Labor Party National Conference, the party passed a platform amendment allowing the continuation of a free vote on same-sex marriage legislation for Labor MPs until what is likely to be the 2019 federal election, with Labor MPs bound by party policy to support same-sex marriage legislation after that time.[114]

Australian Greens

The Greens have consistently voted in favour of same-sex marriage since 2004, using the tag line "Every vote. Every MP. Every time" in election advertising.[115] They opposed the 2016 plebiscite proposal.[116]

Crossbenchers

The Nick Xenophon Team and Derryn Hinch support same-sex marriage but oppose a popular plebiscite.[116] Jacqui Lambie, the Liberal Democratic Party and Pauline Hanson's One Nation support the plebiscite.[117]

See also

References

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  2. ↑ Stephanie Anderson (6 March 2016). "Same-sex marriage: Federal Government to hold plebiscite by year's end if re-elected". ABC News.
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  5. ↑ Davey, Melissa (15 September 2015). "Queues form outside Malcolm Turnbull's door to push policies". Retrieved 12 September 2016 – via The Guardian.
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  17. ↑ "Julia Gillard's interview with Jim Wallace, head of the Australian Christian Lobby". Vimeo. 4 August 2010.
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  88. ↑ "Marriage Amendment Act 2004". comlaw.gov.au.
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