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Same-sex marriage (SSM) and civil unions in Australia

2013-OCT to now: Marriage equality in Australian
Capital Territory
(ACT) achieved -- for five days.
Greens launch SSM bill in Western Australia.

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This is a continuation from a previous essay.

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Throughout this web site, "SSM" refers to marriages by same-sex couples.
"LGBT" refers to lesbians, gays, bisexuals, transgender persons and transsexuals.
"Natural marriage" means a marriage of one woman and one man.

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2013-OCT-23: Federal Government challenges SSM law in ACT via the High Court:

As soon as the ACT had passed the marriage equality act, a spokesperson for Attorney-General George Brandis confirmed that the Government will request the High Court expedite a hearing into the constitutionality of the legislation. Some observers believe that the ACT law conflicts with the Commonwealth Marriage Act which applies to the entire country and restricts marriage to one woman and one man.

Greens leader Christine Milne said:

"My message to Tony Abbott and George Brandis is get out of the way. You are on the wrong side of history. The wave of public support in favour of equality is unstoppable. Equal marriage is going to happen and a High Court challenge won't stop it."

Shadow Attorney-General Mark Dreyfus was pleased with the new law. He said:

"Good on the ACT Government for moving forward with this. It is a step forward but we need to have this nationally, we need to have a national debate and the place for it is in the national Parliament, not in the High Court of Australia."

Deputy Chief Minister Andrew Barr, who is openly gay, was in tears as he described how important the law is for gays, lesbians, and bisexuals. He said:

"These are reforms that also impact positively on the parents who want their children to live happy, productive and healthy lives without having to experience fear, hate and discrimination," he said.

"[These are] reforms that impact positively on brothers and sisters... who've seen their siblings struggle with the unfairness of discriminatory laws.

"Today, the sacrifice, the suffering, the struggle, and the tireless exertions and passionate concerns of gay and lesbians Canberrans, their parents and their families, finds a voice and finds a champion in this Assembly." 1

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2013-DEC-07: ACT Marriage Equality Act came into effect. The first same-sex marriages solemnized:

In a ceremony outside of Parliament House, Western Australia MP Stephen Dawson married Dennis Liddelow in the first same-sex marriage under the new ACT law. The marriage, and dozens of others on that day were solemnized under a cloud because the federal government has challenged the constitutionality of the ACT law. Their marriages may well be nulled against their wishes. A court ruling was expected on DEC-12.

Simon Corbell, the ACT attorney-general, said

"Regardless of what happens in the high court, the significance of this moment will remain and send a strong signal about what a contemporary 21st century Australia should look like." 2

ACT chief minister Katy Gallagher noted that the response from the public has been overwhelmingly positive. She addressed a comment to those who disagree with marriage equality, saying:

"The world will go on. ... This [law] doesn't affect those people who don't agree with it. It doesn't change their life, it doesn't change their relationships, this is all about making sure everyone is treated equally before the law. For those people who are able to use the laws, the change is profound. ... Just by allowing the marriages for this period of time ... the momentum is there, the world has changed, history has changed and ultimately we will see this, I'm absolutely positive, brought in across the country at some time in the future." 2

Lyle Shelton, spokesperson for The Australian Christian Lobby predicted "big social changes." She said:

"We hear about equal love all the time but we don't hear about what it means for children." Same-sex marriage means same-sex parenting, that means necessarily taking a child from its biological mother or father and giving it to someone else." 2

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2013-DEC-12: High Court rules ACT marriage equality law unconstitutional:

The judges ruled unanimously that the ACT same-sex marriage law conflicts with the federal Marriage Act. Thus the former is of "no effect." The marriages that had taken place in the previous five days no longer have legal status; they have all been nulled against the wishes of the couples. In the same ruling, the high court acknowledged that the federal Government has the authority to pass a national inclusive law that would allow all same-sex and opposite-sex couples to marry.

George Williams, a constitutional law expert from the University of New South Wales, commented that the latter part of the ruling:

"... is a very significant finding and it’s significant because when the federal bills have come into the parliament the ‘no’ people have argued strongly it would be unconstitutional … This clears the way for a federal law."

The court ruling stated that:

"... the object of the ACT act is to provide for marriage equality for same-sex couples and not for some form of legally recognised relationship which is relevantly different from the relationship of marriage which the federal law provides for and recognises."

“Accordingly the ACT act cannot operate concurrently with the federal act. Because the ACT act does not validly provide for the formation of same-sex marriages, its provisions about the rights of parties to such marriages and the dissolution of such marriages cannot have separate operation and are also of no effect.”

Glenda and Jennifer Lloyd, who had married under the ACT law during the five days that it was in effect had tried to prepare themselves for the disappointment in the event that the court ruled their marriage. They said they still felt married, having made a genuine commitment to each other.

Ivan Hinton, who had wed his partner Chris Teoh said it was "personally devastating" to be legally "unmarried" less than a week after their vows. However. he is confident that marriage equality is now unstoppable in Australia.

Williams also said the ruling meant the couples:

“were never married, in effect. ... It obviously adds a personal dimension to the issue, because the the ceremonies they went through [now] have been found to have no legal foundation." 3

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2013-DEC-12: Greens introduce a same-sex marriage bill in Western Australia (WA):

The Hon Lynn MacLaren, MLC in the Greens party, introduced a bill to legalize SSM in the state. She said:

"This bill builds on momentum across Australia to close the gap of inequality once and for all.

The Same-Sex Marriage Bill 2013 will allow the authorisation of celebrants and the registration of same-sex marriages via an amendment to the Births, Deaths and Marriages Registration Act 1998.

It also provides for the dissolution and annulment of same-sex marriages, and for related financial matters via amendments to the Family Court Act 1997. This Bill establishes marriage rights and responsibilities for same-sex couples that other couples have already.

Learning from the experiences in other states, I have introduced a Bill which can survive a High Court challenge.

Like all big achievements, I had a little help from my friends. One of Australia’s leading constitutional lawyers, George Williams AO, and Greens MPs with similar bills in other Australian states, have generously provided guidance.

Same-sex couples in WA who want to be married could look forward to it next year if this bill passes.

I believe that with the new WA Parliament we now have enough support to pass this legislation."

Rodney Croome, national director of Australian Marriage Equality, said:

"AME welcomes Lynn MacLaren's commitment to achieving marriage equality in WA.

We call on supporters of marriage equality across all parties in the WA parliament to join Lynn in co-sponsoring a marriage equality bill." 4

George Williams, a constitutional law expert from the University of New South Wales, said that the WA bill corrects problems in the earlier law passed in the ACT, and has a much better chance of being acceptable to the High Court. He said:

"The main problem was the ACT law set itself up as a full marriage equality law, it piggy-backed on the definition of marriage under the federal statute, it didn't set up a separate state classification for same-sex marriage.

What we can say is it gives (Ms MacLaren's) bill the best possible chance."

Premier Colin Barnett of the WA personally opposes same-sex marriages. Attending the Council of Australian Governments meeting, he said there was a mood for change and added that at some point there would be same-sex marriage in Australia.

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2013-DEC-15: Prime Minister Tony Abbott does not expect federal marriage equality bill:

The prime minister said that he does not expect a same-sex marriage bill to come before federal parliament any time soon.

A senior colleague, Liberal MP Malcolm Turnbull, said that it is likely that the coalition MPs would be allowed a free "conscience" vote on a marriage equality bill is filed. In the past, coalition MPs have been required to vote the party line against SSM, and all bills have failed. He said:

"I think it is likely that we will (have a free vote), but as Tony Abbott has said, it is a decision for the party room, not for him."

Turnbull noted that Australia was lagging behind other English-speaking countries like Canada, New Zealand, the United States, England and Wales. He said:

"... people of the same sex can get married in Auckland and Wellington, Toronto and Ottawa and Vancouver, in New York and Los Angeles, and Baltimore, in Cape Town, but not Australia. It does start to look as if we're the ones out of step."

Tanya Plibersek, the Deputy Labor leader, announced that she will introduce a private member's bill to legalize same-sex marriage, but only if Mr Abbott allows a conscience vote.

According to SkyNews.com:

"Gay marriage advocate Rodney Croome said Mr Turnbull's comments reflected growing support within the coalition for a conscience vote and the principle of marriage equality.

'An increasing number of Australians feel embarrassed by the fact that marriage equality has moved forward in countries that are our closest friends and allies, including New Zealand, the UK, the US and Canada,' Mr Croome said in a statement.

The Greens Sarah Hanson-Young last week introduced a same-sex marriage bill into the Senate." 6

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Commonwealth to launch High Court challenge over ACT same-sex marriage laws," Australian Broadcasting Corp., 2013-OCT-23, at: http://www.abc.net.au/
  2. "Same-sex couples make history with Canberra weddings," The Guardian, 2013-DEC-07, at: http://www.theguardian.com/
  3. Daniel Hurst, "ACT gay marriage law is ruled invalid by high court of Australia," The Guardian, 2013-DEC-12, at: http://www.theguardian.com/
  4. Nadine Walker, "Greens introduce same sex marriage bill in WA," Lynn MacLaren MLC. 2013-DEC-12, at: http://www.lynnmaclaren.org.au/
  5. Nicholas Perpitch, "[WA] Same-sex law 'has better chance," National Affairs, The Australian, 2013-DEC-14, at: http://www.theaustralian.com.au/
  6. "Abbot 'does not expect' marriage bill," Sky News, 2013-DEC-15, at: http://www.skynews.com.au/

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Copyright © 2013 by Ontario Consultants on Religious Tolerance
Originally written: 2013-OCT-23
Latest update: 2013-DEC-18
Assembled by: B.A. Robinson

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