CHAPTER 1
Introduction
Referral of the inquiry
1.1
The Marriage Equality Amendment Bill 2010 is a private senator's bill
that was introduced into the Senate by Senator Sarah Hanson-Young from the
Australian Greens on 29 September 2010.[1]
1.2
On 8 February 2012, the Senate referred the Marriage Equality Amendment
Bill 2010 (Senator Hanson-Young's Bill) to the Legal and Constitutional
Affairs Legislation Committee (committee) for inquiry and report by 25 May
2012.[2]
The reporting date was subsequently extended to 6 June 2012.[3]
On 31 May 2012, the committee advised the Senate in an interim report
that it intended to present its final report by 25 June 2012.[4]
Purpose of the bill
1.3
Senator Hanson-Young's Bill would amend the current definition of
marriage in the Marriage Act 1961 (Cth) (Marriage Act) – 'the union of a
man and a woman to the exclusion of all others, voluntarily entered into for
life'[5]
– to 'the union of two people, regardless of their sex, sexual orientation or
gender identity, to the exclusion of all others, voluntarily entered into for
life'.[6]
1.4
In her second reading speech, Senator Hanson-Young stated that the purpose
of the bill is 'to provide equality for same-sex couples...[by removing] discrimination
under the Marriage Act so that while marriage is still a union between two
consenting adults, it is not defined by gender'.[7]
1.5
Section 3 of Senator Hanson-Young's Bill reflects this intention,
setting out the objects of the bill:
-
to remove from the Marriage Act discrimination against people on
the basis of their sex, sexual orientation or gender identity; and
-
to recognise that freedom of sexual orientation and gender
identity are fundamental human rights; and
-
to promote acceptance and the celebration of diversity.
Provisions of the bill
1.6
The key provision in Senator Hanson-Young's Bill is item 1 of
Schedule 1, which repeals the current definition of marriage in the
Marriage Act and substitutes the new definition.
1.7
Item 5 of Schedule 1 of Senator Hanson-Young's Bill repeals section 88EA
of the Marriage Act. Section 88EA provides that certain unions are not marriages:
specifically, a union solemnised in a foreign country between a man and another
man, or a woman and another woman, must not be recognised as a marriage in
Australia.
1.8
Consequential amendments in items 2, 3, 4 and 6 of Schedule 1 change
references in the Marriage Act to reflect the amended definition of marriage in
item 1 of Schedule 1. For example, subsection 46(1) of the
Marriage Act requires that, before a marriage is solemnised by, or in the presence
of, an authorised celebrant (not being a minister of religion of a recognised
denomination), the celebrant shall say a specific form of words to the parties
getting married to explain the nature of marriage. The specific form of words
the celebrant is required to say under subsection 46(1) includes the
statement that marriage is a union of 'a man and a woman'. Item 3 of
Schedule 1 amends the words that the celebrant is required to say to the
parties, replacing 'a man and a woman' with the words 'two people'.
Other marriage equality bills before parliament
1.9
There are currently two other bills before the parliament containing
proposed amendments to the Marriage Act that would allow for marriage equality
for same-sex couples: the Marriage Amendment Bill 2012, introduced into
the House of Representatives by Mr Adam Bandt MP and
Mr Andrew Wilkie MP (Bandt/Wilkie Bill); and the Marriage Equality
Amendment Bill 2012, introduced into the House of Representatives by
Mr Stephen Jones MP (Jones Bill).
1.10
While all three bills before the parliament have the purpose of amending
the Marriage Act to provide for marriage equality, there are some key
differences between the bills.
1.11
The definition of marriage in the Jones Bill is 'the union of two
people, regardless of their sex, to the exclusion of all others, voluntarily
entered into for life'.[8]
The definition of marriage in the Bandt/Wilkie Bill is identical to the
definition in Senator Hanson-Young's Bill.[9]
1.12
Part IV of the Marriage Act deals with the solemnisation of marriages in
Australia. Section 47 of the Marriage Act provides that nothing in Part IV
imposes an obligation on authorised celebrants who are ministers of religion to
solemnise any marriage.[10]
The Jones Bill amends section 47 to insert a subparagraph which explicitly
provides that authorised celebrants who are ministers of religion are not
obliged to solemnise a marriage where the parties to the marriage are of the
same sex.[11]
1.13
The Bandt/Wilkie Bill amends section 47 to clarify that nothing in
the Marriage Act, or any other law, imposes an obligation on a minister of
religion to solemnise any marriage.[12]
Further, the Bandt/Wilkie Bill contains an application clause which clarifies
that, for the avoidance of doubt, the bill does not limit the effect of section
47 of the Marriage Act (but this clause does not actually amend section 47
itself).[13]
Senator Hanson-Young's Bill does not amend section 47 of the Marriage Act in
any way.
1.14
A table comparing all the amendments proposed in each of the three bills
is set out in Appendix 1 to this report.
1.15
The Bandt/Wilkie Bill and the Jones Bill were jointly referred to the
House of Representatives Standing Committee on Social Policy and Legal Affairs
for inquiry and report. That committee tabled its report on 18 June 2012.[14]
Previous Senate committee inquiries on marriage bills
1.16
In recent years, the committee has conducted two inquiries into
legislation which has proposed changes to the definition of 'marriage' in the
Marriage Act.
Inquiry into the Marriage
Legislation Amendment Bill 2004[15]
1.17
On 23 June 2004, the Senate referred the Marriage
Legislation Amendment Bill 2004 (First 2004 Bill) – a bill introduced into
the House of Representatives on 27 May 2004 by the then
Attorney-General, the Hon Philip Ruddock MP – to the committee for inquiry and
report on 7 October 2004.[16]
Schedule 1 of the First 2004 Bill proposed to amend the Marriage Act to:
-
define marriage as the union of a man and a woman to the
exclusion of all others, voluntarily entered into for life; and
-
confirm that unions solemnised overseas between same-sex couples
will not be recognised as marriages in Australia.
1.18
Schedule 2 of the First 2004 Bill proposed amendments to the Family Law Act 1975
to prevent inter-country adoptions by same-sex couples under multilateral or
bilateral agreements or arrangements.
1.19
The Explanatory Memorandum to the First 2004 Bill stated that the
purpose of that bill was:
[T]o give effect to the Government's commitment to protect
the institution of marriage by ensuring that marriage means a union of a man
and a woman and that same-sex relationships cannot be equated with marriage.[17]
1.20
On 24 June 2004, the Marriage Amendment Bill 2004 (Second 2004 Bill),
was introduced by Mr Ruddock into the House of Representatives.[18]
The Second 2004 Bill contained Schedule 1 of the First 2004 Bill (relating to the
amendment of the Marriage Act). The Explanatory Memorandum to the Second 2004
Bill reiterated the purpose of that bill as seeking to ensure that same-sex
relationships were not to be equated with marriage.[19]
1.21
The Second 2004 Bill was passed by the House of
Representatives on the same day it was introduced, was passed by the Senate on
13 August 2004, and received Royal Assent on 16 August 2004.
1.22
The committee received over 16,000 submissions for its inquiry into the
First 2004 Bill. Most submissions related to Schedule 1 of the First 2004
Bill (the marriage aspect). However, as the committee noted:
The effect of the Senate passing the Second [2004] Bill was
that the Senate indicated that it no longer required the committee's advice on
that part of the [First 2004] Bill. In the absence of any further direction
from the Senate, the Committee was only obliged to report on the remaining part
of the [First 2004] Bill, that is, the schedule in relation to adoption by
same-sex couples.[20]
1.23
On 31 August 2004, the Governor-General prorogued the 40th Parliament
and dissolved the House of Representatives. Accordingly, the committee resolved
not to continue its inquiry into Schedule 2 of the First 2004 Bill.[21]
Inquiry into the Marriage Equality
Amendment Bill 2009[22]
1.24
On 24 June 2009, Senator Hanson-Young introduced the Marriage Equality
Amendment Bill 2009 (2009 Bill) into the Senate. The 2009 Bill is identical to
the current version of the bill, apart from some key differences to the
definition of 'marriage'.[23]
On 25 June 2009, the Senate referred the Marriage Equality Amendment Bill
2009 to the committee for inquiry and report by 26 November 2009.[24]
The committee received in excess of 28,000 submissions for the 2009 inquiry:
approximately 11,000 in favour of the bill; and 17,000 opposed to it.[25]
1.25
In its report, the committee recommended that the 2009 Bill should not
be passed (Recommendation 3). The committee also recommended:
-
that the government review (by reference to the Australian Law
Reform Commission, or some other appropriate mechanism) relationship
recognition arrangements with the aim of developing a nationally consistent
framework to provide official recognition for same-sex couples and equal rights
under federal and state laws (Recommendation 1);[26]
and
-
that the Department of Foreign Affairs and Trade issue
Certificates of
Non-Impediment to couples of the same sex on the same basis as they are issued
for couples of different sexes (Recommendation 2).[27]
1.26
In February 2010, the Senate voted on the 2009 Bill, and it was
defeated.[28]
1.27
The committee notes that the Australian Government has implemented
Recommendation 2 of the committee's report, which will enable same-sex couples
to take part in a marriage ceremony overseas and to be recognised as being
married according to the laws of that country.[29]
Same-sex law reforms
1.28
In 2008, the Australian Government amended 85 Commonwealth laws, to eliminate
discrimination against same-sex couples and their children in a wide range of
areas, including social security, taxation, Medicare, veterans' affairs,
workers' compensation, educational assistance, superannuation, family law and
child support. The aim of the reforms was to ensure that same-sex couples and
their families are recognised and have the same entitlements as opposite-sex de
facto couples.[30]
1.29
These reforms did not include amending the Marriage Act.
Conduct of the current inquiry
1.30
The committee advertised the current inquiry in The Australian on
15 and 29 February, and 14 March 2012. Details of the
inquiry, including links to the bill and associated documents, were placed on
the committee's website at www.aph.gov.au/senate_legalcon. The committee also specifically
invited a number of organisations and individuals to make submissions. The
closing date for submissions was 2 April 2012.
1.31
The committee held public hearings in Sydney on 3 May 2012,
and in Melbourne on 4 May 2012. A list of witnesses who appeared at
the hearings is at Appendix 3, and copies of the Hansard transcripts are
available through the committee's website.
Numbers, categorisation and
publication of submissions
1.32
The committee received approximately 75,100 submissions by midnight on
2 April 2012 (the closing date for submissions): of these 43,800 supported
the bill and 31,300 opposed it.[31]
Between 3 April 2012 and 25 June 2012 (the reporting date
for the inquiry), the committee received an additional 4,100 submissions, of
which 2,600 supported the bill and 1,500 opposed it. This amounts to 79,200 submissions
in total: 46,400, or approximately 59 per cent, supporting Senator
Hanson-Young's Bill; and 32,800, or approximately 41 per cent, opposing it. This
is a record number of submissions for a Senate committee inquiry.
1.33
Due to the unprecedented number of submissions received, along with
obvious limitations on committee resources and staffing, it was not feasible to
publish all submissions on the committee's website. Accordingly, the committee made
the following decision: all submissions received from organisations would be
published on the website, along with a selection of submissions from
individuals which represented a broad range of views indicative of the types of
arguments received. The committee also decided to publish an equal number of
individual submissions supporting and opposing the bill.
1.34
In total, the committee published 360 submissions: 125 submissions
from organisations; 116 submissions from individuals supporting the bill; 116
submissions from individuals opposing the bill; and three submissions from
individuals or organisations presenting a position which neither supported nor
opposed the bill. The submissions published on the committee's website are
listed at Appendix 2 to this report.
1.35
For the purposes of the committee's administrative processes, the
committee resolved that submissions that were not published on the website would
be categorised as: form letters (or variations of form letters); or short or
general statements. A submission was categorised as a form letter where it
contained a specific, or easily identifiable, template of words. A submission
was categorised as a variation to a form letter where the template was modified
in some way but could still be identified as a particular type of form letter,
or where the template was supplemented with additional material, such as a
personal story or other original content.
1.36
Of submissions received by midnight on 2 April, most were categorised as
various types of form letters, or variations thereof: 43,000 form letters in
support of the bill, and 24,200 form letters opposing it (a total of 67,200). A
large number of form letters in support of the bill contained lengthy and
detailed personal stories which set out the experiences of same-sex couples (typically
related by them or their friends or relatives) and explanations of what marriage
equality means to them.
1.37
The remaining submissions received by midnight on 2 April (that is,
those submissions that were not published on the committee's website or did not
fall neatly within a form letter type) were categorised as short or general
statements (600 in support of the bill, and 6,900 opposing it). Many of
the submissions categorised as short or general statements in opposition to the
bill were only one or two sentences in length or simple short paragraph
statements of opposition to the bill.
1.38
The committee did not further categorise the submissions it received
after the closing date for submissions into form letters and short or general
statements, and so does not have a further breakdown of figures beyond 'for'
and 'against' for those submissions received between 3 April and 25 June 2012.
Categorisation system and
'weighting' of submissions
1.39
The committee notes comments made by certain witnesses during the course
of the inquiry that those submissions comprising the category of short or
general statements represent 'considered' submissions,[32]
as opposed to form letters. The committee wishes to clarify that such assertions
are not correct. The separation of submissions into form letters and
short or general statements was simply an administrative system of
categorisation, designed to streamline some of the committee's internal
document-handling processes in an inquiry in which the volume of submissions –
and associated administration – created an enormous workload for committee
staff.
1.40
The committee wishes to state for the record that, for the purposes of its
deliberations, all submissions are treated the same and there is no 'weighting',
or greater value, placed on submissions simply because of the format in which
they are received. This is the case for each and every inquiry conducted by the
committee and, despite the volume of submissions received for this inquiry, the
committee does not believe that there is any reason that a different
process should apply in this case.
1.41
The committee strongly refutes assertions that one type of submission is
'considered' or deserves a heavier weighting simply because it has been
categorised for the committee's administrative purposes as something other than
a form letter.
1.42
Further, the committee would like to put on the record a statement about
how it conducts its inquiries. The conduct of the committee's inquiries is a
matter for the committee, and only the committee, to determine in each case. In
particular, the acceptance, methods of processing and publication, and
deliberations on the treatment of submissions and the weighting of evidence,
are all matters for the committee. Since it is for the committee to determine
how it conducts its inquiries, it is entirely inappropriate for anyone to
purport to dictate to the committee the manner in which it should carry out its
business.
Orchestrated submission campaigns
and role of committee
1.43
The committee also wishes to correct certain claims relating to the
inquiry – namely, that the inquiry was 'reduced...to the status of a cheap
public poll'.[33]
For the record, the establishment of this inquiry was in no way different to
the establishment of any other Senate committee inquiry. In this inquiry, however,
the committee's usual submission process was targeted by orchestrated email
campaigns facilitated by groups on both sides of the debate. Most of these
emails were generated by external websites – whereby forms could be filled out
and automatically sent to the committee's email address – or were encouraged through
identified campaigns which directed submitters to send submissions to the
committee's email address.[34]
1.44
Despite the fact that both sides of the debate appeared to treat the
committee's submission process as a 'numbers game', the committee rejects any
characterisation of its inquiry as a 'cheap public poll'. The role of the
committee in this inquiry, and every other inquiry, is to inquire into and
report on the provisions of specific legislation, and policy issues related to
that legislation. This involves detailed and comprehensive consideration,
examination, and analysis of the validity and merits of all relevant evidence. The
committee's role is not to record its support or opposition to legislation
based on the numbers of submissions received.
Validity of submissions
1.45
The committee considers that the majority of submissions, including form
letters, that it received from individuals during this inquiry were legitimate
and from genuine persons. The committee decided that submissions that contained
what were obviously 'false' names, or invalid email or other addresses, would
not be accepted; and, as far as possible, duplicate and multiple submissions from
the same individuals, as well as anonymous submissions, would be eliminated and
not included in the final count.[35]
Submissions would also be invalidated in cases where they could not be accessed
(that is, where an electronic document could not be opened).
Scope of this report
1.46
The committee's report is structured in the following way: chapter 2 discusses
various policy arguments in support of, and in opposition to,
marriage equality in Australia; chapter 3 examines the key issues raised
during the committee's inquiry in relation to specific aspects of Senator
Hanson-Young's Bill and its constitutional validity; and chapter 4 sets out the
committee's views and recommendations.
Note on terminology
1.47
The purpose of Senator Hanson-Young’s Bill is to provide for marriage
equality – that is, legislative reform that allows couples who are currently
unable to marry because of their sex, sexual orientation or gender identity, to
marry under the Marriage Act. The committee prefers the term 'marriage equality'
to
'same-sex marriage' in this context. However, the committee has used the term
'same-sex marriage' in order to distinguish 'marriage' as it is currently
defined under the Marriage Act as between a man and a woman ('traditional'
marriage). The committee has also retained the term 'same-sex marriage' where
it is used in submissions or by witnesses, and where the committee is referring
to that evidence.
1.48
The committee also refers to 'same-sex couples' as those couples who are
currently prohibited from marrying under the Marriage Act due to their sex,
sexual orientation or gender identity. The committee notes, however, that in
using this terminology transgender and intersex persons who may not be in a 'same-sex'
relationship are also affected by the current exclusion constraining access to
marriage.
1.49
The committee uses the term 'LGBTI' for Lesbian, Gay, Bisexual,
Transgender, and Intersex persons. The committee acknowledges that the use of
this term is disputed but uses the term in recognition of the fact that
marriage equality is an issue across the broader LGBTI community.
Note on references
1.50
References to the committee Hansard are to the proof Hansard.
Page numbers may vary between the proof and the official Hansard
transcript.
Acknowledgement
1.51
The committee thanks those organisations and individuals who made
submissions and gave evidence at the public hearings.
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