The recent referendum on same sex marriage in Ireland has brought the issue to the fore again in Australia. There is now much speculation, fuelled by the introduction of the Marriage Amendment (Marriage Equality) Bill 2015 by Labor leader Bill Shorten on 1 June 2015, that same sex marriage may be a reality for couples in Australia in the near future.

Mr Shorten has described the legalisation of same sex as “bigger than politics” and declared “it is time” for all Australians to embrace marriage equality. Prime Minister Tony Abbot noted that same sex marriage is a “significant issue”, but that it was not the focus of the current government.

Regardless of political support for same sex marriage, a 2014 Crosby Textor poll found around three quarters of Australian are in support of its legalisation.

Current definition of “marriage” in Australia

Marriage” is defined in the Marriage Act 1961 (Cth) (“the Marriage Act”) as meaning “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.

Interestingly, the originally enacted Marriage Act of 1961 did not contain a definition of marriage. The definition of marriage seen in the current Act was inserted in 2004 by the Marriage Amendment Act 2004 (Cth) (“the amending Act”).

Up until that point, the Marriage Act incorporated an English case law definition of marriage by providing that celebrants were to “explain” the nature of the marriage relationship to the parties to be married. Celebrants were required to say words to the effect of “marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.

The legislative approach to same sex relationships so far

Contemporaneous with the insertion of a proscriptive definition of marriage into the Marriage Act, the amending Act made another significant addition in 2004. Australian Parliament was seemingly concerned that same sex couples might travel from Australia overseas in order to marry in a country permitting same sex marriage. A new section was therefore inserted to specifically exclude validly contracted foreign marriages from being recognised in Australia. Section 88EA of the Marriage Act reads:

 "A union solemnised in a foreign country between:

(a) a man and another man; or

(b)  a woman and another woman;

must not be recognised as a marriage in Australia."

Along with the Marriage Act now defining marriage as existing exclusively between a man and a woman, the newly inserted section unambiguously illustrated that Australia would refuse to recognise same sex marriages entered into under the laws of another country. 

In the time since the 2004 amendments to the Marriage Act there have been numerous attempts to introduce Bills to allow same-sex marriage, including the:

  • Same-Sex Marriages Bill 2006;
  • Marriage (Relationships Equality) Amendment Bill 2007;
  • Marriage (Relationships Equality) Amendment Bill 2008;
  • Marriage Equality Amendment Bill 2009;
  • Marriage Equality Amendment Bill 2010;
  • Marriage Equality Amendment Bill 2012
  • Marriage Amendment Bill 2012;
  • Marriage Act Amendment (Recognition of Foreign Marriages for Same Sec Couples) Bill 2013; and
  • Marriage Equality Amendment Bill 2013.

The Bills outlined above were all voted down. Several other Bills, including the Freedom to Marry Bill 2014 and the Recognition of Foreign Marriages Bill 2014 have been introduced but await debate in Parliament.

The majority of the aforementioned Bills sought to repeal the current definition of marriage as contained in the Marriage Act and replace it with a wider definition such as “marriage means the union of two people, regardless of their sex, sexuality or gender identity, voluntarily entered into for life”.

In October 2013, the Australian Capital Territory legalised same sex marriage by introducing the Marriage Equality (Same Sex) Act 2013 (ACT). The legislation was subsequently held to be constitutionally invalid due to inconsistency with the Marriage Act 1961 (Cth). By way of explanation, the Commonwealth is given power by the Constitution to have exclusive jurisdiction over the formation of marriages in Australia. States and Territories therefore do not have the power to legislate with respect to marriage, including same sex marriage.

The position in Queensland

In 2011, the Civil Partnerships Bill 2011 was passed to allow for couples including same sex couples who were Queensland residents to register their relationship as a “civil partnership”. This relationship could be formalised in a civil partnership declaration ceremony. A court application was required to dissolve a civil partnership.

The Liberal National Party subsequently passed a Bill to rename civil partnerships “registered relationships”. The option to have a civil partnership declaration ceremony was removed. The procedure for dissolving a civil partnership was altered to allow couples to simply de-register the partnership rather than go through any court processes. Jarrod Bleijie, the Attorney General at the time, explained that changes were made to ensure the effect of the legislation did not mimic marriage and divorce arrangements. As of 2015, the new Labor government has indicated they intend to reinstate the rights couples, including same sex couples, had under the original civil partnership legislation.

Same sex marriage in other countries

Since 2001 same sex marriage has been legalised in 21 countries. These countries include the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, Uruguay, New Zealand, France, Brazil, England, Wales, Luxembourg and Scotland. Same sex marriage is also legal in 37 states of the United States.

Is it time?

Clearly, other countries have an appetite for same sex marriage. The polls would suggest that Australia, too has that appetite.

Whether or not “it is time”, as asserted by Mr Shorten, for Australia to legalise same sex marriage will soon be tested in Parliament.