CANBERRA OBSERVED by national correspondentNews Weekly
Greens' bid to legalise overseas same-sex unions rebuffed
, October 11, 2014
Greens Senator Hanson-Young’s bill to legalise same-sex marriages contracted overseas has been rebuffed by the Senate Legal and Constitutional Affairs Committee. Such arrangements are not recognised in Australian law.
Senator Sarah Hanson-Young
The South Australian senator had foreshadowed the legislation before the last election, as a means of re-opening the push for same-sex marriage, which was decisively rejected in 2012. She introduced it last May, and it was referred to a Senate committee for inquiry and report.
The committee’s report, now available on the parliamentary web site, found that the Hanson-Young bill was inconsistent with the Commonwealth Marriage Act, which defines marriage as the union of a man and a woman, voluntarily entered into for life.
The strength of the committee’s findings may ensure that the bill does not get debated in the Senate. Even if it does, the outcome is now a foregone conclusion.
In introducing the bill, Senator Hanson-Young made clear that her intention was to move towards legalising same-sex marriage in Australia. The committee’s rejection of her bill is another setback for the Greens’ long-standing campaign to change the law.
The level of public interest in the inquiry was shown by the fact that there were about 6,800 submissions to the Senate inquiry, two thirds of them against the bill.
The committee commented that “as many witnesses noted, the issue of same-sex marriage has already been considered by the Parliament, and the committee is not persuaded that this inquiry has yielded any new material that speaks to the issue”.
Responding to submissions that suggested that Senator Hanson-Young’s bill was an attempt to achieve a “back-door” recognition of same-sex marriage, the committee said that the issue “should be addressed honestly and directly in the context of wider debate, not through attempts to address the issue incrementally”.
The committee also noted that passage of the bill would legislate “a form of discrimination in that same-sex couples [who were] able to marry overseas would be afforded a different set of rights [from] Australian same-sex couples, who, under domestic law, would be unable to marry”.
It recommended that the bill not be passed “as it appears to have been introduced as a vehicle to progress marriage equality (sic) more generally, rather than the specific amendment proposed”.
One of the concerns raised in many submissions was that the redefinition of marriage would infringe the freedom of belief of those who do not support same-sex marriage.
The Senate report’s discussion of this issue was curiously inconclusive. It quoted submissions by Australian Christian Lobby (ACL), the Australian Family Association and Professor Neville Rochow SC, who represented Lawyers for the Preservation of the Definition of Marriage, that those who refused to participate in same-sex marriages would be liable to prosecution under state and federal anti-discrimination laws.
It then quoted the response by the Law Society of New South Wales and the Human Rights Law Centre, both of which claimed that, as the law does not oblige marriage celebrants to perform marriages, “Nothing in this bill will change that.”
In fact, if same-sex marriages were legalised in Australia, it would create obligations on others to accept it. Contrary to what was suggested by the Law Institute of Victoria, there are many overseas precedents, as well as legal cases in Australia, which indicate that, with the exception of ministers of religion, those with an objection to same-sex marriage would be obliged to recognise them, or face prosecution for breaching anti-discrimination laws.
Parliamentary committees often deal with issues not envisaged in the original bill, and this inquiry was no exception. It heard evidence from a person born with a biological inter-sex variation, which meant that he was born with biological attributes of both sexes.
He said that although he had been married in New Zealand, where same-sex marriage has been legalised, his marriage could not be recognised in Australia, even under the provisions of Senator Hanson-Young’s bill.
Senator Ian Macdonald (LNP, Queensland), chairman of the committee, recommended that this matter should be examined separately by the federal government. One wonders whether this will become a new vehicle to push for same-sex marriage in Australia.
Two Labor senators submitted a joint supplementary report which endorsed the majority findings. Senators Jacinta Collins (Victoria) and Catryna Bilyk (Tasmania) said, “There have already been a number of attempts to redefine the definition of marriage in Australia. Last year, the Senate rejected the Marriage Act Amendment (Recognition of Foreign Marriages for Same-Sex couples) Bill 2013 which contained very similar provisions to [this] Bill.”
Another Labor senator, Carol Brown from Tasmania, however, presented a report which supported the Hanson-Young bill.
Not surprisingly, Senator Hanson-Young prepared a minority report, which went even further than her original bill. In it, she supported amendments which would allow the marriage of homosexual, lesbian, transgender and inter-sex people.
She also rejected the claim that her bill would discriminate against same-sex couples in Australia who did not have the means to travel overseas.