Legalization of Same Sex Marriage in Australia

Australians rejoiced on Dec. 07, 2017, as the legislation to allow same-sex marriage, the Marriage Amendment (Definition and Religious Freedoms) Act 2017, passed the Australian Parliament and received royal assent from the Governor-General the following day.

With this, Australia becomes 26th Nation in the world, which has legalized same-sex marriage, thus sending a strong message of unity and equality for its citizens, across the globe, and thus inspiring other countires, to follow the lead.Apex court of India, has already re-ignited the homosexulaity debate in India and now, a larger Constitution Bench will review its 2013 judgment upholding the validity of Section 377 of the IPC which criminalises gay sex. With the people in the world, recognizing the rights of long suppressed LBTQI community, same-sex marriage has got a lot of heated debates across various stages in national and international forums around the globe.We, tried to analyze the situation and the whole process and in Australia and tried to relate it with India.

History of Marriage Act 1961 (Australia)In Australia, the Marriage Act 1961 is the current Act that regulates marriage law in Australia. The Act was passed by the Australian Parliament and applies uniformly throughout Australia (including its external territories); and any law made by a State or Territory inconsistent with the Act is invalid. The Act is made pursuant to power granted to the federal parliament under s.51(xxi) of the Australian Constitution. The Act recognises only marriages of two people and does not recognise any other forms of union, including traditional Aboriginal unions

Marriage Amendment Act 2004

Before 2004, there was no definition of marriage in the 1961 Act, and instead the common law definition used in the English case Hyde v Hyde (1866) was considered supreme. Though Sect 46(1) of the Act required celebrants to explain the legal nature of marriage in Australia to a couple as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”, these words were descriptive or explanatory, rather than outlining what constituted a legally valid marriage in Australia.

On 27 May 2004 the then federal Attorney-General Philip Ruddock introduced the Marriage Amendment Bill 2004 to incorporate a definition of marriage into the Marriage Act 1961 and to outlaw the recognition of same-sex marriages lawfully entered into in foreign jurisdictions. In June 2004, the bill passed the House of Representatives. On 12 August 2004, the amendment passed the Parliament. The bill subsequently received royal assent, becoming the Marriage Amendment Act 2004.

The amendment incorporated a definition of marriage into section 5 of the Act, known was the Interpretation section:“marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. and inserted a new section:88EA Certain unions are not marriages

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. Thus, the amendment in the marriage act, made all the same-sex marriages illegal and forbidded any further homosexual marriages. The then prime minister, John Howard, rushed the amendment through the parliament, without any plebiscite, which we think, was not ehtical and a public majority should have been taken into account without making a major change in the Marriage Act.

From 2004 to 2017

Between these 13 years, there have been 22 attempts to recognize homosexual marriage in Australia, under federal law, but all were unsuccessful. After the amenedment in 2004, many ministers tried to introduce and re-introduce the same-sex marriage bill in the parliament.

• • Michael Organ of the Greens, 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.
  • 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. 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. 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
  • At the December 2011 National Conference, Labor overwhelmingly endorsed 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.
  • In February 2012, two bills to allow same-sex marriage in Australia were introduced in the 43rd Parliament.

On 19 September 2012, the House of Representatives voted against passing its same-sex marriage bill by a margin of 98-42 votes. On 20 September 2012, the Senate also voted down its same-sex marriage legislation, by a vote of 41-26.

• 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.
• 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 voteom to debate a free vote on the legislation.
• In 2016, there were speculations about the plebiscte to be held or not. Coailation MPs were in against of it and thus, government seeked for support of the opposition, the Labor Party.
• 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?” But as the bill passed from the house to the senate, it failed and the matter was then closed by the Prime Minister.
• On 9 July 2017, Liberal Senator Dean Smith revealed he was drafting a bill to legalise same-sex marriage. The road to freedom
• The issue was brought before the Liberal party room on 7 August 2017, when Parliament resumed sitting following the winter break.
• In the event the legislation was again rejected by the Senate, the government committed to conduct a voluntary survey by postal mail, which it claimed would not require legislative approval to proceed. Several marriage equality groups disagreed and committed to challenge the postal survey in the High Court.
• The government released details of the proposed postal survey the following day, stating it has the power to organise it under the provisions of existing Commonwealth legislation governing the Australian Bureau of Statistics. Ballots would be mailed out to Australian voters from 12 September and would be required to be mailed back by 7 November, with a result expected no later than 15 November 2017.
• The survey was held between 12 September and 7 November 2017. The results of the survey, released on 15 November, granted victory to the “yes” campaign, who won with 61.6% of the vote. The government responded by confirming it would facilitate the passage of a private member’s bill legalising same-sex marriage before the end of the year.

Conclusion and the Future Ahead “What a day. What a day for love, for equality, for respect”, said Mr Turnbull. “It is time for more marriages, more love, more respect... This belongs to us all. This is Australia.“It is really a good news for all the marginalized people of LGBTIQ community, who are seen by hatred. People are accepting them, and this shows how humanity is evolving. We do talk of equality in all aspects, but it is us only, who do not abide by it. We differentiate people based on their caste, religion, color, creed and Sexuality, which is by any means wrong.

Sexuality is something, one has no choices on. You haven’t chosen to be man or woman, it is by the very nature of your self, the way you behave and you are. If someone behaves effiminately, it doesn’t mean he is doing it by purpose. There is no harm in a guy loving a guy or a girl loving a girl. “Love is blind”, when we say this, we should respect the every form of it. Everyone has their right to live and express their love, and society has no rights of doing Ifs and Buts for it.

Furthermore, one can sense that thinking of the people is changing. Society is getting more broad minded and accepting. They are understanding. specially the new generation. Hope, the Supreme Court of India as well as the people of India too, understand this and become acceptable to this section of the society which just want some love and acceptance from us!Though, their is a word of caution here, for Australia. Just like an amendment was passed in 2004, and again in 2017, there is a slight possibility that in future too this may happen. The ebb and flow of politics can be fickle, and the work of one incumbent government can always be replaced with the forceful will of their successor. While the general consensus regarding the legalization of same-sex marriage in Australia is one of support, there is always a chance that, down the track, the civil rights of many can be refuted by the stance of a few.

References

1. Grossi, R. (2012). The meaning of love in the debate for legal recognition of same-sex marriage in Australia. International Journal of Law in Context, 8(4), 487-505. (https://www.cambridge.org/core/journals/international-journal-of-law-in-context/article/abs/meaning-of-love-in-the-debate-for-legal-recognition-of-samesex-marriage-in-australia/6BE3D588C9B610E2C950B5C1430AC434)
2. Wintemute, R., & Andenas, M. (Eds.). (2001). Legal recognition of same-sex partnerships: A study of national, European and international law. Bloomsbury Publishing. (https://www.bloomsbury.com/uk/legal-recognition-of-samesex-partnerships-9781841131382/)
3. Walker, K. (2007). The same-sex marriage debate in Australia. International Journal of Human Rights, 11(1-2), 109-130. (https://www.tandfonline.com/doi/abs/10.1080/13642980601176290)
4. Brock, M., & Meagher, D. R. (2011). The Legal Recognition of Same Sex Unions in Australia: A Constitutional Analysis. (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2631388)
5. Witzleb, N. (2011). Marriage as the ‘Last Frontier’? Same-Sex Relationship Recognition in Australia. International Journal of Law, Policy and the Family, 25(2), 135-164. (https://academic.oup.com/lawfam/article-abstract/25/2/135/1049942)