The Senate Legal and Constitutional Affairs Committee is currently undertaking an investigation into the Marriage Equality Amendment Bill 2010. The Bill aims to create marriage equality for people regardless of their sex, sexual orientation or gender identity by amending the definition of ‘marriage’ in the Marriage Act 1961.
In the House of Representatives, there is a similar inquiry into two Bills introduced with similar aims. In 2009, a similar inquiry was undertaken by the Senate Committee into the Marriage Equality Amendment Bill 2009. The Committee’s report can be accessed here: Senate Committee Report 2009. The Committee recommended that a review be undertaken with the aim of developing a national framework for the official recognition of same-sex couples and ensuring equal rights to these couples under State and federal laws. However, the Committee did not recommend the passage of the Bill which would have expanded the definition in the Marriage Act to include unions between two people, regardless of sex, sexual orientation or gender identity.
The current Senate Committee inquiry called for submissions on the 2010 Bill. On 30 March 2012, a number of academics from the Adelaide Law School and School of Politics made a submission to the Senate in support of the Marriage Equality Amendment Bill 2010. Our submission is available online. All of the other submissions made the inquiry are also available through the Senate Committee’s website.
Our submission made three key points.
First, Australia is a modern, secular nation built on principles of equality, freedom, and justice. Australia is rightfully proud of its democratic, multicultural and cosmopolitan identity. Today, marriage is a secular institution. Excluding same-sex couples from the institution of marriage is damaging to Australia’s identity.
Second, the value of social equality has been embraced in Australia at Commonwealth, State and Territory levels, which can be seen in the anti-discrimination legislation enacted in these jurisdictions. Denying individuals the capacity to marry is fundamentally inconsistent with the principles of social equality. A fundamental principle of equality is that secondary (and therefore irrelevant) personal characteristics should not be taken into account when making decisions that affect an individual’s capacity to engage on an equal footing in aspects of public life. Marriage is part of public life. The Commonwealth Parliament has the express power to make laws with respect to marriage; the register of marriages is a public registry. Whereas the choice to enter a relationship and to make a life-long commitment to another is a private decision, marriage is the public declaration and legal proof of that decision. It is a legal institution with a myriad of legal implications.
Finally, we argued that strong arguments exist that the Bill can be constitutionally supported under the Commonwealth Parliament’s marriage power (s 51(xxi) of the Constitution), with weaker arguments relating to the external affairs power (s 51(xxix) of the Constitution). Removing discrimination against same-sex couples in the institution of marriage is a fundamental part of a secular, egalitarian society and we therefore believe that despite any uncertainty over the scope of s 51(xxi) (primarily because the courts have not yet clearly defined the scope of the power), the Parliament is right to pass the legislation in its present form.
In the event the Marriage Equality Amendment Bill 2010 is not successful, we also gave some consideration to alternative ways of achieving the purpose behind the amendment: (1) through a referral of power by the States under s 51(xxxvii) of the Constitution; (2) through a referendum under s 128 of the Constitution, and; (3) by amending the Marriage Act in a manner that allows the States and Territories the option to legislate for same-sex marriage.
The Senate Committee will report on the Marriage Equality Amendment Bill 2010 on 6 June 2012. We hope that this time the Committee will make recommendations that demonstrate Australia’s commitment to the values of equality, freedom and justice.
The Submission in Support of the Marriage Equality Amendment Bill 2010 was written jointly by Gabrielle Appleby, Dr Laura Grenfell, Anne Hewitt, Associate Professor Alexander Reilly and Professor John Williams of the Law School, University of Adelaide. It was supported by Dr Judith Bannister, Professor Lisa Hill, Cornelia Koch, Rebecca La Forgia, Nicole Lederer, Professor Rosemary Owens, Professor Ngaire Naffine, Beth Nosworthy, Dr Bernadette Richards, Professor Andrew Stewart, Kellie Toole, Dr Alex Wawryk, and Helen Wighton of the University of Adelaide.