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Same-sex marriage (SSM) and civil unions in Australia

2013-JUN & JUL: Poll. State activity in
South Australia (SA) & New South Wales (NSW)

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This is a continuation from a previous essay.

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2013-JUN-19: South Australia parliament (SA) passes symbolic same-sex motion:

South Australia's upper house narrowly passed a motion congratulating New Zealand for attaining marriage equality. Tammy Franks, a Member of Parliament for the Greens Party said that the motion's passage indicates that marriage equality has support across the political divide. 1

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2013-JUN-20: Unsuccessful attempt to pass marriage equality bill in South Australia (SA):

Although federal law in Australia defines marriage as a union between one woman and one man, some constitutional experts believe that individual states can pass legislation to create other forms of marriage, like same-sex marriage. George Williams, a constitutional law expert from the University of New South Wales explained that one:

"... argument is that the federal law deals with marriage between a man and a woman so state law is left to deal with other forms of marriage."

On JUN-20, the 35th birthday of her gay brother Stephen, Dr. Susan Close introduced the Same Sex Marriage Bill 2013 to allow same-sex couples to obtain a marriage license, marry, and record their marriage with the government's Births, Deaths and Marriages Office. 2 She commented:

"It is a jarring injustice to me ... that I am able to marry the person I love but Stephen is not."

As introduced, the bill contains a clause allowing members of the clergy to actively discriminate with impunity against same-sex couples by refusing to marry them. 2 The clause states:

"Nothing in this Part—
(a) imposes an obligation on an authorised celebrant, being a minister of religion, to solemnise any same sex marriage; or

(b) prevents such an authorised celebrant from making it a condition of his or her solemnising a same sex marriage that—

(i) longer notice of intention to marry than that required by this Act is given; or

(ii) requirements additional to those provided by this Act are observed."

Jay Weatherill, Premier of South Australia, said:

"I accept that there may be contrary legal views. Ultimately, questions of constitutionality are resolved by the High Court in the event that someone decides to challenge a law."

With the number of social and religious conservatives in Australia, it is almost inevitable that the constitutionality of any marriage equality law would be almost instantly tested in court. 3

The Same Sex Marriage Bill 2013 was defeated in South Australia's state Parliament. Labor Members of Parliament (MPs) were allowed to vote freely according to their conscience. However Liberal MPs were required to vote against the bill because of the stance that their party has taken that same-sex marriage can only be approved by the federal government. 4

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2013-JUL-14: Public Opinion Poll shows same-sex marriage is impacting political vote:

With Kevin Rudd recently voted as head of the Labor party and an election coming on 2013-SEP-07, Galaxy Research conducted a poll on voter's support. The survey covered 1,000 Australian adults. The margin of error is ±3.1percentage points. They found that:

  • Kevin Rudd's support for SSM is drawing voters to his Labor party, particularly among young adults.

  • 58% of adults feel that Tony Abbot's opposition to SSM is out-of-step with community views. He is a socially conservative Roman Catholic and former seminarian, and leads both the Liberal Party and the multi-party coalition. He opposes SSM and has not allowed Liberal Members of Parliament to vote on this topic according to their conscience. He has said:

    "I certainly want to see – just a general principle. I want to see stable, committed relationships, but I do think that a marriage, by definition, is between a man and a woman." 10

  • Most voters want Parliament to settle the SSM issue rather than resort to a referendum.

Rodney Croome, national director of Australian Marriage Equality said"

"These polls results show that Kevin Rudd’s support for marriage equality is a net vote winner for Labor while Tony Abbott’s continued opposition, even to a conscience vote, is a vote loser for the Coalition.

In what looks set to be a tight election, marriage equality will be one of the major issues which decides the next Government.

The fact Australian’s want this issue resolved by parliament, not be a referendum, sends a clear message to Kevin Rudd to drop the idea and increases pressure on Tony Abbott to remove the main parliamentary barrier to reform by allowing a conscience vote." 11

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2013-JUL: Movement towards SSM in New South Wales (NSW):

New South Wales (NSW) is an Australian state located in south-east quadrant of Australia. On JUL-26, the NSW's Social Issues Committee Inquiry issued a report. They concluded that the state governments of Australia have the constitutional authority to pass state laws to legalize same-sex marriage within their territory. 5 Previously it had been widely believed that only the federal government had the authority to define eligibility for marriage. This makes Australia's division of powers over marriage resemble the United States and Mexico, where the individual states have the power to legalize or reject same-sex marriage. In most countries where SSM has become available, like Argentina, Belgium, Canada, Denmark, England, France, Iceland, Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, and Sweden, legislative authority for legalizing SSM lies solely with the federal government. 6

Rodney Croome, national director of Australian Marriage Equality -- a pro LGBT advocacy group -- said:

"We will be lobbying state MPs in earnest both in NSW and in those other states such as Tasmania and South Australia where reform has a good chance of passing. ... I hope to see same-sex couples marrying in at least one state or territory by the end of the year [2013]."

He said that marriage equality across the entire country would be preferable, because it would allow all same-sex couples in Australia to marry. It would also allow free movement by same-sex married couples across Australia without losing any rights, protections, status, and recognition.

Croome continued:

"But as long as the federal parliament continues to baulk at reform the states are the way forward." 7

A group of Members of Parliament (MPs) have redrafted a Same Sex Marriage Bill to be introduced in the upper house in the next session by Labor MP Penny Sharpe. She said:

"There have been arguments put forward that marriage equality laws were solely for the Federal Parliament and that progressing same-sex marriage is not an issue for the [individual] states. For the first time we have a clear statement from a multi-party standing committee that recognizes, not just the right of the Legislative Council to debate the issue, but the constitutional basis for the NSW Parliament to pass a same-sex marriage law.

Ms Mehreen Faruqi, a MP for the Greens party, said:

"In the seven months since this inquiry began, six countries have enacted laws to legalize same-sex marriage. I hope these historic steps in NSW will encourage others campaigning for equality, at both the state and federal level, to keep up the fight and make Australia the seventh.''

Niall Blair, the parliamentary inquiry chairperson, said that 7,500 public submissions highlighted:

''... the strength of feeling in the community about same-sex marriage.' 8

Barry O'Farrell, leader of the Liberal Party, has promised that their MPs will have a conscience vote and thus will be free to vote for or against the bill. He is the first Liberal Party state leader to allow this.

Independent MP Alex Greenwich said that the inquiry has:

"... made history. Submissions in favor of reform came from across the community - parents, clergy, health and mental health organizations, and prominent individuals from all sides. The number and breadth of submissions in support of marriage equality demonstrates that it is only a matter of time before a change in the law occurs. We look forward to making this a reality in NSW." 8

One strange development is that the proposed bill would not actually attain marriage equality for all. According to Page 80 of the Committee Report, marriage by both transgender and intersex persons will not be allowed. Marriage would be limited only to persons whose sex can be biologically determined. This restriction appears to have been made in order to make the law more robust when the inevitable challenge to its constitutionality is mounted in the courts. 9 Future amendments to the law can always be made to attain true marriage equality.

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This topic continues on the next essay

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Quotations used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Marriage Equality Motion passed in SA," Sydney Morning Herald, 2013-JUN-20, at: http://www.australianmarriageequality.com/
  2. Text of the "Same Sex Marriage Bill 2013, South Australia. at: http://www.austlii.edu.au/
  3. "Premier Jay Weatherill says SA has Right to Legalise Same-Sex Marriage," News Limited, 2013-JUN-20, at: http://www.australianmarriageequality.com/
  4. "Same-sex marriage bill voted down in South Australian Parliament," ABC News, 2013-JUL-25, at: http://www.abc.net.au/
  5. "Final report: Same-sex marriage law in New South Wales, Parliament of New South Wales, 2013-JUL-26, at: http://www.parliament.nsw.gov.au/
  6. "Nationwide push for same-sex marriage," News.com.au, 2013-JUL-27, at: http://www.news.com.au/
  7. "Nationwide push for same-sex marriage,"Australian Marriage Equality, 2013-JUL-29, at: http://www.australianmarriageequality.com/
  8. Kirsty Needham, "NSW set to back same-sex marriage," Sydney Morning Herald, 2013-JUL-27, at: http://www.smh.com.au/
  9. "lachlanhunt" posted comment at: "NSW set to back same-sex marriage," Reddit Australia, 2013-JUL-27, at: http://www.reddit.com/
  10. "Tony Abbott," Wikipedia, as on 2013-JUL-22, at: http://en.wikipedia.org/
  11. Rodney Croome, Media Release: Report Clears The Way For NSW Same-Sex Marriage Law," Australian Marriage Equality, 2013-JUL-26, at: http://www.australianmarriageequality.com/

Copyright © 2012 to 2013 by Ontario Consultants on Religious Tolerance
Originally written: 2013-JUN
Latest update: 2013-AUG-05
Assembled by: B.A. Robinson

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