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History of same-sex marriage in Australia

January 01, 1970

The history of same-sex marriage in Australia includes its express prohibition by the Howard government in 2004 and its eventual legalisation by the Parliament in December 2017. Although a same-sex marriage law was passed by the Australian Capital Territory in 2013, it was struck down by the High Court on the basis of inconsistency with federal law.[1] The Court's decision closed the possibility of concurrent state or territory laws that would allow same-sex marriage where federal law did not.[1] A law legalising same-sex marriage passed the Parliament on 7 December 2017 and received royal assent the following day.[2]

Between September 2004 and October 2017, there were 22 unsuccessful attempts in the Federal Parliament to legalise or recognise same-sex marriage under federal law.[3] Former Prime Minister Malcolm Turnbull supported same-sex marriage during his time in office when same-sex marriage was legalised by the Parliament.[4][5] The Turnbull government went to the 2016 federal election with a policy to put the issue of same-sex marriage to a plebiscite, and was narrowly re-elected, though the legislation to establish the plebiscite was rejected by the Australian Senate in November 2016 and again in August 2017.[6]

Consequently, the government conducted a voluntary postal survey between 12 September and 7 November 2017, ascertaining the views of Australians on legislating for same-sex marriage. The survey did not require parliamentary approval and despite being legally challenged, was upheld by the High Court. The government pledged to facilitate the passage of a private member's bill legalising same-sex marriage in the Parliament if a majority of respondents voted "Yes" in the survey. The results of the survey were announced on 15 November 2017; 61.6% of respondents voted for same-sex marriage.[7]

Federal law edit

Bills introduced to allow or recognise same-sex marriages under federal law[3]
No Title
1 Same Sex Relationships (Enduring Equality) Bill 2004
2 Same-Sex Marriages Bill 2006
3 Marriage (Relationships Equality) Amendment Bill 2007
4 Marriage (Relationships Equality) Amendment Bill 2008
5 Same-Sex Marriages Bill 2008
6 Marriage Equality Amendment Bill 2009
7 Marriage Equality Amendment Bill 2010
8 Marriage Amendment Bill 2012
9 Marriage Equality Amendment Bill 2012
10 Marriage Amendment Bill (No. 2) 2012
11 Marriage Equality Amendment Bill 2013
12 Marriage Act Amendment (Recognition of Foreign Marriages for
Same-Sex Couples) Bill 2013
13 Marriage Equality Amendment Bill 2013
14 Recognition of Foreign Marriages Bill 2014
15 Freedom to Marry Bill 2014
16 Marriage Amendment (Marriage Equality) Bill 2015
17 Marriage Legislation Amendment Bill 2015
18 Marriage Amendment (Marriage Equality) Bill 2016
19 Marriage Equality Amendment Bill 2013
20 Marriage Legislation Amendment Bill 2016
21 Marriage Legislation Amendment Bill 2016 [No. 2]
22 Freedom to Marry Bill 2016
23 Marriage Amendment (Definition and Religious Freedoms) Bill 2017

The following details the legislative history of marriage law and reform attempts in federal parliament.[8][9]

23rd Parliament (1959–1961) edit

Previously a matter for the Australian states and territories, uniform national marriage legislation was first introduced by Attorney-General Garfield Barwick of the Liberal Party of Australia 19 May 1960.[3] The Marriage Act 1961 was eventually passed in a conscience vote on 22 March 1961, with an attempt by Victorian Senator George Hannan to insert a definition of marriage as "the voluntary union of one man and one woman for life to the exclusion of all others" rejected in a 40-8 vote.[3] At the 1960 second reading speech Barwick noted that the legislation did not seek to define "marriage" while in 1961 the senator responsible for securing the law's passage in the Senate, John Gorton, suggested that:[10]

in our view it is best to leave to the common law the definition or the evolution of the meaning of ‘marriage’ as it relates to marriages in foreign countries and to use this bill to stipulate the conditions with which marriage in Australia has to comply if it is to be a valid marriage.

Section 46 of the Marriage Act 1961[11] requires marriage 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", in line with the 1866 English case of Hyde v Hyde.[10] Before 2004 these words were descriptive or explanatory, rather than outlining what constitutes a legally valid marriage in Australia.[10]

40th, 41st and 42nd Parliaments (2004–2010) edit

In the later stages of the 40th Parliament, public attention increased with respect to same-sex marriage due to court decisions in Massachusetts and Canada legalising same-sex marriage. Two Australian same-sex couples married in Canada in 2004 and lodged an application in the Family Court of Australia in Victoria, seeking legal recognition of their Canadian marriages.[12] Before their matter could be heard, the Howard government, prompted by a petition organised by Richard Egan of the Australian Christian Lobby, changed the law to prevent Australian recognition of same-sex marriages, rendering the cases pointless.[12]

In an attempt to prevent any judicial imposition of same-sex unions in Australia, the Howard government introduced the Marriage Amendment Act in the Parliament on 27 May 2004.[13] The amendment specified that marriage, undefined in the Act, would be defined as a "union of a man and a woman to the exclusion of all others" and that foreign same-sex marriages would not be recognised as such in Australia.[14] Additional reforms to the Family Law Act prevented same-sex couples from being eligible adoptive parents for children in inter-country adoption arrangements,[14] though these restrictions were eventually relaxed in 2014.[15] The amendment passed the parliament on 13 August 2004[16] and went into effect on the day it received royal assent, 16 August 2004.[17]

Following the Government's amendment to the Marriage Act banning same-sex marriage, the first attempts at reform came via private members bill's raised in the Senate by Michael Organ of the Greens and Natasha Stott Despoja and Andrew Bartlett of the Democrats.[18] Organ 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.[18] Greens senator Sarah Hanson Young's 2009 bill to legalise same-sex marriage was the first bill of its kind 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.[19] 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.[20] 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.[21][22]

43rd Parliament (2010–2013) edit

In the election campaign of 2010, then-Prime Minister Julia Gillard, in an interview with the Australian Christian Lobby, stated that her government would not sponsor or support any bill to legislate for same-sex marriage if successful at the election.[23] Despite narrowly retaining government, the Labor Party were quickly forced into an internal debate on the issue, with several party members publicly speaking out against the party and the leader's opposition to same-sex marriage.[24] 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. The motion passed by 208 votes to 184.[25][26]

In February 2012, two bills to allow same-sex marriage in Australia were introduced in the 43rd Parliament. The Joint Parliamentary Inquiry into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012 received 276,437 responses, the largest response ever received by a committee of the House of Representatives or Senate. 177,663 respondents were in favour of changing the law to recognise same-sex marriage, 98,164 were opposed to and 610 were unsure.[27]

On 19 September 2012, the House of Representatives voted against passing its same-sex marriage bill by a margin of 98-42 votes.[28] On 20 September 2012, the Senate also voted down its same-sex marriage legislation, by a vote of 41-26.[29] In both instances, the Liberal/National Coalition honoured their 2010 election commitment to vote as a bloc against any same-sex marriage legislation.

Details of 2012 parliamentary vote on proposed legalisation of same-sex marriage
Marriage Amendment Bill 2012
Second Reading in House of Representatives[28][30]
Party Votes for Votes against
Labor (63)
38
25
Liberal (44) –
44
Liberal National (19) –
19
National (6) –
6
Country Liberal (1) –
1
National (1) –
1
Greens (1)
1
 –
Katter's Australian (1) –
1
Independent (4)
3
1
Total 42 98
Marriage Amendment Bill (No. 2) 2012
Second Reading in Senate[29][31]
Party Votes for Votes against
Labor (27)
16
11
Liberal (21) –
21
Liberal National (4) –
4
National (3) –
3
Country Liberal (1) –
1
Greens (9)
9
 –
DLP (1) –
1
Independent (1)
1
 –
Total 26 41

In March 2013, former Labor prime minister Kevin Rudd announced his personal support of same-sex marriage.[32] Upon returning to the prime ministership in June, Rudd promised to introduce same-sex marriage legislation within 100 days if Labor won the 2013 federal election, while granting its members a conscience vote.[33][34]

44th Parliament (2013–2016) edit

In September 2013, the Tony Abbott-led Liberal/National Coalition comfortably won government at the federal election. Though most Coalition MPs and senators (and Abbott himself) were opposed to same-sex marriage, Abbott stated at the time that the party may consider altering its position to be in favour of a free vote on the matter.[35][36] By December 2013, deputy Labor Opposition Leader, Tanya Plibersek, announced that she would introduce a private member's bill in the Parliament, seeking the assistance and co-sponsorship of Coalition government minister Malcolm Turnbull and a free vote among all parliamentarians.[37] In the same month, the High Court of Australia struck down a law which briefly legalised same-sex marriage in the Australian Capital Territory, on the basis that only the federal parliament, and not a state or territory parliament, had the legal authority to pass such a law.[38]

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.[39]

In May 2015, renewed debate on the issue followed the 2015 Irish constitutional referendum that established same-sex marriage in Ireland, with several Coalition MPs publicly voicing their support for a free vote on same-sex marriage legislation[40][41][42] and Labor MP Anthony Albanese stating that (contingent on a Liberal Party free vote occurring) "it is my judgment that there are now majorities in favour of marriage equality in both the House of Representatives and the Senate".[43]

Capitalising on the renewed momentum, Labor leader Bill Shorten introduced the Marriage Amendment (Marriage Equality) Bill 2015 to the Parliament on 1 June 2015.[44] Despite several Coalition MPs criticising Shorten for political opportunism,[45] Prime Minister Tony Abbott promised a "very full, frank and candid and decent" debate inside the Liberal Party and also appeared to rule out a referendum on same-sex marriage.[46] Further momentum for same-sex marriage occurred following the U.S. Supreme Court's ruling in Obergefell v. Hodges[47] and in July 2015 details of a cross-party same-sex marriage bill to be introduced to the Parliament later in the year were revealed.[48][49][50]

Also in July 2015, at the Labor Party National Conference, the party passed a platform amendment allowing the continuation of a free vote on same-sex marriage legislation for Labor MPs for the existing parliamentary term and the next. This means that following what is likely to be the 2019 federal election, Labor MPs will be bound by party policy to support same-sex marriage legislation.[51]

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 vote.[52] Abbott was accused by Christopher Pyne of "branch stacking" the party room by calling a joint meeting with the largely socially conservative Nationals, as this reduced the prospects of a free vote being endorsed.[53] Following the meeting, Abbott announced that whilst the Coalition would maintain its position of marriage being defined as a heterosexual union for the duration of the existing parliamentary term, he stated it was his "strong disposition" to hold a national vote on same-sex marriage sometime after the 2016 federal election, either in the form of a plebiscite or constitutional referendum.[54] Labor Party Opposition Leader Bill Shorten argued the proposal was a delaying tactic and would waste money, whilst recommitting to introduce a bill to legalise same-sex marriage within 100 days of taking office if successful at the 2016 federal election.[55] On 17 August 2015, in defiance of Mr. Abbott, Liberal backbencher Warren Entsch introduced the aforementioned private members' bill, saying, "a divided nation is what we will be if we continue to allow discrimination in relation to marriage on the basis of a person's sexuality."[56]

On 14 September 2015, Communications Minister Malcolm Turnbull, a prominent supporter of same-sex marriage, challenged Prime Minister Abbott for leadership of the Liberal Party, and became the 29th Prime Minister of Australia. Same-sex marriage lobby groups subsequently began pressuring Prime Minister Turnbull to allow a free vote on Mr Entsch's private members bill or at least bring forward the proposed national plebiscite to the next election or earlier.[57] Mr Turnbull subsequently stated in Question Time that the policy to have a plebiscite on the issue after the next election would be retained by the Coalition.[5]

The issue soon caused tensions within the government[58][59] with the Assistant Minister for Multicultural Affairs and Social Services Concetta Fierravanti-Wells stating that support of same-sex marriage would "place under threat" some marginal seats held by the Coalition and Liberal senator Dean Smith questioning the precedent a national vote on the issue could set.[60][61] In January 2016 at least two Liberal MPs (Cory Bernardi and Eric Abetz) stated they would be unlikely to vote in favour of same-sex marriage in parliament even if the proposed plebiscite returned a majority yes result.[62]

Parliamentary committees of both the Senate and House of Representatives were sharply divided on the issue. The Senate Legal and Constitutional Affairs Reference Committee formally recommended that a national plebiscite or referendum not be held on the topic of same-sex marriage, though a dissenting opinion of Coalition senators strongly advocated for a plebiscite.[63][64] Similarly, a majority of the Parliamentary Joint Committee on Human Rights upheld same-sex marriage as in accordance with international human rights laws and principles, though a dissenting opinion, again of exclusively Coalition senators, criticised the committee for "erroneous" findings and contended that same-sex marriage would "limit the rights of the child", among other concerns.[65] These Coalition senators were subsequently labelled "bigots scraping the bottom of the barrel" by Greens MP Adam Bandt.[66]

On 12 November 2015, Greens Senator Janet Rice introduced another same-sex marriage bill in the 44th Parliament, though debate on the bill was promptly adjourned and the bill was never read a second time.[67] An attempt by the Labor Opposition to suspend parliamentary business and force an immediate debate on a same-sex marriage bill in the House of Representatives was rejected by the Government on 2 March 2016, the house voting down the motion 83 to 57.[68] On 6 March 2016, Attorney-General George Brandis revealed the government would seek to hold the proposed plebiscite in 2016, following that year's election if the government were re-elected. Brandis stated that, in such an event, a bill to amend the Marriage Act would be introduced to the parliament and that he "would expect there is little, virtually no doubt at all that if the public votes 'yes' the parliament will follow".[69] During the course of the 2016 federal election campaign, several Coalition MP's said they would consider voting 'no' to same-sex marriage in the parliament even if a majority of the national electorate voted in favour, creating a split within the Coalition.[70] Turnbull confirmed that Coalition politicians could vote against same-sex marriage regardless of the outcome of a plebiscite.[71] The government was narrowly re-elected at the election.[72]

45th Parliament (2016–2019) edit

 
Sample image of the survey form
See also: Australian Marriage Law Postal Survey and Marriage Amendment (Definition and Religious Freedoms) Act 2017

On 18 July 2016, Prime Minister Turnbull revealed the proposed plebiscite might not occur until the first half of 2017 and left open the possibility of the Senate rejecting legislation to create the plebiscite. Notwithstanding this, Turnbull committed to holding it "as soon as is practicable".[73] The opposition Labor Party supported same-sex marriage in its national platform, while allowing its parliamentary members a conscience vote on same-sex marriage legislation at the time.[74] On 20 August 2016, several media outlets reported that the government would announce an intention to hold the plebiscite in February 2017[75][76][77] whilst several Coalition MPs publicly stated that any defeat of legislation to create the plebiscite would result in the end of debate on the issue for at least 3 years.[78] On 26 August 2016, Greens leader Richard Di Natale confirmed that the party, which holds 9 seats in the Senate, would oppose plebiscite-enabling legislation.[79] Three days later, Nick Xenophon confirmed that his party, made up of three Senators and one member of the House of Representatives, would also vote against plebiscite legislation in the parliament, citing the financial cost of the plebiscite and expressing a desire for same-sex marriage legislation to simply be passed in parliament.[80] The decision meant that, in order for the plebiscite to proceed, it would have needed to receive the support of the opposition Labor Party, who had yet to formally respond to the proposal but had previously labelled it "a second-best option".[81] On 12 September 2016, two private member's bills legalising same-sex marriage were introduced into the House of Representatives, one by Labor leader Bill Shorten[82] and another by Greens MP Adam Bandt.[83]

The commitment that was announced under my prime ministership and which I'm pleased to say has been maintained under the current prime ministership, the commitment is that at least for the life of this Parliament, the Marriage Act will not be changed without putting it to the people first.

— Tony Abbott, former Prime Minister and supporter of a plebiscite on same-sex marriage – 23 March 2017[84]

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?"[85] Additionally, $15 million of taxpayer funding will be equally distributed to the official "yes" and "no" campaigns.[86] If passed by the parliament, the plebiscite would be held on 11 February 2017.[87] On 11 October 2016, the Labor Opposition announced it had officially resolved to oppose the plebiscite legislation, meaning that it lacked majority support in the Senate and the plebiscite could not go ahead.[88] Debate on the Plebiscite (Same-Sex Marriage) Bill 2016 was held in the House between 11–20 October,[89] until the Government moved to end debate on the second reading and move for a vote. The bill passed the House 76–67 votes and moved to the Senate.[90][91] Debate on the bill was held in the Senate throughout the day and evening of 7 November. The bill was defeated in the Senate at the second reading stage by 33 votes to 29.[92][6][93] Following the result in the Senate, Prime Minister Turnbull stated the government had "no plans to take any other measures on this issue".[94]

Details of 2016 Senate vote on same-sex marriage plebisicte
Plebiscite (Same-Sex Marriage) Bill 2016 – Second Reading[95]
Party Votes for Votes against Pairs/Abstentions
Labor (26) –
22
4
Liberal (21)
15
 –
6
Greens (9) –
7
2
Liberal National (5)
5
 – –
One Nation (Australia) (4)
4
 – –
National (3)
3
 – –
Xenophon Team (3) –
3
 –
Country Liberal (1) – –
1
Lambie Network (1)
1
 – –
Justice (1) –
1
 –
Liberal Democrats (1)
1
 – –
Total 29 33 13

A Senate committee was subsequently launched to discuss the text of the Government's draft same-sex marriage bill, which was published by the Attorney-General's office during the parliamentary debate on the plebiscite.[96][97] The bill was to have been debated in (and likely passed by) the parliament in the event the plebiscite proceeded and achieved a majority 'yes' vote. The committee gathered submissions from lawyers, religious and social service groups, with particular consternation regarding provisions in the bill allowing civil celebrants to refuse to officiate at same-sex marriages.[98][99] The bill would also allow religious bodies and organisations scope to refuse to provide goods and services "reasonably incidental" to the solemnisation of a same-sex marriage.[97] During committee hearings, opponents of same-sex marriage requested additional religious freedom protections in the event of same-sex marriage ever being legalised.[100] The committee issued its findings to the Senate and public on 15 February 2017.[101] Significant among the committee's findings was a unanimous recommendation that a new subdivision of marriage celebrant, titled Religious Marriage Celebrants, be created to capture civil celebrants of a religious inclination who would be given the same protections afforded to ministers of religion.[102][101] The committee also rejected the proposal to allow civil celebrants to refuse to perform same-sex weddings on the basis of "conscientious belief", declaring there was no need to "disturb decades of anti-discrimination law and practice in Australia".[102][101]

On 4 February 2017, several Coalition MPs supporting same-sex marriage stated to Fairfax Media they would push to abandon the government's plebiscite policy over the following fortnight in favour of a free vote on the floor of Parliament.[103] A number of conservative Coalition MPs subsequently stated that such a move would be a "betrayal" of trust with the electorate and pledged to fight any attempt to change Coalition policy on the issue.[104] Following the publication of the Senate Committee's report into the Attorney-General's draft bill (see above), speculation increased that the report could form the basis for a cross-party same-sex marriage bill in the Senate, to be co-sponsored by gay Liberal Party Senator Dean Smith, Labor, the Greens, the Nick Xenophon Team and possibly Senator Derryn Hinch.[102] By mid-March, the issue had once again split the government, with a private and sustained effort by moderate Liberal MPs to move for a free vote allegedly hitting a "brick wall" following opposition by more conservative members of the party room. Those opposed to the reform in the Coalition government argued a recent public letter urging the Prime Minister to legislate for same-sex marriage, signed by 20 of Australia's most prominent CEO's, constituted an effort to "bully" the government and thus made it less likely a free vote in the parliament would happen.[105][106] Subsequently, it was revealed in a Senate Committee hearing that the government had sought official advice on conducting a plebiscite via postal mail, a proposal which received a mixed response.[107] Soon after that the issue of same-sex couples being unable to divorce in Australia following a marriage in an overseas jurisdiction (where same-sex marriage is legal) emerged.[108] In August 2017, the United Nations Human Rights Committee ruled that the lack of an official same-sex divorce scheme in Australia constituted a breach of human rights and stated the Government of Australia was obliged to provide "an effective remedy".[109]

If the Liberals come out with a [conscience] vote, it won't be me only, the whole show would blow up...Turnbull's leadership would become untenable and he'd no longer be prime minister. They'd push for Peter Dutton or Greg Hunt as leader and deputy leader or we'd be going to a general election.

— Andrew Broad, National Party MP for the Division of Mallee – 7 August 2017[110]

Liberal MPs who raised the prospect of a free vote in the party in June 2017 had their advances rejected by several members of the Coalition who insisted no change could be made without first having a plebiscite.[111][112][113] On 9 July 2017, Liberal Senator Dean Smith announced he was drafting a bill to legalise same-sex marriage. The bill would include legal protections for celebrants who did not wish to perform same-sex marriages. Smith stated he intended to bring the bill to the Liberal party room for debate in due course with the hope of having a conscience vote on the legislation before the end of the year, though the prospect of crossing the floor was also raised.[114][115][116] The move was countered by a fresh push from several conservative members of the government, including Immigration Minister Peter Dutton, to instead have a plebiscite conducted by postal mail.[117][118][119]

The issue was brought before the Liberal party room on 7 August 2017, when Parliament resumed sitting following the winter break.[120][121] Up to five Liberal MPs in the lower house and one Senator stated they would consider crossing the floor to bring on debate on a same-sex marriage bill, even if the party rejected a free vote and maintained its plebiscite policy.[122] The legislation, drafted by Senator Smith, was revealed the day prior to the party room meeting.[123][124][125] In response to the prospect of the Liberal Party potentially moving to a free vote, Nationals MP Andrew Broad stated he would quit the Coalition and sit on the crossbench, saying the likely outcome of such a decision would be the fall of the Turnbull government.[110]

At the party room meeting, an overwhelming majority of MPs voted to maintain the plebiscite policy, moving for the legislation to be put back to the Senate the same week. 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 did not require legislative approval to proceed.[126] Several same-sex marriage groups disagreed and committed to challenge the postal survey in the High Court.[127][128]

The government released details of the proposed postal survey the following day, claiming 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. If the postal survey returned a majority 'yes' verdict, the government announced it would facilitate a private member's bill in the final sitting fortnight of the parliamentary year which would legalise same-sex marriage.[129][130]

On 9 August 2017, the Senate rejected a government-initiated motion to debate the Plebiscite (Same-Sex Marriage) Bill 2016, the vote on the motion tied at 31-31.[131] This cleared the way for the Finance Minister, Mathias Cormann, to make an immediate appropriation to the Australian Bureau of Statistics (ABS) the purpose of conducting the postal survey.[132][133] The Treasurer, Scott Morrison, then issued an official direction to the ABS, requiring it to collect information relating to the people's views on same-sex marriage. The direction stated that the last day citizens would have to include their information on the electoral roll would be 24 August 2017.[134][135] Immediately following the failed motion in the Senate, same-sex marriage advocates Shelley Argent (national spokeswoman of Parents and Friends of Lesbians and Gays) and Felicity Marlowe (head of Rainbow Families), along with independent MP Andrew Wilkie, announced they would challenge the legality of the postal survey in the High Court.[136] The group cited three chief legal concerns with the postal survey:[136]

  • whether the government may be exceeding its executive authority.
  • whether the direction to conduct the vote and the appropriation to pay for it are in fact "urgent", as necessitated by the Appropriations Act.
  • whether the Australian Bureau of Statistics has the legal authority to administer a national vote of this kind given that a postal vote on same-sex marriage may not be considered "statistic gathering" of the sort the ABS is authorised to undertake.

On 10 August, the Human Rights Law Centre filed a legal action on behalf of Australian Marriage Equality and Greens Senator Janet Rice.[137] The court agreed to hear arguments in the cases on 5 and 6 September 2017.[138] On 7 September 2017, the court handed down its ruling, finding that the survey was lawful and allowing it to proceed as scheduled.[139][140]

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.[141] The bill to that effect, the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, was introduced by Senator Dean Smith.

The bill amends Section 5 of the Marriage Act to define marriage in Australia as the union of "2 people".[142] It also removes the ban on overseas same-sex marriages being recognised in Australia, including ones that occurred before the expected law change.[143] Additionally, the bill includes protections for religious celebrants, ministers of religion and bodies established for a religious purpose, to not be obligated to perform or provide services and facilities to marriages they objected to.[142] The bill passed the Senate by 43 votes to 12 on 29 November 2017. Several amendments to the bill proposed by conservative Coalition MPs, designed to increase protections and exemptions offered to individuals and businesses opposed to same-sex marriage, were defeated.[144][145][146] The bill passed the House of Representatives without amendment on 7 December 2017.[147][148] The bill then received royal assent from the Governor-General on 8 December 2017, becoming a formal Act of Parliament.[149] It went into effect on 9 December 2017.[2] Same-sex marriages lawfully entered into overseas became recognised from that date,[2] and the first weddings under the amended law occurred (after the normal one-month waiting period) from 9 January 2018.[150][151][152] Within a week of the legislation's passing, at least one same-sex couple, married under the laws of another country, had applied for a divorce.[153] Several same-sex couples successfully applied for an exemption from the one-month waiting period between completing a notice of intended marriage form and the wedding ceremony,[154] and the first legal same-sex wedding under Australian law was held on 15 December 2017, with further weddings occurring the following day.[155][156][157]

State and territory laws edit

States and territories have long had the ability to create laws with respect to relationships, though Section 51 (xxi) of the Constitution of Australia prescribes that marriage is a legislative power of the federal parliament.[158]

In December 2013, the High Court of Australia ruled, in relation to a territory-based same-sex marriage law of the Australian Capital Territory (ACT), that the federal Marriage Act, which defined marriage as the union of a man and woman, precluded states and territories from legislating for same-sex marriage.[159] As a result, only the federal parliament can legislate for same-sex marriage, whilst states and territories almost certainly cannot.

Since the Commonwealth introduced the Marriage Act Cth. 1961, marriage laws in Australia have been regarded as an exclusive Commonwealth power. The precise rights of states and territories with respect to creating state-based same-sex marriage laws have been complicated since the Howard government amendment to the Marriage Act in 2004 to define marriage as the exclusive union of one man and one woman, to the exclusion of all others.[160] In their December 2013 ruling striking down the ACT's same-sex marriage law, the High Court effectively determined that all laws with respect to marriage were an exclusive power of the Commonwealth and that no state or territory law legalising same-sex marriage or creating any type of marriage could operate concurrently with the federal Marriage Act; "the kind of marriage provided for by the [Marriage] Act is the only kind of marriage that may be formed or recognised in Australia".[159] As a result, the only possible method for same-sex marriage legalisation to occur in Australia is via legislation passed into law by the Federal Parliament only.

Prior to that ruling, reports released by the New South Wales Parliamentary Committee on Social Issues 10 February 2017 at the Wayback Machine and the Tasmanian Law Reform Institute have found that a state parliament "has the power to legislate on the topic of marriage, including same-sex marriage. However, if New South Wales chooses to exercise that power and enact a law for same-sex marriage, the law could be subject to challenge in the High Court of Australia"[161] and that no current arguments "present an absolute impediment to achieving state-based or Commonwealth marriage equality".[162] With respect to territories, the ACT Government obtained legal advice that its bill seeking to legalise same-sex marriage could operate concurrently with the federal Government's statutory ban on recognising same-sex marriage.[163] The Abbott government's acting Solicitor-General advised the federal Attorney-General, George Brandis, that the ACT's same-sex marriage law was inconsistent with the federal Government's laws[164] whilst other experts rated the ACT's law as 'doubtful' or impossible to pass judicial scrutiny.[165][166] Those experts were proven correct, when on 12 December 2013, the High Court of Australia struck down the Australian Capital Territory's same-sex marriage law.

Aside from the Australian Capital Territory, Tasmania is the only other state or territory to have passed same-sex marriage legislation in a chamber of its legislature. The state lower house passed same-sex marriage legislation by 13-11 votes in September 2012, though the state upper house subsequently voted against this legislation a few weeks later by a vote of 8-6.[167][168] Both houses have since passed motions giving in-principle, symbolic support for same-sex marriage.[169]

New South Wales amended its law in November 2014 to allow overseas same-sex marriages to be recognised on the state's relationship register.[170][171][172]

As of December 2016, six Australian jurisdictions (Tasmania, Australian Capital Territory, New South Wales, South Australia, Queensland and Victoria), comprising 90% of Australia's population, recognise same-sex marriages and civil partnerships performed overseas, providing automatic recognition of such unions in their respective state registers.[173]

Australian Capital Territory edit

Main article: Marriage Equality (Same Sex) Act 2013
See also: Recognition of same-sex unions in the Australian Capital Territory

On 13 September 2013, the Australian Capital Territory (ACT) Government announced that it would introduce a bill to legalise same-sex marriage, following a decade-long attempt to legislate in the area.[174] "We've been pretty clear on this issue for some time now and there's overwhelming community support for this", Chief Minister Katy Gallagher said. "We would prefer to see the federal parliament legislate for a nationally consistent scheme, but in the absence of this we will act for the people of the ACT. The Marriage Equality Bill 2013 will enable couples who are not able to marry under the Commonwealth Marriage Act 1961 to enter into marriage in the ACT. It will provide for solemnisation, eligibility, dissolution and annulment, regulatory requirements and notice of intention in relation to same-sex marriages."[175] On 10 October 2013, federal Attorney-General George Brandis confirmed that the Commonwealth Government would challenge the proposed ACT bill, stating that the Coalition Government has significant constitutional concerns with respect to the bill.[176] The bill was debated in the ACT Legislative Assembly on 22 October 2013, and passed by 9 votes to 8.[177][178]

Under the legislation, same-sex marriages were legally permitted from 7 December 2013.[179][180][181]

As soon as the ACT act had been passed, the Commonwealth launched a challenge to it in the High Court, which delivered judgment on 12 December 2013.[182][183] As to the relation between the ACT act and federal legislation, the Court found that the ACT act was invalid and of "no effect", because it was "inconsistent", in terms of the Australian Capital Territory Self-Government Act 1988 (Cth), with the federal Marriage Act 1961 (Cth). It was inconsistent both because its definition of marriage conflicted with that in the federal act and because the federal act was exclusive, leaving no room for any other definition in legislation of a state or a territory. However, the Court went on to determine that the word "marriage" in Constitution s51(xxi) includes same-sex marriage, thus clarifying that there is no constitutional impediment to the Commonwealth legislating for same-sex marriage in the future. It can do so by amending the definition of "marriage" in the Marriage Act.

Position of political parties edit

Political support for same-sex marriage has lagged behind public opinion.[184] When marriage was officially restricted to opposite-sex couples by the Commonwealth Parliament in 2004, both the Coalition and the Australian Labor Party voted to prevent same-sex marriage, with the Australian Greens consistently in favour.[184] Since that time, Labor has moved to supporting same-sex marriage (with members bound to vote in favour from 2019) while a number of Coalition politicians have also expressed their support for same-sex marriage.[184] The political shift in favour of same-sex marriage is attributed to the weakening political influence of social conservatives, including the Australian Christian Lobby.[185]

Official party positions on same-sex marriage
Party Year Leader(s) Position Notes
ALP Australian Labor Party 2004-2011 Mark Latham, Kim Beazley, Kevin Rudd (PM), Julia Gillard (PM) Oppose Under the leadership of Mark Latham in 2004, Labor supported the statutory ban on same-sex marriage to appease its right-wing factions and avoid losing electorates in western Sydney.[186] The right-wing factions were historically linked to socially conservative elements of the Roman Catholic Church, while western Sydney contained a higher proportion of immigrants, who statistically are more hostile to same-sex marriage.[184] After being elected to government under Kevin Rudd in 2007, the party maintained its opposition to same-sex marriage.[187] The policy was maintained by Julia Gillard after she replaced Rudd, with her pledging to the Australian Christian Lobby not to introduce same-sex marriage after the 2010 election.[23] By opposing same-sex marriage during this time, both Rudd and Gillard sought to increase the ALP's appeal to aspirational socially conservative voters.[185]
2011-2019 Julia Gillard (PM), Kevin Rudd (PM), Bill Shorten Support (conscience vote); no public vote Although Gillard maintained her opposition to same-sex marriage in 2011, internal lobbying resulted in a change to the party platform at the 2011 national conference when the party voted to support same-sex marriage in its platform. Gillard sponsored a motion to allow Labor politicians a conscience vote rather than bind them to the new policy, which was passed 208-184.[25][188] After Gillard was deposed by Rudd, he promised to introduce same-sex marriage legislation within 100 days if Labor won the 2013 election while allowing a conscience vote for ALP politicians.[33] After the Coalition changed its policy in favour of a public vote on the issue, new leader Bill Shorten indicated the ALP's opposition despite having expressed support for a public vote in 2013.[189] The ALP caucus confirmed its opposition to a plebiscite in 2016[190] and voted both times against the Coalition's plebiscite bill in the Senate.[131]
2019 Bill Shorten Support (no conscience vote) At the 2015 Labor Party national conference, Tanya Plibersek and the Left faction agitated for Labor MPs to be bound to vote in favour of same-sex marriage. Following negotiations with leader Bill Shorten, the party compromised by passing a platform amendment allowing the continuation of a free vote on same-sex marriage legislation for Labor MPs for two more terms, with MPs bound by party policy to support same-sex marriage legislation from the 46th Parliament onwards.[191]
LIB / NAT Coalition (Liberal Party and Nationals) 2004-2015 John Howard (PM), Brendan Nelson, Malcolm Turnbull, Tony Abbott (PM) Oppose; no conscience vote During the Howard government, Coalition policy was strongly against same-sex marriage and introduced legislation to ban it.[186] In addition to his personal beliefs, Howard used anti-LGBT policies as a wedge issue against the opposition Australian Labor Party.[186]
2015–present Tony Abbott (PM), Malcolm Turnbull (PM) Subject to public vote (no conscience vote) The official policy of opposition persisted until backbench pressure led to Tony Abbott introducing a policy to hold a plebiscite, which was retained by his successor Malcolm Turnbull.[5] Turnbull was criticised by LGBT advocates for maintaining a policy for internal party politics that he had previously opposed.[192] The issue is a divisive one in the Liberal Party. Whilst an overwhelming majority of Liberal MPs support a vote of the people prior to any change to the law, some Liberals such as Tony Abbott advocate a 'no' vote[193] whilst others such as Simon Birmingham have indicated their willingness to campaign for a 'yes' vote.[194] Coalition MPs will be free to vote against same-sex marriage regardless of the outcome of the public vote.[195]
GRN Australian Greens 2004–present Bob Brown, Christine Milne, Richard Di Natale Support; no public vote The Greens have consistently voted in favour of same-sex marriage since 2004, using the tag line "Every vote. Every MP. Every time" in election advertising.[196] They opposed the 2016 plebiscite proposal.[197] Greens Senator Sarah Hanson-Young and leader Richard Di Natale confirmed the party would advocate for a 'yes' vote if legal challenges to the survey were unsuccessful.[198] Greens Senator Janet Rice was a party to a failed High Court challenge to the postal survey.[199]
CON Australian Conservatives 2016–present Cory Bernardi Oppose; support public vote Bernardi formed a close relationship with lobby groups Australian Christian Lobby and Marriage Alliance during the plebiscite debate and has issued statements opposing same-sex marriage on several occasions.[200]
LDP Liberal Democratic Party 2014–present David Leyonhjelm Support; support public vote As libertarians, the LDP and Leyonhjelm have consistently supported same-sex marriage.[201] Although initially opposed to the Coalition's plebiscite proposal, Leyonhjelm later supported it on the basis that allowing a public vote would be the fastest way to bring about the change.[202]
JLN Jacqui Lambie Network 2013–present Jacqui Lambie Neutral; support public vote Although Lambie is opposed to same-sex marriage and has voted against it, she supports a public vote and would vote in favour if a majority of Australians voted to support change.[203]
ONP Pauline Hanson's One Nation 2016–present Pauline Hanson Neutral; support public vote At the 2016 election, Hanson indicated that the party would prefer a "referendum rather than a plebiscite" for the introduction of same-sex marriage.[204] Hanson also stated that although she did not personally support same-sex marriage, if a majority of Australians voted in favour of it in a plebiscite, she would vote for it in the Senate.[205]
DHJP Derryn Hinch's Justice Party 2016–present Derryn Hinch Support; no public vote Hinch supports same-sex marriage and opposes a public vote as a waste of money.[206]
KAP Katter's Australian Party 2013–present Bob Katter Oppose; support public vote Katter's strong opposition to same-sex marriage is reflected in his party's platform, although one candidate expressed support for same-sex marriage in the past, which led to internal divisions.[207] Katter voted in favour of the Coalition's proposed plebiscite.[208][209]
NXT Nick Xenophon Team 2016–present Nick Xenophon Support; no public vote NXT members support same-sex marriage and oppose holding a plebiscite on the grounds that the issue should be resolved by Parliament, a plebiscite would be non-binding and the cost of a public vote is wasteful.[210][211]

Independents edit

In the House of Representatives, Andrew Wilkie and Cathy McGowan support same-sex marriage and prefer a parliamentary vote.[212] In the Senate, independent Senator for South Australia Lucy Gichuhi, who opposes same-sex marriage,[213] voted in favour of the Coalition's proposed plebiscite in 2017.[214]

See also edit

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External links edit

  • For Better or Worse – Four Corners documentary about the history of the political debate regarding same-sex marriage in Australia

January 01, 1970
history, same, marriage, australia, history, same, marriage, australia, includes, express, prohibition, howard, government, 2004, eventual, legalisation, parliament, december, 2017, although, same, marriage, passed, australian, capital, territory, 2013, struck. The history of same sex marriage in Australia includes its express prohibition by the Howard government in 2004 and its eventual legalisation by the Parliament in December 2017 Although a same sex marriage law was passed by the Australian Capital Territory in 2013 it was struck down by the High Court on the basis of inconsistency with federal law 1 The Court s decision closed the possibility of concurrent state or territory laws that would allow same sex marriage where federal law did not 1 A law legalising same sex marriage passed the Parliament on 7 December 2017 and received royal assent the following day 2 Between September 2004 and October 2017 there were 22 unsuccessful attempts in the Federal Parliament to legalise or recognise same sex marriage under federal law 3 Former Prime Minister Malcolm Turnbull supported same sex marriage during his time in office when same sex marriage was legalised by the Parliament 4 5 The Turnbull government went to the 2016 federal election with a policy to put the issue of same sex marriage to a plebiscite and was narrowly re elected though the legislation to establish the plebiscite was rejected by the Australian Senate in November 2016 and again in August 2017 6 Consequently the government conducted a voluntary postal survey between 12 September and 7 November 2017 ascertaining the views of Australians on legislating for same sex marriage The survey did not require parliamentary approval and despite being legally challenged was upheld by the High Court The government pledged to facilitate the passage of a private member s bill legalising same sex marriage in the Parliament if a majority of respondents voted Yes in the survey The results of the survey were announced on 15 November 2017 61 6 of respondents voted for same sex marriage 7 Contents 1 Federal law 1 1 23rd Parliament 1959 1961 1 2 40th 41st and 42nd Parliaments 2004 2010 1 3 43rd Parliament 2010 2013 1 4 44th Parliament 2013 2016 1 5 45th Parliament 2016 2019 2 State and territory laws 2 1 Australian Capital Territory 3 Position of political parties 3 1 Independents 4 See also 5 References 6 External linksFederal law editBills introduced to allow or recognise same sex marriages under federal law 3 No Title 1 Same Sex Relationships Enduring Equality Bill 2004 2 Same Sex Marriages Bill 2006 3 Marriage Relationships Equality Amendment Bill 2007 4 Marriage Relationships Equality Amendment Bill 2008 5 Same Sex Marriages Bill 2008 6 Marriage Equality Amendment Bill 2009 7 Marriage Equality Amendment Bill 2010 8 Marriage Amendment Bill 2012 9 Marriage Equality Amendment Bill 2012 10 Marriage Amendment Bill No 2 2012 11 Marriage Equality Amendment Bill 2013 12 Marriage Act Amendment Recognition of Foreign Marriages forSame Sex Couples Bill 2013 13 Marriage Equality Amendment Bill 2013 14 Recognition of Foreign Marriages Bill 2014 15 Freedom to Marry Bill 2014 16 Marriage Amendment Marriage Equality Bill 2015 17 Marriage Legislation Amendment Bill 2015 18 Marriage Amendment Marriage Equality Bill 2016 19 Marriage Equality Amendment Bill 2013 20 Marriage Legislation Amendment Bill 2016 21 Marriage Legislation Amendment Bill 2016 No 2 22 Freedom to Marry Bill 2016 23 Marriage Amendment Definition and Religious Freedoms Bill 2017 The following details the legislative history of marriage law and reform attempts in federal parliament 8 9 23rd Parliament 1959 1961 edit Previously a matter for the Australian states and territories uniform national marriage legislation was first introduced by Attorney General Garfield Barwick of the Liberal Party of Australia 19 May 1960 3 The Marriage Act 1961 was eventually passed in a conscience vote on 22 March 1961 with an attempt by Victorian Senator George Hannan to insert a definition of marriage as the voluntary union of one man and one woman for life to the exclusion of all others rejected in a 40 8 vote 3 At the 1960 second reading speech Barwick noted that the legislation did not seek to define marriage while in 1961 the senator responsible for securing the law s passage in the Senate John Gorton suggested that 10 in our view it is best to leave to the common law the definition or the evolution of the meaning of marriage as it relates to marriages in foreign countries and to use this bill to stipulate the conditions with which marriage in Australia has to comply if it is to be a valid marriage Section 46 of the Marriage Act 1961 11 requires marriage 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 in line with the 1866 English case of Hyde v Hyde 10 Before 2004 these words were descriptive or explanatory rather than outlining what constitutes a legally valid marriage in Australia 10 40th 41st and 42nd Parliaments 2004 2010 edit In the later stages of the 40th Parliament public attention increased with respect to same sex marriage due to court decisions in Massachusetts and Canada legalising same sex marriage Two Australian same sex couples married in Canada in 2004 and lodged an application in the Family Court of Australia in Victoria seeking legal recognition of their Canadian marriages 12 Before their matter could be heard the Howard government prompted by a petition organised by Richard Egan of the Australian Christian Lobby changed the law to prevent Australian recognition of same sex marriages rendering the cases pointless 12 In an attempt to prevent any judicial imposition of same sex unions in Australia the Howard government introduced the Marriage Amendment Act in the Parliament on 27 May 2004 13 The amendment specified that marriage undefined in the Act would be defined as a union of a man and a woman to the exclusion of all others and that foreign same sex marriages would not be recognised as such in Australia 14 Additional reforms to the Family Law Act prevented same sex couples from being eligible adoptive parents for children in inter country adoption arrangements 14 though these restrictions were eventually relaxed in 2014 15 The amendment passed the parliament on 13 August 2004 16 and went into effect on the day it received royal assent 16 August 2004 17 Following the Government s amendment to the Marriage Act banning same sex marriage the first attempts at reform came via private members bill s raised in the Senate by Michael Organ of the Greens and Natasha Stott Despoja and Andrew Bartlett of the Democrats 18 Organ 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 18 Greens senator Sarah Hanson Young s 2009 bill to legalise same sex marriage was the first bill of its kind 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 19 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 20 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 21 22 43rd Parliament 2010 2013 edit In the election campaign of 2010 then Prime Minister Julia Gillard in an interview with the Australian Christian Lobby stated that her government would not sponsor or support any bill to legislate for same sex marriage if successful at the election 23 Despite narrowly retaining government the Labor Party were quickly forced into an internal debate on the issue with several party members publicly speaking out against the party and the leader s opposition to same sex marriage 24 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 The motion passed by 208 votes to 184 25 26 In February 2012 two bills to allow same sex marriage in Australia were introduced in the 43rd Parliament The Joint Parliamentary Inquiry into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012 received 276 437 responses the largest response ever received by a committee of the House of Representatives or Senate 177 663 respondents were in favour of changing the law to recognise same sex marriage 98 164 were opposed to and 610 were unsure 27 On 19 September 2012 the House of Representatives voted against passing its same sex marriage bill by a margin of 98 42 votes 28 On 20 September 2012 the Senate also voted down its same sex marriage legislation by a vote of 41 26 29 In both instances the Liberal National Coalition honoured their 2010 election commitment to vote as a bloc against any same sex marriage legislation Details of 2012 parliamentary vote on proposed legalisation of same sex marriage Marriage Amendment Bill 2012Second Reading in House of Representatives 28 30 Party Votes for Votes against Labor 63 38 Anthony AlbaneseSharon BirdGai BrodtmannMark ButlerNick ChampionDarren CheesemanJason ClareJulie CollinsGreg CombetSimon CreanMark DreyfusJustine ElliotKate EllisPeter GarrettSteve GeorganasSteve GibbonsGary GraySharon GriersonAlan GriffinJill Hall teller Harry JenkinsStephen JonesMike KellyCatherine KingKirsten LivermoreJenny MacklinRichard MarlesMelissa ParkeGraham PerrettTanya PlibersekAmanda RishworthNicola RoxonJanelle Saffin teller Bill ShortenSid SidebottomStephen SmithLaura SmythWarren Snowdon 25 Dick AdamsChris BowenDavid BradburyTony BurkeAnthony ByrneYvette D AthCraig EmersonJoel FitzgibbonJulia Gillard Prime Minister Chris HayesEd HusicGeoff LyonsRobert McClellandDaryl MelhamShayne NeumannDeborah O NeillJulie OwensBernie RipollMichelle RowlandKevin RuddWayne SwanMike SymonKelvin ThomsonMaria VamvakinouTony Zappia Liberal 44 44 Tony AbbottJohn AlexanderKevin AndrewsBronwyn BishopJulie BishopBob BaldwinBruce BillsonJamie BriggsRussell BroadbentCraig KellyPaul FletcherJosh FrydenbergTeresa GambaroJoanna GashAlex HawkeJoe HockeyGreg HuntSteve IronsDennis JensenMichael KeenanSussan LeyNola MarinoLouise MarkusRussell MathesonSophie MirabellaScott MorrisonJudi MoylanJohn MurphyKelly O DwyerChristopher PyneRowan RamseyDon RandallAndrew RobbPhilip RuddockAlby SchultzPatrick Secker teller Tony SmithAndrew SouthcottSharman StoneDan TehanAlan TudgeMalcolm TurnbullMal WasherKen Wyatt Liberal National 19 19 Karen AndrewsScott BuchholzGeorge ChristensenSteven CioboPeter DuttonEwen JonesWarren EntschAndrew LamingIan MacfarlanePaul NevilleKen O DowdJane PrenticeStuart RobertWyatt RoyBruce ScottAlex SomlyayWarren TrussBert van ManenRoss Vasta National 6 6 Darren ChesterJohn CobbMark Coulton teller John ForrestLuke HartsuykerMichael McCormack Country Liberal 1 1 Natasha Griggs National 1 1 Tony Crook Greens 1 1 Adam Bandt Katter s Australian 1 1 Bob Katter Independent 4 3 Rob OakeshottCraig ThomsonAndrew Wilkie 1 Tony Windsor Total 42 98 Marriage Amendment Bill No 2 2012Second Reading in Senate 29 31 Party Votes for Votes against Labor 27 16 Carol Brown Teller Doug CameronKim CarrTrish CrossinChris EvansJohn FaulknerKate LundyGavin MarshallAnne McEwenJan McLucasClaire MooreLouise PrattMatt ThistlethwaiteLin ThorpAnne UrquhartPenny Wong 11 Catryna BilykMark BishopJacinta CollinsStephen ConroyDon FarrellMark FurnerAlex GallacherJohn HoggHelen Polley Teller Ursula StephensGlenn Sterle Liberal 21 21 Eric AbetzChris BackDavid BushbyMichaelia CashRichard ColbeckMathias CormannSean EdwardsAlan EgglestonDavid FawcettConcetta Fierravanti WellsMitch FifieldBill HeffernanGary HumphriesDavid JohnstonHelen KrogerStephen ParryMarise PayneMichael RonaldsonScott RyanArthur SinodinosDean Smith Liberal National 4 4 Ron BoswellBarnaby JoyceIan MacdonaldBrett Mason National 3 3 Bridget McKenzieFiona NashJohn Williams Country Liberal 1 1 Nigel Scullion Greens 9 9 Richard Di NataleSarah Hanson YoungScott LudlamChristine MilneLee RhiannonRachel SiewertLarissa WatersPeter Whish WilsonPenny Wright DLP 1 1 John Madigan Independent 1 1 Nick Xenophon Total 26 41 In March 2013 former Labor prime minister Kevin Rudd announced his personal support of same sex marriage 32 Upon returning to the prime ministership in June Rudd promised to introduce same sex marriage legislation within 100 days if Labor won the 2013 federal election while granting its members a conscience vote 33 34 44th Parliament 2013 2016 edit In September 2013 the Tony Abbott led Liberal National Coalition comfortably won government at the federal election Though most Coalition MPs and senators and Abbott himself were opposed to same sex marriage Abbott stated at the time that the party may consider altering its position to be in favour of a free vote on the matter 35 36 By December 2013 deputy Labor Opposition Leader Tanya Plibersek announced that she would introduce a private member s bill in the Parliament seeking the assistance and co sponsorship of Coalition government minister Malcolm Turnbull and a free vote among all parliamentarians 37 In the same month the High Court of Australia struck down a law which briefly legalised same sex marriage in the Australian Capital Territory on the basis that only the federal parliament and not a state or territory parliament had the legal authority to pass such a law 38 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 39 In May 2015 renewed debate on the issue followed the 2015 Irish constitutional referendum that established same sex marriage in Ireland with several Coalition MPs publicly voicing their support for a free vote on same sex marriage legislation 40 41 42 and Labor MP Anthony Albanese stating that contingent on a Liberal Party free vote occurring it is my judgment that there are now majorities in favour of marriage equality in both the House of Representatives and the Senate 43 Capitalising on the renewed momentum Labor leader Bill Shorten introduced the Marriage Amendment Marriage Equality Bill 2015 to the Parliament on 1 June 2015 44 Despite several Coalition MPs criticising Shorten for political opportunism 45 Prime Minister Tony Abbott promised a very full frank and candid and decent debate inside the Liberal Party and also appeared to rule out a referendum on same sex marriage 46 Further momentum for same sex marriage occurred following the U S Supreme Court s ruling in Obergefell v Hodges 47 and in July 2015 details of a cross party same sex marriage bill to be introduced to the Parliament later in the year were revealed 48 49 50 Also in July 2015 at the Labor Party National Conference the party passed a platform amendment allowing the continuation of a free vote on same sex marriage legislation for Labor MPs for the existing parliamentary term and the next This means that following what is likely to be the 2019 federal election Labor MPs will be bound by party policy to support same sex marriage legislation 51 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 vote 52 Abbott was accused by Christopher Pyne of branch stacking the party room by calling a joint meeting with the largely socially conservative Nationals as this reduced the prospects of a free vote being endorsed 53 Following the meeting Abbott announced that whilst the Coalition would maintain its position of marriage being defined as a heterosexual union for the duration of the existing parliamentary term he stated it was his strong disposition to hold a national vote on same sex marriage sometime after the 2016 federal election either in the form of a plebiscite or constitutional referendum 54 Labor Party Opposition Leader Bill Shorten argued the proposal was a delaying tactic and would waste money whilst recommitting to introduce a bill to legalise same sex marriage within 100 days of taking office if successful at the 2016 federal election 55 On 17 August 2015 in defiance of Mr Abbott Liberal backbencher Warren Entsch introduced the aforementioned private members bill saying a divided nation is what we will be if we continue to allow discrimination in relation to marriage on the basis of a person s sexuality 56 On 14 September 2015 Communications Minister Malcolm Turnbull a prominent supporter of same sex marriage challenged Prime Minister Abbott for leadership of the Liberal Party and became the 29th Prime Minister of Australia Same sex marriage lobby groups subsequently began pressuring Prime Minister Turnbull to allow a free vote on Mr Entsch s private members bill or at least bring forward the proposed national plebiscite to the next election or earlier 57 Mr Turnbull subsequently stated in Question Time that the policy to have a plebiscite on the issue after the next election would be retained by the Coalition 5 The issue soon caused tensions within the government 58 59 with the Assistant Minister for Multicultural Affairs and Social Services Concetta Fierravanti Wells stating that support of same sex marriage would place under threat some marginal seats held by the Coalition and Liberal senator Dean Smith questioning the precedent a national vote on the issue could set 60 61 In January 2016 at least two Liberal MPs Cory Bernardi and Eric Abetz stated they would be unlikely to vote in favour of same sex marriage in parliament even if the proposed plebiscite returned a majority yes result 62 Parliamentary committees of both the Senate and House of Representatives were sharply divided on the issue The Senate Legal and Constitutional Affairs Reference Committee formally recommended that a national plebiscite or referendum not be held on the topic of same sex marriage though a dissenting opinion of Coalition senators strongly advocated for a plebiscite 63 64 Similarly a majority of the Parliamentary Joint Committee on Human Rights upheld same sex marriage as in accordance with international human rights laws and principles though a dissenting opinion again of exclusively Coalition senators criticised the committee for erroneous findings and contended that same sex marriage would limit the rights of the child among other concerns 65 These Coalition senators were subsequently labelled bigots scraping the bottom of the barrel by Greens MP Adam Bandt 66 On 12 November 2015 Greens Senator Janet Rice introduced another same sex marriage bill in the 44th Parliament though debate on the bill was promptly adjourned and the bill was never read a second time 67 An attempt by the Labor Opposition to suspend parliamentary business and force an immediate debate on a same sex marriage bill in the House of Representatives was rejected by the Government on 2 March 2016 the house voting down the motion 83 to 57 68 On 6 March 2016 Attorney General George Brandis revealed the government would seek to hold the proposed plebiscite in 2016 following that year s election if the government were re elected Brandis stated that in such an event a bill to amend the Marriage Act would be introduced to the parliament and that he would expect there is little virtually no doubt at all that if the public votes yes the parliament will follow 69 During the course of the 2016 federal election campaign several Coalition MP s said they would consider voting no to same sex marriage in the parliament even if a majority of the national electorate voted in favour creating a split within the Coalition 70 Turnbull confirmed that Coalition politicians could vote against same sex marriage regardless of the outcome of a plebiscite 71 The government was narrowly re elected at the election 72 45th Parliament 2016 2019 edit nbsp Sample image of the survey form See also Australian Marriage Law Postal Survey and Marriage Amendment Definition and Religious Freedoms Act 2017 On 18 July 2016 Prime Minister Turnbull revealed the proposed plebiscite might not occur until the first half of 2017 and left open the possibility of the Senate rejecting legislation to create the plebiscite Notwithstanding this Turnbull committed to holding it as soon as is practicable 73 The opposition Labor Party supported same sex marriage in its national platform while allowing its parliamentary members a conscience vote on same sex marriage legislation at the time 74 On 20 August 2016 several media outlets reported that the government would announce an intention to hold the plebiscite in February 2017 75 76 77 whilst several Coalition MPs publicly stated that any defeat of legislation to create the plebiscite would result in the end of debate on the issue for at least 3 years 78 On 26 August 2016 Greens leader Richard Di Natale confirmed that the party which holds 9 seats in the Senate would oppose plebiscite enabling legislation 79 Three days later Nick Xenophon confirmed that his party made up of three Senators and one member of the House of Representatives would also vote against plebiscite legislation in the parliament citing the financial cost of the plebiscite and expressing a desire for same sex marriage legislation to simply be passed in parliament 80 The decision meant that in order for the plebiscite to proceed it would have needed to receive the support of the opposition Labor Party who had yet to formally respond to the proposal but had previously labelled it a second best option 81 On 12 September 2016 two private member s bills legalising same sex marriage were introduced into the House of Representatives one by Labor leader Bill Shorten 82 and another by Greens MP Adam Bandt 83 The commitment that was announced under my prime ministership and which I m pleased to say has been maintained under the current prime ministership the commitment is that at least for the life of this Parliament the Marriage Act will not be changed without putting it to the people first Tony Abbott former Prime Minister and supporter of a plebiscite on same sex marriage 23 March 2017 84 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 85 Additionally 15 million of taxpayer funding will be equally distributed to the official yes and no campaigns 86 If passed by the parliament the plebiscite would be held on 11 February 2017 87 On 11 October 2016 the Labor Opposition announced it had officially resolved to oppose the plebiscite legislation meaning that it lacked majority support in the Senate and the plebiscite could not go ahead 88 Debate on the Plebiscite Same Sex Marriage Bill 2016 was held in the House between 11 20 October 89 until the Government moved to end debate on the second reading and move for a vote The bill passed the House 76 67 votes and moved to the Senate 90 91 Debate on the bill was held in the Senate throughout the day and evening of 7 November The bill was defeated in the Senate at the second reading stage by 33 votes to 29 92 6 93 Following the result in the Senate Prime Minister Turnbull stated the government had no plans to take any other measures on this issue 94 Details of 2016 Senate vote on same sex marriage plebisicte Plebiscite Same Sex Marriage Bill 2016 Second Reading 95 Party Votes for Votes against Pairs Abstentions Labor 26 22 Catryna Bilyk teller Carol BrownDoug CameronKim CarrAnthony ChisholmJacinta CollinsSam DastyariPat DodsonDon FarrellAlex GallacherKaty GallagherKimberley KitchingSue LinesJenny McAllisterMalarndirri McCarthyClaire MooreDeborah O NeillHelen PolleyLouise PrattGlenn SterleMurray WattPenny Wong 4 Chris KetterGavin MarshallLisa SinghAnne Urquhart Liberal 21 15 Chris BackSimon BirminghamDavid Bushby teller Michaelia CashMathias CormannJonathon DuniamDavid FawcettConcetta Fierravanti WellsMitch FifieldJane HumeStephen Parry The President Marise PayneLinda ReynoldsAnne RustonZed Seselja 6 Eric AbetzCory BernardiJames PatersonScott RyanArthur SinodinosDean Smith Abstained Greens 9 7 Sarah Hanson YoungNick McKimLee RhiannonJanet RiceRachel SiewertLarissa WatersPeter Whish Wilson 2 Richard Di NataleScott Ludlam Liberal National 5 5 George BrandisIan MacdonaldJames McGrathMatt CanavanBarry O Sullivan One Nation Australia 4 4 Brian BurstonRod CulletonPauline HansonMalcolm Roberts National 3 3 Bridget McKenzieFiona NashJohn Williams Xenophon Team 3 3 Stirling GriffSkye Kakoschke MooreNick Xenophon Country Liberal 1 1 Nigel Scullion Lambie Network 1 1 Jacqui Lambie Justice 1 1 Derryn Hinch Liberal Democrats 1 1 David Leyonhjelm Total 29 33 13 A Senate committee was subsequently launched to discuss the text of the Government s draft same sex marriage bill which was published by the Attorney General s office during the parliamentary debate on the plebiscite 96 97 The bill was to have been debated in and likely passed by the parliament in the event the plebiscite proceeded and achieved a majority yes vote The committee gathered submissions from lawyers religious and social service groups with particular consternation regarding provisions in the bill allowing civil celebrants to refuse to officiate at same sex marriages 98 99 The bill would also allow religious bodies and organisations scope to refuse to provide goods and services reasonably incidental to the solemnisation of a same sex marriage 97 During committee hearings opponents of same sex marriage requested additional religious freedom protections in the event of same sex marriage ever being legalised 100 The committee issued its findings to the Senate and public on 15 February 2017 101 Significant among the committee s findings was a unanimous recommendation that a new subdivision of marriage celebrant titled Religious Marriage Celebrants be created to capture civil celebrants of a religious inclination who would be given the same protections afforded to ministers of religion 102 101 The committee also rejected the proposal to allow civil celebrants to refuse to perform same sex weddings on the basis of conscientious belief declaring there was no need to disturb decades of anti discrimination law and practice in Australia 102 101 On 4 February 2017 several Coalition MPs supporting same sex marriage stated to Fairfax Media they would push to abandon the government s plebiscite policy over the following fortnight in favour of a free vote on the floor of Parliament 103 A number of conservative Coalition MPs subsequently stated that such a move would be a betrayal of trust with the electorate and pledged to fight any attempt to change Coalition policy on the issue 104 Following the publication of the Senate Committee s report into the Attorney General s draft bill see above speculation increased that the report could form the basis for a cross party same sex marriage bill in the Senate to be co sponsored by gay Liberal Party Senator Dean Smith Labor the Greens the Nick Xenophon Team and possibly Senator Derryn Hinch 102 By mid March the issue had once again split the government with a private and sustained effort by moderate Liberal MPs to move for a free vote allegedly hitting a brick wall following opposition by more conservative members of the party room Those opposed to the reform in the Coalition government argued a recent public letter urging the Prime Minister to legislate for same sex marriage signed by 20 of Australia s most prominent CEO s constituted an effort to bully the government and thus made it less likely a free vote in the parliament would happen 105 106 Subsequently it was revealed in a Senate Committee hearing that the government had sought official advice on conducting a plebiscite via postal mail a proposal which received a mixed response 107 Soon after that the issue of same sex couples being unable to divorce in Australia following a marriage in an overseas jurisdiction where same sex marriage is legal emerged 108 In August 2017 the United Nations Human Rights Committee ruled that the lack of an official same sex divorce scheme in Australia constituted a breach of human rights and stated the Government of Australia was obliged to provide an effective remedy 109 If the Liberals come out with a conscience vote it won t be me only the whole show would blow up Turnbull s leadership would become untenable and he d no longer be prime minister They d push for Peter Dutton or Greg Hunt as leader and deputy leader or we d be going to a general election Andrew Broad National Party MP for the Division of Mallee 7 August 2017 110 Liberal MPs who raised the prospect of a free vote in the party in June 2017 had their advances rejected by several members of the Coalition who insisted no change could be made without first having a plebiscite 111 112 113 On 9 July 2017 Liberal Senator Dean Smith announced he was drafting a bill to legalise same sex marriage The bill would include legal protections for celebrants who did not wish to perform same sex marriages Smith stated he intended to bring the bill to the Liberal party room for debate in due course with the hope of having a conscience vote on the legislation before the end of the year though the prospect of crossing the floor was also raised 114 115 116 The move was countered by a fresh push from several conservative members of the government including Immigration Minister Peter Dutton to instead have a plebiscite conducted by postal mail 117 118 119 The issue was brought before the Liberal party room on 7 August 2017 when Parliament resumed sitting following the winter break 120 121 Up to five Liberal MPs in the lower house and one Senator stated they would consider crossing the floor to bring on debate on a same sex marriage bill even if the party rejected a free vote and maintained its plebiscite policy 122 The legislation drafted by Senator Smith was revealed the day prior to the party room meeting 123 124 125 In response to the prospect of the Liberal Party potentially moving to a free vote Nationals MP Andrew Broad stated he would quit the Coalition and sit on the crossbench saying the likely outcome of such a decision would be the fall of the Turnbull government 110 At the party room meeting an overwhelming majority of MPs voted to maintain the plebiscite policy moving for the legislation to be put back to the Senate the same week 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 did not require legislative approval to proceed 126 Several same sex marriage groups disagreed and committed to challenge the postal survey in the High Court 127 128 The government released details of the proposed postal survey the following day claiming 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 If the postal survey returned a majority yes verdict the government announced it would facilitate a private member s bill in the final sitting fortnight of the parliamentary year which would legalise same sex marriage 129 130 On 9 August 2017 the Senate rejected a government initiated motion to debate the Plebiscite Same Sex Marriage Bill 2016 the vote on the motion tied at 31 31 131 This cleared the way for the Finance Minister Mathias Cormann to make an immediate appropriation to the Australian Bureau of Statistics ABS the purpose of conducting the postal survey 132 133 The Treasurer Scott Morrison then issued an official direction to the ABS requiring it to collect information relating to the people s views on same sex marriage The direction stated that the last day citizens would have to include their information on the electoral roll would be 24 August 2017 134 135 Immediately following the failed motion in the Senate same sex marriage advocates Shelley Argent national spokeswoman of Parents and Friends of Lesbians and Gays and Felicity Marlowe head of Rainbow Families along with independent MP Andrew Wilkie announced they would challenge the legality of the postal survey in the High Court 136 The group cited three chief legal concerns with the postal survey 136 whether the government may be exceeding its executive authority whether the direction to conduct the vote and the appropriation to pay for it are in fact urgent as necessitated by the Appropriations Act whether the Australian Bureau of Statistics has the legal authority to administer a national vote of this kind given that a postal vote on same sex marriage may not be considered statistic gathering of the sort the ABS is authorised to undertake On 10 August the Human Rights Law Centre filed a legal action on behalf of Australian Marriage Equality and Greens Senator Janet Rice 137 The court agreed to hear arguments in the cases on 5 and 6 September 2017 138 On 7 September 2017 the court handed down its ruling finding that the survey was lawful and allowing it to proceed as scheduled 139 140 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 141 The bill to that effect the Marriage Amendment Definition and Religious Freedoms Bill 2017 was introduced by Senator Dean Smith The bill amends Section 5 of the Marriage Act to define marriage in Australia as the union of 2 people 142 It also removes the ban on overseas same sex marriages being recognised in Australia including ones that occurred before the expected law change 143 Additionally the bill includes protections for religious celebrants ministers of religion and bodies established for a religious purpose to not be obligated to perform or provide services and facilities to marriages they objected to 142 The bill passed the Senate by 43 votes to 12 on 29 November 2017 Several amendments to the bill proposed by conservative Coalition MPs designed to increase protections and exemptions offered to individuals and businesses opposed to same sex marriage were defeated 144 145 146 The bill passed the House of Representatives without amendment on 7 December 2017 147 148 The bill then received royal assent from the Governor General on 8 December 2017 becoming a formal Act of Parliament 149 It went into effect on 9 December 2017 2 Same sex marriages lawfully entered into overseas became recognised from that date 2 and the first weddings under the amended law occurred after the normal one month waiting period from 9 January 2018 150 151 152 Within a week of the legislation s passing at least one same sex couple married under the laws of another country had applied for a divorce 153 Several same sex couples successfully applied for an exemption from the one month waiting period between completing a notice of intended marriage form and the wedding ceremony 154 and the first legal same sex wedding under Australian law was held on 15 December 2017 with further weddings occurring the following day 155 156 157 State and territory laws editStates and territories have long had the ability to create laws with respect to relationships though Section 51 xxi of the Constitution of Australia prescribes that marriage is a legislative power of the federal parliament 158 In December 2013 the High Court of Australia ruled in relation to a territory based same sex marriage law of the Australian Capital Territory ACT that the federal Marriage Act which defined marriage as the union of a man and woman precluded states and territories from legislating for same sex marriage 159 As a result only the federal parliament can legislate for same sex marriage whilst states and territories almost certainly cannot Since the Commonwealth introduced the Marriage Act Cth 1961 marriage laws in Australia have been regarded as an exclusive Commonwealth power The precise rights of states and territories with respect to creating state based same sex marriage laws have been complicated since the Howard government amendment to the Marriage Act in 2004 to define marriage as the exclusive union of one man and one woman to the exclusion of all others 160 In their December 2013 ruling striking down the ACT s same sex marriage law the High Court effectively determined that all laws with respect to marriage were an exclusive power of the Commonwealth and that no state or territory law legalising same sex marriage or creating any type of marriage could operate concurrently with the federal Marriage Act the kind of marriage provided for by the Marriage Act is the only kind of marriage that may be formed or recognised in Australia 159 As a result the only possible method for same sex marriage legalisation to occur in Australia is via legislation passed into law by the Federal Parliament only Prior to that ruling reports released by the New South Wales Parliamentary Committee on Social Issues Archived 10 February 2017 at the Wayback Machine and the Tasmanian Law Reform Institute have found that a state parliament has the power to legislate on the topic of marriage including same sex marriage However if New South Wales chooses to exercise that power and enact a law for same sex marriage the law could be subject to challenge in the High Court of Australia 161 and that no current arguments present an absolute impediment to achieving state based or Commonwealth marriage equality 162 With respect to territories the ACT Government obtained legal advice that its bill seeking to legalise same sex marriage could operate concurrently with the federal Government s statutory ban on recognising same sex marriage 163 The Abbott government s acting Solicitor General advised the federal Attorney General George Brandis that the ACT s same sex marriage law was inconsistent with the federal Government s laws 164 whilst other experts rated the ACT s law as doubtful or impossible to pass judicial scrutiny 165 166 Those experts were proven correct when on 12 December 2013 the High Court of Australia struck down the Australian Capital Territory s same sex marriage law Aside from the Australian Capital Territory Tasmania is the only other state or territory to have passed same sex marriage legislation in a chamber of its legislature The state lower house passed same sex marriage legislation by 13 11 votes in September 2012 though the state upper house subsequently voted against this legislation a few weeks later by a vote of 8 6 167 168 Both houses have since passed motions giving in principle symbolic support for same sex marriage 169 New South Wales amended its law in November 2014 to allow overseas same sex marriages to be recognised on the state s relationship register 170 171 172 As of December 2016 six Australian jurisdictions Tasmania Australian Capital Territory New South Wales South Australia Queensland and Victoria comprising 90 of Australia s population recognise same sex marriages and civil partnerships performed overseas providing automatic recognition of such unions in their respective state registers 173 Australian Capital Territory edit Main article Marriage Equality Same Sex Act 2013 See also Recognition of same sex unions in the Australian Capital Territory On 13 September 2013 the Australian Capital Territory ACT Government announced that it would introduce a bill to legalise same sex marriage following a decade long attempt to legislate in the area 174 We ve been pretty clear on this issue for some time now and there s overwhelming community support for this Chief Minister Katy Gallagher said We would prefer to see the federal parliament legislate for a nationally consistent scheme but in the absence of this we will act for the people of the ACT The Marriage Equality Bill 2013 will enable couples who are not able to marry under the Commonwealth Marriage Act 1961 to enter into marriage in the ACT It will provide for solemnisation eligibility dissolution and annulment regulatory requirements and notice of intention in relation to same sex marriages 175 On 10 October 2013 federal Attorney General George Brandis confirmed that the Commonwealth Government would challenge the proposed ACT bill stating that the Coalition Government has significant constitutional concerns with respect to the bill 176 The bill was debated in the ACT Legislative Assembly on 22 October 2013 and passed by 9 votes to 8 177 178 Under the legislation same sex marriages were legally permitted from 7 December 2013 179 180 181 As soon as the ACT act had been passed the Commonwealth launched a challenge to it in the High Court which delivered judgment on 12 December 2013 182 183 As to the relation between the ACT act and federal legislation the Court found that the ACT act was invalid and of no effect because it was inconsistent in terms of the Australian Capital Territory Self Government Act 1988 Cth with the federal Marriage Act 1961 Cth It was inconsistent both because its definition of marriage conflicted with that in the federal act and because the federal act was exclusive leaving no room for any other definition in legislation of a state or a territory However the Court went on to determine that the word marriage in Constitution s51 xxi includes same sex marriage thus clarifying that there is no constitutional impediment to the Commonwealth legislating for same sex marriage in the future It can do so by amending the definition of marriage in the Marriage Act Position of political parties editPolitical support for same sex marriage has lagged behind public opinion 184 When marriage was officially restricted to opposite sex couples by the Commonwealth Parliament in 2004 both the Coalition and the Australian Labor Party voted to prevent same sex marriage with the Australian Greens consistently in favour 184 Since that time Labor has moved to supporting same sex marriage with members bound to vote in favour from 2019 while a number of Coalition politicians have also expressed their support for same sex marriage 184 The political shift in favour of same sex marriage is attributed to the weakening political influence of social conservatives including the Australian Christian Lobby 185 Official party positions on same sex marriage Party Year Leader s Position Notes ALP Australian Labor Party 2004 2011 Mark Latham Kim Beazley Kevin Rudd PM Julia Gillard PM Oppose Under the leadership of Mark Latham in 2004 Labor supported the statutory ban on same sex marriage to appease its right wing factions and avoid losing electorates in western Sydney 186 The right wing factions were historically linked to socially conservative elements of the Roman Catholic Church while western Sydney contained a higher proportion of immigrants who statistically are more hostile to same sex marriage 184 After being elected to government under Kevin Rudd in 2007 the party maintained its opposition to same sex marriage 187 The policy was maintained by Julia Gillard after she replaced Rudd with her pledging to the Australian Christian Lobby not to introduce same sex marriage after the 2010 election 23 By opposing same sex marriage during this time both Rudd and Gillard sought to increase the ALP s appeal to aspirational socially conservative voters 185 2011 2019 Julia Gillard PM Kevin Rudd PM Bill Shorten Support conscience vote no public vote Although Gillard maintained her opposition to same sex marriage in 2011 internal lobbying resulted in a change to the party platform at the 2011 national conference when the party voted to support same sex marriage in its platform Gillard sponsored a motion to allow Labor politicians a conscience vote rather than bind them to the new policy which was passed 208 184 25 188 After Gillard was deposed by Rudd he promised to introduce same sex marriage legislation within 100 days if Labor won the 2013 election while allowing a conscience vote for ALP politicians 33 After the Coalition changed its policy in favour of a public vote on the issue new leader Bill Shorten indicated the ALP s opposition despite having expressed support for a public vote in 2013 189 The ALP caucus confirmed its opposition to a plebiscite in 2016 190 and voted both times against the Coalition s plebiscite bill in the Senate 131 2019 Bill Shorten Support no conscience vote At the 2015 Labor Party national conference Tanya Plibersek and the Left faction agitated for Labor MPs to be bound to vote in favour of same sex marriage Following negotiations with leader Bill Shorten the party compromised by passing a platform amendment allowing the continuation of a free vote on same sex marriage legislation for Labor MPs for two more terms with MPs bound by party policy to support same sex marriage legislation from the 46th Parliament onwards 191 LIB NAT Coalition Liberal Party and Nationals 2004 2015 John Howard PM Brendan Nelson Malcolm Turnbull Tony Abbott PM Oppose no conscience vote During the Howard government Coalition policy was strongly against same sex marriage and introduced legislation to ban it 186 In addition to his personal beliefs Howard used anti LGBT policies as a wedge issue against the opposition Australian Labor Party 186 2015 present Tony Abbott PM Malcolm Turnbull PM Subject to public vote no conscience vote The official policy of opposition persisted until backbench pressure led to Tony Abbott introducing a policy to hold a plebiscite which was retained by his successor Malcolm Turnbull 5 Turnbull was criticised by LGBT advocates for maintaining a policy for internal party politics that he had previously opposed 192 The issue is a divisive one in the Liberal Party Whilst an overwhelming majority of Liberal MPs support a vote of the people prior to any change to the law some Liberals such as Tony Abbott advocate a no vote 193 whilst others such as Simon Birmingham have indicated their willingness to campaign for a yes vote 194 Coalition MPs will be free to vote against same sex marriage regardless of the outcome of the public vote 195 GRN Australian Greens 2004 present Bob Brown Christine Milne Richard Di Natale Support no public vote The Greens have consistently voted in favour of same sex marriage since 2004 using the tag line Every vote Every MP Every time in election advertising 196 They opposed the 2016 plebiscite proposal 197 Greens Senator Sarah Hanson Young and leader Richard Di Natale confirmed the party would advocate for a yes vote if legal challenges to the survey were unsuccessful 198 Greens Senator Janet Rice was a party to a failed High Court challenge to the postal survey 199 CON Australian Conservatives 2016 present Cory Bernardi Oppose support public vote Bernardi formed a close relationship with lobby groups Australian Christian Lobby and Marriage Alliance during the plebiscite debate and has issued statements opposing same sex marriage on several occasions 200 LDP Liberal Democratic Party 2014 present David Leyonhjelm Support support public vote As libertarians the LDP and Leyonhjelm have consistently supported same sex marriage 201 Although initially opposed to the Coalition s plebiscite proposal Leyonhjelm later supported it on the basis that allowing a public vote would be the fastest way to bring about the change 202 JLN Jacqui Lambie Network 2013 present Jacqui Lambie Neutral support public vote Although Lambie is opposed to same sex marriage and has voted against it she supports a public vote and would vote in favour if a majority of Australians voted to support change 203 ONP Pauline Hanson s One Nation 2016 present Pauline Hanson Neutral support public vote At the 2016 election Hanson indicated that the party would prefer a referendum rather than a plebiscite for the introduction of same sex marriage 204 Hanson also stated that although she did not personally support same sex marriage if a majority of Australians voted in favour of it in a plebiscite she would vote for it in the Senate 205 DHJP Derryn Hinch s Justice Party 2016 present Derryn Hinch Support no public vote Hinch supports same sex marriage and opposes a public vote as a waste of money 206 KAP Katter s Australian Party 2013 present Bob Katter Oppose support public vote Katter s strong opposition to same sex marriage is reflected in his party s platform although one candidate expressed support for same sex marriage in the past which led to internal divisions 207 Katter voted in favour of the Coalition s proposed plebiscite 208 209 NXT Nick Xenophon Team 2016 present Nick Xenophon Support no public vote NXT members support same sex marriage and oppose holding a plebiscite on the grounds that the issue should be resolved by Parliament a plebiscite would be non binding and the cost of a public vote is wasteful 210 211 Independents edit In the House of Representatives Andrew Wilkie and Cathy McGowan support same sex marriage and prefer a parliamentary vote 212 In the Senate independent Senator for South Australia Lucy Gichuhi who opposes same sex marriage 213 voted in favour of the Coalition s proposed plebiscite in 2017 214 See also editSame sex marriage in Australia LGBT rights in Australia Australian Marriage Law Postal SurveyReferences edit a b Fact file High Court decision on ACT same sex marriage laws ABC News Australian Broadcasting Corporation 13 December 2013 Retrieved 11 July 2017 a b c Same sex marriage signed into law by Governor General first weddings to happen from January 9 ABC News 8 December 2017 a b c d McKeown Deirdre 1 December 2017 Chronology of same sex marriage bills introduced into the federal parliament a quick guide www aph gov au Canberra Parliamentary 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denies ban on same sex campaigning Sky News Australia 12 August 2017 Norman Jane 24 June 2016 Coalition MPs can vote against gay marriage regardless of plebiscite result ABC News Australian Broadcasting Corporation Retrieved 7 October 2017 Sainty Lane 15 March 2016 The Greens Blocked A Vote On Their Own Marriage Equality Bill And Shit Got Real BuzzFeed Retrieved 4 December 2016 Karp Paul 25 August 2016 Greens to block same sex marriage plebiscite saying young lives at stake The Guardian Retrieved 4 December 2016 Tweet by Sarah Hanson Young Twitter 10 August 2017 Bob s right time to throw everything we got at this to win the Yes campaign for MarriageEquality BobBrownFndn CHOOSE LOVE VOTE YES The Greens August 2017 Archived from the original on 25 January 2020 Retrieved 23 January 2020 Australian Marriage Equality Ltd amp Rice v Minister for Finance amp Kalisch 2017 HCATrans 152 No M106 of 2017 Christians plan to target Coalition The Australian 8 August 2017 Potts Andrew 11 July 2014 New Australian Liberal Democratic Party senator promises marriage equality bill Gay Star News Archived from the original on 7 October 2017 Retrieved 7 October 2017 Leyonhjelm will support plebiscite legislation OUTInPerth 7 August 2016 Retrieved 7 October 2017 Lavigne Luca 22 February 2017 Jacqui Lambie doesn t believe in marriage equality But she s prepared to support it Mamamia Retrieved 7 October 2017 I m not preaching hate Hanson stands by Islam royal commission call ABC News Australian Broadcasting Corporation 4 July 2016 Retrieved 7 October 2017 Hanson says she d vote for gay marriage SBS News Special Broadcasting Service 24 September 2016 Retrieved 7 October 2017 Derryn Hinch Labor s Sam Dastyari share cake kiss outside Parliament as gay marriage debate continues The Daily Telegraph Australia 10 August 2017 Retrieved 12 August 2017 Lester Tim Bright Damien 13 February 2013 Same sex marriage off agenda at Katter party conference The Sydney Morning Herald Fairfax Media Retrieved 7 October 2017 Koziol Michael 20 October 2016 Same sex marriage Bill with tortured past passes the House with scarcely a hug or a handshake The Sydney Morning Herald Fairfax Media Retrieved 7 October 2017 Bob Katter voted very strongly for a same sex marriage plebiscite theyvoteforyou org au They Vote For You Retrieved 7 October 2017 Karp Paul 29 August 2016 Nick Xenophon confirms party will block same sex marriage plebiscite The Guardian Retrieved 7 October 2017 Govt still short of plebiscite numbers Sky News Australian News Channel Pty Ltd 1 August 2017 Retrieved 7 October 2017 Patel Uma 8 July 2016 Where do the crossbenchers stand on the major issues ABC News Australian Broadcasting Corporation Retrieved 7 October 2017 Jean Peter Senator s bizarre gay marriage warning News com au News Corp Australia Retrieved 7 October 2017 Senate Again Rejects Compulsory Plebiscite On Same Sex Marriage QNews 7 August 2017 Retrieved 7 October 2017 External links editFor Better or Worse Four Corners documentary about the history of the political debate regarding same sex marriage in Australia Retrieved from https en wikipedia org w index php title History of same sex marriage in Australia amp oldid 1217468778, wikipedia, wiki, book, books, library,

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