M A R R I A G E A S T H E L A S T F R O N T I E R? S A M E - S E X R E L AT I O N S H I P R E C O G N I T I O N I N A U S T R A L I A

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doi:10.1093/lawfam/ebr007

Advance Access Publication 10 May 2011

M A R R I A G E A S T H E ‘ L A S T F R O N T I E R ’ ?

S A M E - S E X R E L AT I O N S H I P R E C O G N I T I O N

I N A U S T R A L I A

N O R M A N N W I T Z L E B *

*Senior Lecturer, Faculty of Law, Monash University, Australia.

E-mail: Normann.Witzleb@law.monash.edu.au. The author would like to thank Ms Siobhan Nims for her research assistance and Associate Professor Thomas Crofts, University of Sydney,

for his insightful comments on a draft of this article

ABSTRACT

During the last decade, the law relating to same-sex couples has changed beyond recognition in many parts of the Western world. This article provides an analysis of the current legislative approach to same-sex relationship recognition in the various Australian jurisdictions. Australian law now provides largely equal protection to all couples, regardless of marriage or gender. The article argues that, in their struggle for equal rights, same-sex couples benefited from the fact that Australia has largely decoupled protection of relationships from the status of marriage. This inclusive approach diminished the legal significance of marriage as a vehicle for achieving protection. At the same time, the federal Government entrenched marriage as a reserve of opposite-sex couples. While some Australian state and territory jurisdictions have responded with registers of de facto relationships, registration offers no equivalent to marriage because it lacks the special cultural significance, the ceremonial aspects, and the social status of marriage. The article then comments on the current political debate, which focuses on challenging the same-sex marriage ban as a denial of legal equality. In its final part, the article considers the constitutional questions raised by demands for same-sex marriage in Australia. It will also discuss possible pathways towards, as well as chart the political obstacles in the way of, marriage equality.

The Australian laws relating to same-sex couples have undergone dramatic change over the last decade. In 1999, New South Wales (NSW) was the first Australian jurisdiction to legally recognise same-sex relationships in a wide range of contexts.1_{Subsequently, all other states}

and territories implemented similar reforms. Comprehensive recognition across all Australian jurisdictions was finally achieved in 2008 when laws at federal level were amended to remove discrimination against same-sex couples.2_{As a result, same-sex and opposite-sex}

couples are now treated equally in most areas of Australian law. The last

at Pennsylvania State University on March 5, 2016

http://lawfam.oxfordjournals.org/

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frontier of homosexual rights advocates is marriage equality.3_{It is}

widely accepted that legislation for marriage equality must originate at federal level and that legislative power of the states and territories is limited to introducing relationship registers. While opening up the institution of marriage to same-sex couples already appears to enjoy popular support, Australia’s major parties continue to drag their heels on this issue. The current Labour Federal Government opposes same-sex marriage and instead favours a nationally consistent scheme of relationship registration. It thus remains uncertain when equal marriage rights will become a reality.

This article outlines the milestones towards comprehensive legal equality of same-sex couples in Part I. Australia has gradually aligned the rights of opposite-sex de facto couples with those of married couples and subsequently expanded this protection to give equal rights to same-sex couples. In this way, same-same-sex couples benefited from the fact that relationship protection in Australia is largely decoupled from marriage. Part II provides a more detailed analysis of the current legislative approach to same-sex relationship recognition in the various Australian jurisdictions. Through this inclusive approach to relationship recognition, Australian same-sex couples have in most areas achieved largely equal rights to opposite-sex couples. Nonetheless, the institution of marriage retains a special cultural and social significance in Australian society. The prohibition of same-sex marriage denies lesbians and gay men access to this particularly solemn and ceremonial act of expressing commitment to their life partner. The partnership registration schemes offered in some jurisdictions lack comparable symbolic value. Marriage equality has therefore now become a major focal point of Australia’s political discourse. Part III of the article considers the constitutional questions raised by demands for same-sex marriage. It will also discuss possible pathways towards same-sex marriage as well as chart the obstacles in the way of marriage equality.

M I L E S T O N E S T O W A R D S E Q U A L R I G H T S F O R S A M E - S E X C O U P L E S

All Australian states and territories recognise opposite-sex as well as same-sex de facto relationships of varying descriptions and definitions. Like other jurisdictions based on English common law, Australian law has for many years acknowledged that two persons can, without being formally married to one another, live together ‘as husband and wife’. Once concerns about the morality of such de facto relationships had been overcome, Australian law began to acknowledge the existence and legal significance of cohabitation and provided non-married

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heterosexual couples with a similar degree of protection to that enjoyed by married spouses. Intervention was required in particular where the parties had separated and required a regulation of the financial consequences of separation. In 1984, NSW passed the De Facto Relationship Act, which was the first enactment to provide a specific mechanism for property settlement when de facto couples split up. This legislation in Australia’s most populous state set the trend and was followed by similar legislation in the states of Victoria, South Australia, and Tasmania, as well as the Northern Territory.4_{The reforms were}

prompted by the concern that judicial recourse to the general principles of common law and equity had proven inadequate and inappropriate to respond to the need of separating couples. Since then, the recognition of de facto relationships in Australia has been largely driven by legislative developments. Parliaments responded, with varying degrees of delay, where judicial decision making or community advocacy pointed to new and unresolved needs.

The availability of a protective mechanism for non-married opposite-sex couples appears to have pre-defined the approach adopted to address demands for non-discrimination by same-sex couples (see also

Graycar and Millbank, 2007). Their legal recognition had to overcome more significant obstacles as homosexual relationships were not only regarded as immoral but, in some Australian states until the 1990s, had a criminal stigma attaching to them. As a result, their recognition was not only more controversial but also took a longer time to achieve and has been somewhat uneven. The legal mechanism of achieving broad equality was generally through expanding the definitions of ‘de facto relationships’ by clarifying that a couple was recognised irrespective of their gender. Same-sex relationships were therefore treated equally with other non-marital relationships. The institution of marriage, on the other hand, remained the reserve of heterosexual couples.

Initially, legislation was concerned with allowing non-married opposite-sex couples to apply to the court for adjustment of their property and financial interests after their relationship broke down. Reforms to extend this protection to de facto partners of the same sex first began, with tentative steps, when the Australian Capital Territory (ACT) enacted the Domestic Relationships Act 1994. Under this Act, any two adults in a personal relationship in which one provided personal or financial support to the other could apply for property division. This revolutionary piece of legislation made same-sex couples, non-cohabitating couples, as well as non-couples eligible for adjustment of property interests on separation. The first significant enactment aimed at comprehensively removing discrimination of same-sex couples was the Property (Relationships) Legislation Amendment Act 1999 (NSW). This Act was at once narrower and broader than its ACT counterpart. It was more limited because it merely removed the

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reference to gender from the previous definition of ‘de facto relationship’ in the De Facto Relationship Act 1984 (NSW) but still required cohabitation and excluded non-couples. It was broader because it went beyond property settlement on separation and amended around 20 pieces of legislation on a range of matters including inheritance, accident compensation, legal aid, and stamp duty. Where a definition of de facto relationship in existing law failed to include same-sex couples, these definitions were amended or replaced so that the law would no longer apply differently to couples of opposite sex and same sex. As a result of these reforms in NSW and similar enactments in all other states and territories, same-sex couples achieved equality with heterosexual couples in many areas of the law.5_{The degree to}

which parliaments engaged in a consultative process or relied on the work of law reform bodies before enacting legislation, and the zeal with which discriminatory laws were removed, differed from jurisdiction to jurisdiction (see also Graycar and Millbank, 2007). The last state to pass comprehensive reforms granting legal recognition to same-sex de facto couples was South Australia which adopted its Statutes Amendment (Domestic Partner) Act 2006. The intention of such ‘omnibus legislation’ was generally to end existing discrimination even though there remain a few areas in which same-sex couples are still treated differently. In 2008, NSW enacted the Miscellaneous Acts Amendment (Same-Sex Relationships) Act 2008 that amended a further 55 pieces of NSW legislation. These amendments were primarily concerned with further equalising same-sex relationships with opposite-sex relationships under the law and closing potential loopholes.

C U R R E N T P R O T E C T I O N O F S A M E - S E X R E L A T I O N S H I P S : P R E S U M P T I V E R E C O G N I T I O N A N D S U B S T A N T I A L E Q U A L I T Y When NSW amended its De Facto Relationships Act 1984 in 1999, it inserted a definition that omitted all reference to the gender of the partners. Until then, ‘de facto spouse’ was ‘in relation to a man, a woman who is living or has lived with a man as his wife on a bona fide domestic basis although not married to him’ (and, vice versa, in relation to a woman). The (re-named) Property (Relationships) Act 1984 (NSW) then defined a de facto relationship as being ‘between two adult persons . . . who live together as a couple, and . . . who are not married to one another or related by family’.6

Since then, most states and territories have adopted similar definitions of de facto relationships that do not refer to marriage and expressly or impliedly provide that the gender of the parties does not affect their recognition as a de facto couple. ‘De facto relationship’ is the term most commonly used in Australian law to describe an unmarried couple

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who enjoys legal protection. Where legislation refers to a ‘spouse’, this now generally includes a partner of a ‘de facto relationship’, regardless of their gender. Victoria, the ACT and South Australia have, with differing definitions, opted for the terms ‘domestic relationship’ and ‘domestic partner’, whereas the Tasmanian legislation protects unmarried couples when they are in a ‘significant relationship’. Western Australia and, modelled on that state’s reforms, the Northern Territory stand out in expressly stating that legal recognition will be extended to those relationships, regardless of gender, which are ‘marriage-like’.7

While it could be speculated to what extent these differences in terminology reveal differences in legislative acceptance of diverse personal relationships, they are generally not regarded as having substantial consequences.

Regardless of nomenclature, all jurisdictions operate under a factual model of relationship recognition.8_{This means that the parties attract}

particular rights and obligations if their relationship conforms to the legislatively prescribed criteria and does not depend on a formal act of mutual commitment. An obvious disadvantage for parties who do not wish to attract any (or, only limited) rights or obligations as a couple, is that this approach is less responsive to the partners’ actual legal intentions. Such a model has difficulty accommodating the needs of those couples who enter a de facto relationship solely for the purpose of being in that relationship but do not wish for any particular legal consequences to arise from that partnership. In essence, this model confers many of the rights and responsibilities that accompany a marital relationship, eg in relation to property and succession, upon those who, like opposite-sex couples, do not wish or, like same-sex couples, are

unable to marry. Couples who do not wish to incur these responsibilities

have the ability to opt out of many of these provisions.

The question of whether the relationship between the parties satisfies the legislative definition is determined by reference to a non-exhaustive catalogue of criteria. This can create uncertainty when partners need to establish the existence and duration of their relationship. Generally, the parties need to submit evidence of their relationship on each occasion the relationship is legally relevant. In some jurisdictions, partners are now able to register their partnership or to apply to the court for a declaration9_{that the partnership exists. Tasmania, Victoria,}

and the ACT allow same-sex as well as opposite-sex couples to register their relationship. The registration provides conclusive evidence of the existence of the relationship for the purposes of the law of that jurisdiction. Outside the jurisdiction, the legal relevance of registration depends on the context in which the existence or non-existence of the relationship needs to be established. For example, the Acts Interpretation Act 1901 (Cth), s 22A defines a person as the de facto partner of another person (whether of the same sex or a different sex)

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if the person is either in a registered relationship (under Tasmanian, Victorian, or ACT law) with the other person,10_{or if the person is in a}

de facto relationship with the other person.11

1 . E X I S T E N C E O F A ‘ D E F A C T O R E L A T I O N S H I P ’

As indicated above, the confusing variance of terminology for recognised same-sex relationships belies the fact that the level of protection in practice is now largely equivalent across all Australian jurisdictions. The following section will show the degree of consistency in recognition of same-sex relationships but also explain where differences continue to exist. It will also explain to what extent state law protects relationships that fall outside these parameters.

A. Recognition as De Facto Relationship

The approaches adopted in the various Australian jurisdictions differ somewhat in terms of the requisite minimum age of the parties to the relationship, whether the parties must cohabit, and what other factors affect the determination of whether a legally recognised relationship exists.

Age. The minimum age requirement for persons to be recognised as de

facto partners varies between jurisdictions. Queensland, for instance, expressly requires that both parties to the relationship be at least 16 years old.12_{Western Australia, and similarly the Northern Territory,}

de-fine a de facto relationship as a relationship ‘between 2 persons who live together in a marriage-like relationship’.13_{While the lack of}

refer-ence to a minimum required age of the partners could mean that a de facto relationship can be found to exist between two partners under the age of 18, the requirement that the relationship be ‘marriage-like’ may well prevent recognition of underage partners.14_{In most of the}

remain-ing states and territories, the partners of the de facto relationship are required to be ‘adults’15_{or ‘adult persons’,}16_{thereby stipulating a}

minimum age of 18. Although the number of people affected by such a qualification may be relatively small, it is nevertheless difficult to see a reason for this variance (see generally, Jessup, 2000). The definition of a de facto relationship in s 22A of the Act Interpretation Act 1901 (Cth) and of domestic relationship, where both parties live together as a cou-ple on a genuine domestic basis, in s 35 of the Relationship Act 2008 (Vic) do not specify a minimum age nor that the parties be adults.

Relationship as a couple. The majority of jurisdictions require that the

partners be living together ‘as a couple’17_{or ‘as a couple on a genuine}

domestic basis’.18_{The Western Australian and the Northern Territory}

legislation require that the de facto partners live together ‘in a

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marriage-like relationship’.19_{Victoria also requires that those in a}

‘mestic relationship’ be ‘living together as a couple on a genuine do-mestic basis’20_{unless the partners are in a registered relationship or}

one or each of the partners ‘provides personal or financial commit-ment and support of a domestic nature for the material benefit of the other’.21_{While the term ‘living together as a couple [on a genuine}

do-mestic basis]’ is not further defined in legislation, it appears to be as-sumed that, typically, couples will cohabit. However, a couple can live together even if the parties do not share the same household. The ‘na-ture and extent of common residence’ is merely one factor in the determination of whether a de facto relationship exists.22_{On the whole,}

the case law appropriately adopts a flexible approach to the cohabit-ation criterion (Millbank, 2006c; Fehlberg and Behrens, 2008: 138).

Features of the relationship. The courts determine the question of whether

a de facto relationship exists by reference to all the circumstances of the relationship. In 1999, the Property (Relationships) Act 1984 (NSW) was amended to include a (non-exhaustive) list of criteria that previous case law had identified as significant. The circumstances include: a. the duration of the relationship,

b. the nature and extent of common residence, c. whether or not a sexual relationship exists,

d. the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

e. the ownership, use and acquisition of property, f. the degree of mutual commitment to a shared life, g. the care and support of children,

h. the performance of household duties,

i. the reputation and public aspects of the relationship.23

Identical24_{or largely equivalent lists}25_{are now in use in each Australian}

State and Territory as well as in the Commonwealth.26_{Under all legal}

regimes, the absence or presence of any one particular factor is not determinative of there being or not being a de facto relationship, and a court has the power to attach such weight to any matter as seems appropriate to it.27

B. Protection for Other Relationships

Some jurisdictions also offer protection to relationships that do not qualify as a de facto or couple relationship. However, these additional

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categories of relationship, with their less stringent criteria, generally receive relatively less recognition and rights than those categories of relationships where parties must be a cohabiting couple.

Apart from ‘de facto relationships’, NSW also recognises those who are involved in a ‘close personal relationship’.28_{(Both terms, ie}

‘de facto’ and ‘close personal relationships’ fall under a broader, umbrella category of ‘domestic relationship’.)29_{The Courts generally}

handle the de facto criteria with a fair amount of flexibility and sensitivity for the individual circumstances so that it would be rare for couples to have to resort to the ‘close personal relationship’ category of legally recognised relationships. Couples in this secondary relationship category must show that they ‘are living with each other’ and that ‘one or each. . . . provides the other with domestic support

and personal care’.30_{The interpretation of ‘personal care’ to date, in}

NSW, suggests that the term is confined to those circumstances where one partner helps another with ‘mobility, personal hygiene, and physical comfort’.31_{This may limit the utility of this category for}

many same-sex relationships, where both partners are able-bodied, but do not conform with requirements of a legally recognised de facto relationship.

There is also an additional category of recognised relationship in the ACT.32_{This broader category of ‘domestic relationship’ (rather}

than ‘domestic partnership’) means: a personal relationship between two adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other and includes a domestic partnership but does not include a legal marriage.33_{Unlike in NSW, it does not require living in the same}

household. Domestic relationships enjoy protection mainly in the context of criminal law, health-related legislation as well as business and consumer legislation.

Tasmania and Victoria also employ a further category of recognised relationships – that of ‘caring relationships’. In Tasmania, these are:

relationship[s] other than a marriage or significant relationship between two adult persons, whether or not related by family, one or each of whom provides

the other with domestic support and personal care.34

Where a caring relationship is registered, registration is proof of the relationship.35_{Otherwise, the Tasmanian legislation provides a}

modified list of criteria for establishing whether a ‘caring relationship’ exists, which includes many of the general factors described above but also has regard to ‘the level of personal care and domestic support provided by one or each of the partners to the other’.36_{However, in}

light of the broad definition of ‘significant relationship’, which does not require cohabitation, there is likely to be less need to look to this secondary category for legal recognition.37

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In South Australia, a ‘close personal relationship’ exists when two adults live together as a couple on a genuine domestic basis,38_without

satisfying the criteria for a domestic partnership that the partners have been together for at least 3 years, or during 4 years for periods totalling 3 years, or have had a child together. All jurisdictions exclude relationships where support and care is provided for fee or reward, or on behalf of another person or an organisation.39_{In Western Australia,}

the Northern Territory or Queensland, there are no additional categories of non-marital relationship conferring legal recognition, rights, or responsibilities upon the parties.

2 . C I V I L P A R T N E R S H I P L E G I S L A T I O N

The de facto legislation shows that Australian family law is characterised by a functional approach to relationship recognition. In a process that begun in the 1980s, married and non-married couples have been given largely equivalent rights. Protection was based on the existence of a relationship of interdependence, rather than the performance of a ceremonial act such as marriage. In their struggle for equal rights, same-sex couples benefited from the fact that the protection of relationships has been largely decoupled from the status of marriage. After the legal significance of marriage had diminished, it was doctrinally, if not politically, the most viable option to extend the protection enjoyed by opposite-sex de facto couples to all de facto couples, regardless of gender. During the early 2000s, this approach allowed Australians to see themselves internationally to be well-placed in the area of same-sex relationship recognition. Since then, many comparable Western countries have introduced new forms of relationship recognition such as registered partnerships, civil unions or even same-sex marriage. All these models have in common that they allow the parties to attribute a particular status to their partnership through a public, and officially sanctioned, declaration of mutual commitment.

Such efforts at status-based forms of relationship recognition have faced much more difficulty in Australia. The southern continent has no civil union legislation at federal level. The only Australian jurisdiction with civil partnership legislation is the ACT. However, the Civil Partnerships Act 2008 (ACT) does not seek to equate the effects of a civil partnership with a marriage.40_{Rather, s 5(3) of the Act provides}

that the parties to a civil partnership ‘are taken, for all purposes of territory law, to be in a domestic partnership’. The Civil Partnerships Act 2008 (ACT) was preceded by a Civil Unions Act 2006 (ACT). The Civil Unions Act 2006 made provisions for civil unions to be given the same legal recognition under ACT law as a marriage, but the Act was disallowed by the federal Government in exercise of its powers under

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the Australian Capital Territory (Self-Government) Act 1988 (Cth) s 35.41

The federal Government regarded the legislation as an indirect attempt to encroach on the federal Parliament’s power to legislate on marriage. It considered it beyond the powers of the ACT to widen the definition of marriage and was also concerned about the ceremonial aspects of the Civil Unions Act.42_{In 2009, the ACT Parliament amended its Civil}

Partnership Act 2008 introducing once again a legal ceremony. Under the new s 6A, the relationship cannot only be registered but the couple can also, ‘unless [it] may marry under the Marriage Act 1961 (Cwlth)’, enter into a civil partnership by making a ‘declaration’ to this effect before a ‘civil partnership notary’. In an Australian first, this Act gives same-sex couples in the ACT now the option to declare their civil partnership in a legally binding ceremony. The current version of the legislation is the result of a compromise between the federal and the ACT governments.43_{The ACT agreed to amend the manner in which}

civil partnership ceremonies may be entered into and thereby avoided disallowance of the partnership legislation on the basis that such ceremonies mimic, and thereby undermine, the institution of marriage and bypass the federal marriage power.

Three other Australian states have established relationship registers. The Tasmanian Relationship Act 2003 provides that registration of a ‘Deed of Relationship’ is, for the purposes of Tasmanian law, sufficient evidence of a ‘personal relationship’.44_{Equally, under the Relationships}

Act 2008 (Vic) and the Relationships Register Act 2010 (NSW), registration provides conclusive proof of a domestic relationship where such relationships are recognised under Victorian law or the law of NSW, respectively. Registration allows couples access to existing entitlements for domestic relationships without having to prove for each individual instance the existence of their partnership.45_These

registration models aim at practical support of de facto partnerships but they do no make provision for an official ceremony at which the relationship is formally recognised. A further difference to many civil union models is that the Relationships Act 2003 (Tas), the Relationships Act 2008 (Vic) and the Relationships Register Act 2010 (NSW) are addressed at both heterosexual and same-sex couples. Likewise, the Civil Partnerships Act 2008 (ACT) allows partners of the same sex as well as opposite-sex partners to register their relationship. However, the civil partnership declarations under the amended ACT law are reserved for same-sex couples.

3 . E Q U A L I T Y F O R S A M E - S E X C O U P L E S I N F E D E R A L L E G I S L A T I O N

The former federal Government, which was formed by a Liberal/ National coalition and in office until 2007, denied same-sex couples

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equal treatment in many areas of federal law. The Human Rights and Equal Opportunities Commission (now: Australian Human Rights Commission) conducted a comprehensive inquiry to identify those federal laws in which same-sex couples and their children suffered discrimination and to devise appropriate mechanisms for reform. The new Labor government enacted the recommendations made in the Commission’s report, Same-Sex: Same Entitlements. (Human Rights and Equal Opportunities Commission (2007). The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 (Cth) and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 (Cth) removed discrimination against same-sex couples and their children from a wide range of Commonwealth laws and programs. As a result, federal law caught up with the position that had been achieved at state level for some time. This was generally achieved by expanding the definitions of ‘de facto’, ‘parent’, ‘child’, and ‘relationship’ so that same-sex couples and their families have equal recognition to, and the same entitlements as, opposite-sex de facto couples.

Altogether, more than 80 Commonwealth laws were amended, including in the areas of:

• social security, family assistance, aged care; • taxation;

• superannuation; • citizenship; • veterans’ affairs;

• workers’ compensation; and • immigration.

In the area of social security and family assistance, the reforms ensure that same-sex couples are recognised as such and, consequently, receive the same rate of social security, family assistance payments, and health payment benefits as opposite-sex couples in identical circumstances. Likewise, children of same-sex couples are now recognised for these purposes. In relation to aged care income and assets tests, same-sex couples are now treated in the same way as opposite-sex couples so that a member of a same-sex couple will be taken to have 50 per cent of the total value of the couple’s income and assets. Under the old law, a person who had a same-sex partner was treated as a single person under the aged care, and their partner’s income and assets were disregarded. These reforms have, in some cases, the effect that same-sex couples will now receive fewer benefits than previously. However, this is the result of treating same-sex couples generally in the same way as opposite-sex

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couples. In the tax area, the reforms ensure that same-sex couples are able to access the same tax concessions available to married and opposite-sex de facto couples. Following the reforms, private sector superannuation trustees are allowed to make same-sex couples and their children eligible for reversionary benefits. Death benefits under Commonwealth (defined benefit) schemes can now be conferred on same-sex partners and the children of same-sex relationships.

The reforms also ended the discrimination against same-sex couples under the Australian Citizenship Act 2007. Same-sex couples now have the same entitlements as opposite-sex couples. In particular, this allows the same-sex partner of an Australian citizen to count a period of time spent outside Australia as a period of time spent in Australia for the purposes of meeting the requirements for citizenship by conferral. There is now also provision for the recognition of children of same-sex and opposite-sex de facto couples where artificial conception procedures have been used, or where approved surrogacy arrangements have been entered into. As a result to amendments to the migration laws, same-sex couples and their children will be ‘members of the family unit’ for visa purposes, in the same way that spouses and opposite-sex de facto partners and their children are currently included as members of the family unit. Same-sex partners of Australian citizens, Australian permanent residents, and eligible New Zealand citizens will be able to apply for the same partner visa as opposite-sex partners. Children of opposite-sex and same-sex couples will be included as members of the family unit of the primary visa applicant. Other changes aimed to remove discrimination in the areas of family law and child support, Medicare, veterans’ affairs, workers’ compensation, and educational assistance.

4 . E Q U A L I T Y F O R S A M E - S E X C O U P L E S I N S T A T E A N D T E R R I T O R Y L E G I S L A T I O N

The states have power to legislate on all matters not falling within the ambit of Commonwealth heads of power. On that basis, property law and succession law as well as those aspects of family law that do not relate to marriage, lie within the legislative responsibility of the state. For instance, de facto relationships do not fall within the Commonwealth’s marriage, or its divorce and matrimonial causes power. The rights and responsibilities of parties to such a relationship (and their children) are governed by the laws of the States and Territories, which may vary from one jurisdiction to another. As explained above, states have now largely completed the move towards providing equal treatment to de facto relationships, regardless of the partners’ gender. This legislation has reached a degree of relative consistency, notwithstanding many differences in detail. The areas in which same-sex couples now enjoy equivalent protection include:

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• property division and maintenance where a couple splits up; • succession rights;

• recognition as ‘next of kin’;

• accident and workers’ compensation; • partner’s state superannuation; and

• protection from discrimination on the basis of marital status.

Some differences remain in areas such as the relationship of a person to the children of their partner, adoption laws, as well as the regulation of access to artificial reproduction procedures. These differences can largely be explained by the degree of willingness and rigour with which state legislature proceeded to end discrimination of same-sex partnerships.

A. Property Division and Maintenance

While this area was traditionally a state matter, Australia has now moved towards a (largely) national approach towards resolving financial disputes between de facto partners.46_{The federal legislation is based}

on a referral of powers by the majority of states to the Commonwealth in relation to ‘financial matters arising on the breakdown of de facto relationships’. While all states (other than South Australia and Western Australia) had referred their powers in respect of both same-sex and opposite-sex couples, the former Commonwealth Government was unwilling to accept the referral in relation to same-sex couples. When the Labor came into office, it accepted the referral also in relation to same-sex couples. As a result of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), unmarried couples regardless of gender now have the benefit of accessing the Family Court with its specialist experience and its more cost-effective procedures in the area of relationship breakdown.

Eligibility. Where a couple is covered under the amended Family Law

Act 1975 (Cth), the Court can order under the newly inserted Part VII-IAB the division of any property that the couple own, either jointly or individually. These provisions largely mirror the financial provisions in Part VIII (relating to property and maintenance obligations of married spouses) and extend the application of Part VIIIA (third party provi-sions) to de facto couples. Similarly, the Court has the power under Part VIIIB to split of superannuation entitlements of either partner. The new provisions apply in all states and territories, except South Aus-tralia and Western AusAus-tralia.47_{Where the new de facto provisions differ}

from the respective matrimonial property law, these differences are

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generally owed to issues of Commonwealth legislative power and the need to stay within the limits of the state reference (Galloway, 2008).

The new s 4AA(1) of the Family Law Act 1975 (Cth) provides that a person is in a de facto relationship with another person, for the purposes of that Act, if (i) the persons are not legally married to each other; and (ii) the persons are not related by family; and (iii) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. Subsection 5 clarifies that (i) a de facto relationship can exist between two persons of different sexes and between two persons of the same sex; and (ii) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

As is largely the case under the pre-existing state schemes, the circumstances to which a court may have regard in determining whether the parties are a couple, include:

(a) the duration of the relationship;

(b) the nature and extent of their common residence; (c) whether a sexual relationship exists;

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e) the ownership, use and acquisition of their property; (f) the degree of mutual commitment to a shared life;

(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children;

(i) the reputation and public aspects of the relationship.48

In relation to property adjustment and maintenance between parties to the relationship, additional threshold requirements apply. Under s 90SB of the Family Law Act 1975 (Cth), the court can make an order only if the unmarried couple have been engaged in the de facto relationship for at least 2 years, or where there is a child of the relationship, or where the relationship is registered under state or territory law,49_{or where a partner made substantial contributions and}

the order is necessary to prevent serious injustice.

This mirrors the position under state law, where unmarried couples likewise do not gain access to property division and maintenance regimes unless they have been involved in a recognised relationship for at least 2 years.50_{The South Australian legislation requires that couples}

have been in a ‘close personal relationship’ continuously for a minimum

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period of 3 years, or for 3 of the preceding 4 years.51_{Similarly, courts}

can generally waive the minimum period to prevent serious injustice where there is a child to the relationship, where a partner made substantial contributions, or a partner had care and control of the child of the other partner.52_{A further exception to the requirement for}

a minimum duration exists in those jurisdictions that allow for partnership registration. For example, under the Tasmanian registration scheme, partners to a registered relationship may apply for property adjustment or maintenance without the need to prove that the relationship has existed for 2 years.53

‘Opting-out’ through financial agreements. Partners in a recognised

rela-tionship attract legal rights and responsibilities in relation to property, upon their relationship reaching the minimum required duration in their jurisdiction or satisfying the other criteria considered above. Part-ners who do not wish to attract such obligations are able to enter into a ‘binding financial agreement’, before, during, or after separation. However, the requirements for these arrangements vary greatly from state to state. Queensland and the Northern Territory merely require that the couple make the agreement in writing and that each partner sign this agreement.54_{In the Northern Territory, it has been held that}

even a series of emails between the two partners can be sufficient to constitute a binding ‘financial agreement’.55_{Under the new}

Common-wealth legislation as well as under the law in WA, the ACT, NSW and Tasmania, however, independent legal advice is also required, and a solicitor must certify to this effect on the agreement.56_{In all}

jurisdic-tions, financial agreements are subject to the law of contract.57_Where

partner’s needs and wishes are expressed vaguely or aspirationally, the agreement may not be legally binding.58_{Furthermore, parties must}

carefully consider the eventualities that could arise and incorporate such considerations into the agreement. The Court retains the power to set aside or vary agreements in certain cases, including fraud, uncon-scionability, and material change of circumstances.59

Taking ‘future needs’ into account in adjusting property. Under some

prop-erty regimes, unmarried couples seeking propprop-erty division can only have past financial as well as non-financial contributions to property or the relationship taken into account when determining how property will be divided.60_{This contrasts with the new Commonwealth scheme}

under the Family Law Act 1975 (Cth), which allows for future needs and financial capacity, as well as past contributions, to be taken into consideration.61_{This means that the Court may take account of age}

and health of the parties, their income, financial resources, and oppor-tunity to gain appropriate gainful employment, whether a party has to

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look after a child, or is responsible for any other person, and the extent to which the relationship has affected the earning capacity of the party in question. In the jurisdictions not covered by the referral of powers to the Commonwealth, the court may likewise have regard to other rele-vant matters, beyond the respective contributions of the parties.62 B. Succession

Succession and intestacy laws are state matters. The recognition of same-sex relationships extends in all jurisdictions also to the rights of same-sex partners after the death of one of the partners. Where a person dies intestate, the deceased person’s same-sex partner now has primary inheritance rights and participates as such in the distribution of the estate. Likewise, de facto partners are now also included as eligible applicants in the family provision legislation, which allows for claims where a testator made inadequate provision for proper maintenance, education, and advancement in life.63

Eligibility. Generally, most States require that couples who are not

mar-ried be together in a de facto relationship for at least 2 years before they will be recognised as the deceased intestate’s partner.64_{In South}

Australia, couples must have been involved in such a relationship for at least 3 years.65_{The surviving partner must satisfy the Court that the}

relevant indicia of a de facto relationship were present for at least this minimum 2- or 3-year period, respectively.66_{In that regard, gay and}

les-bian couples receive equal treatment to unmarried heterosexual cou-ples but face more hurdles than the partners of a marriage. This has led a commentator (Hamilton, 2003) to conclude that even after ‘equality’ reforms:

[i]t still cannot be said that a de facto partner (who satisfies the I[nterpretation] A[ct] test) stands on an equal footing with a marital partner. After all, the de facto partner still has to prove the incidents of a genuine domestic relationship, whereas a marital partner need only wave a marriage certificate, regardless of how many incidents of a genuine domestic relationship (as set out in s32DA(2) of the A[cts] I[nterpretation] A[ct]. . .) are missing.

The minimum time period does not apply where the partner is the parent of a child of the deceased.67_{In jurisdictions that allow for}

partnership registration, the requirement that the relationship be of a certain minimum duration, does not apply to registered partners.68 Revocation of will upon marriage or divorce. In all States, a will is revoked

upon marriage, unless that will was made in contemplation of the mar-riage.69_{Only Tasmania and the ACT have equivalent provisions for}

those who enter into a significant relationship or civil partnership.70

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Likewise, in most State jurisdictions, where a married couple divorce, provisions within a will conferring gifts, appointments, or the power of appointment to an ex-spouse will be revoked unless that will was made either after the divorce, or in contemplation of the divorce (depending on the particular jurisdiction).71_{Again, in all states and territories}

ex-cept for Tasmania and the ACT,72_{there are no equivalent ‘safety nets’}

available for those who leave a non-marital relationship and who have not changed their will accordingly.

Division of intestate estate between current de facto partners and previous husband or wife. Conflicts can arise where a person dies intestate but is

survived by a husband or wife as well as a de facto partner. In those cases, the surviving partner of a de facto relationship will often share the estate with the surviving spouse even where the de facto relation-ship exceeded the stipulated length of 2-year duration (or 3 years in South Australia), which entitle a de facto partner to a share in the es-tate. De facto couples are required to have lived together for an even longer period before they displace a spouse’s right to a share in their deceased partner’s estate.

How long this greater period is varies from state to state.73_{In Western}

Australia, eg the Administration Act 1903 (WA) provides that the surviving partner of a de facto relationship of less than 2 years will not have any primary inheritance rights.74_{Where the couple have been}

together between 2 and less than 5 years, the surviving de facto partner will receive half of the partner’s share, with the other half going to a surviving spouse.75_{Only after a de facto couple have been in a}

continuous de facto relationship with each other for at least 5 years will a surviving partner have the same rights as a surviving spouse and no longer needs to share their partner’s estate with any surviving spouse.76

This means that partners of a same-sex relationship, in which one or both partners have previously been married, need to take care to terminate the marriage if they want to avoid the risk that their surviving de facto partner must share the estate with a spouse.

C. Relationship with Children of Same-Sex Partner

The legal relationships of children with same-sex partners of their parents can raise complex issues that are outside the scope of this article. Adoption aside, Australian law generally attributes parenthood to a child’s biological parents even though some presumptions of parenthood exist in the context of marriage. Parenthood of children conceived with assisted reproductive technology is subject to specific provisions. Statute law in some jurisdictions now also contains provisions on parenthood where same-sex partners use assisted conception procedures to create, or extend, a family.77_{In NSW,}78_Victoria,79_Western

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Australia,80_{the ACT,}81_{the Northern Territory,}82_{as well as under federal}

law,83_{the same-sex partner of a woman who has undergone a fertilisation}

procedure with the consent of her domestic partner is legally recognised as the parent of her partner’s child. Lesbian couples in other jurisdictions as well as gay men or gay couples, who proceed to have children through surrogacy, continue to face much legal uncertainty and severe hurdles in relation to being recognised as the legal parents of their children.84 D. Adoption

Only same-sex couples in NSW,85_{the ACT,}86_{and Western Australia}87

have access to adoption on an equal footing to heterosexual couples. In Tasmania, same-sex couples in a ‘significant relationship’ are permitted to adopt a child provided it is related to a member of the couple (step-parent adoption).88_{In all other states and territories,}

there is no provision for same-sex couples to adopt. In Victoria, the Law Reform Commission recommended legislative reforms to enable same-sex couples to apply to be assessed for adoption as a couple and to provide same-sex step-parents with equal access to existing step-parent adoption provisions (Victorian Law Reform Commission, 2007, recommendations 67 and 68). However, a recent change of government has made the implementation of this proposal unlikely for now. The Adoption Act 2009 (Qld), on the other hand, entrenched discrimination against same-sex couples when it extended eligibility for adoption from married spouses to de facto couples but retained the restriction that the partners be of opposite sex. In most Australian jurisdictions, adoption rights therefore continue to be an area where same-sex couples are treated differently to opposite-sex couples. In light of the small number of adoptions currently occurring in Australia, this may be regarded as an issue of lesser practical significance. However, the withholding of equal rights can no longer be based on concerns for the best interests of children, as sociological research establishes with increasing reliability that there are no differences in psychological well-being and emotional development between children growing up in same-sex or opposite-sex families (Castan Centre for Human Rights Law, 2009: 13f; Meezan and Rauch, 2005). A recent meta-study could find no empirical support for the notion that a child needs both a father and a mother. Instead, the available evidence suggests that two compatible parents provide advantages for children over single parents, irrespective of ‘parental gender, marital status, sexual identity, or biogenetic status’ (Biblarz and Stacey, 2010: 17).

5 . C O N C L U S I O N

Australian law achieves substantial equality between same-sex and opposite-sex couples through de facto legislation.89_{Over the last}

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decade, each State and Territory undertook similar reforms which had the effect of extending the legal recognition and entitlements available to opposite-sex couples also to same-sex couples. Some differences remain, in particular in the area of adoption rights and parenthood through assisted reproductive technology. With some delay, the Commonwealth removed in 2008 discrimination against same-sex couples and their children from a wide range of federal laws and programs. Some states and territories have recently established relationship registers. Unlike civil union models in other countries, registered partnerships are neither explicitly nor implicitly equivalent to marriage. Registration allows couples access to existing entitlements for domestic relationships without having to prove for each individual instance the existence of their partnership. However, Australian law continues to withhold from same-sex couples the opportunity to express their commitment to one another through a legally binding ceremony. This is the reason why same-sex marriage is now on Australia’s political agenda.

S A M E - S E X M A R R I A G E : T H E L A S T F R O N T I E R ?

The fact that all couples now receive largely equal treatment in Australian law has also shaped the same-sex marriage debate in this country. Same-sex marriage is generally no longer needed as a vehicle for achieving equal entitlements and protection before the law. Withholding the institution of marriage from couples of the same gender means, however, that gay men and lesbians lack the possibility of giving status to their relationship through an official act celebrating and confirming the existence of that relationship. Advocates regard same-sex marriage as an issue of symbolism as well as human rights (for a review of the arguments, see Australian Senate, Legal and Constitutional Affairs Legislation Committee, 2009; Cooper, 2005). They regard the registration schemes currently operating in some Australian jurisdictions, while practically important, not as a sufficient equivalent to marriage for same-sex couples.

1 . S A M E - S E X M A R R I A G E : P O T E N T I A L P A T H W A Y S

The Marriage Act 1961 (Cth) s 5(1) defines marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered for life’.90_{This statutory definition is of comparatively recent origin. It}

was inserted through the Marriage Amendment Act 2004 (Cth). Before then, the long-standing definition of marriage in Hyde v Hyde &

Woodmansee91_{had been consistently applied in the courts. In 2004,}

however, the then Liberal/National Government became concerned

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that Australian courts might follow Canadian decisions, which had struck down the limitation of marriage to opposite-sex couples.92_The

amendment gave the common law definition statutory force and thus put it beyond the reach of reform-minded courts.

The Government also wanted to erect a bar against partners of same-sex marriages celebrated overseas applying to domestic courts for declarations of validity so as to give effect to their union in Australia (on the Australian law prior to the amendment, see Nygh (2002). The same reform Act therefore also introduced a new s88EA into the Marriage Act 1961 (Cth), which prohibits the recognition of same-sex unions solemnized in a foreign country. The former Chief Justice of the Family Court of Australia described the amendments, which explicitly banned same-sex marriage in Australia through an overt act of discrimination, as ‘one of the most unfortunate pieces of legislation that has ever been passed by the Australian Parliament’ (Nicholson, 2005: 557). The amendments had bi-partisan support.

After Labor took office in 2007, it has continued to set its face against same-sex marriage or civil unions. While the Government is committed to eliminating discrimination against same-sex couples by legally recognising their relationships, it has expressed the view that the ‘most appropriate way to achieve this is by the development of nationally consistent, state-based relationship recognition that will include the opportunity for committed couples to have their relationships registered’ (Australian Government 2009: 144). This policy stance largely abdicates federal responsibility for further equality measures. As the federal Government lacks the legislative power to require states and territories to enact registration schemes such as those in NSW, Tasmania, Victoria, or the ACT, a nation-wide register would depend on the political will of each state and territory to participate in such a scheme. In more recent times, the political pressure on the federal government to do more than call for state-based registration schemes in all jurisdictions has increased. The current political debate and demands of community activists focus on the opening up of marriage to same-sex relationships.93

Unlike most other Western democracies, Australia does not have a Bill of Rights.94_{There is therefore no constitutional law either}

conflicting with, or supporting, same-sex unions. While this avoids the difficulty created by constitutions that provide special protection for marriage,95_{it also means that there is no prospect of achieving marriage}

equality through a judicial challenge of the discriminatory status quo.96

In the absence of a domestic Bill of Rights, the human rights of Australians are specifically enshrined only in international human rights law instruments. The prospect of successfully challenging the existing marriage laws in this way, however, will for the foreseeable future remain uncertain. As a signatory to the International Covenant

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on Civil and Political Rights (ICCPR) as well as the Optional Protocol to the ICCPR, Australia is under an international law obligation to respect the rights recognized under the Covenant (Art 2(1) ICCPR), including the right to recognition as a person (Art 16), the right to privacy and family (Art 17), to equality before the law (Art 26) and, most particularly, the ‘right of men and women of marriageable age to marry and found a family’ (Art 23). The Optional Protocol provides for complaints before the UN Human Rights Committee where a breach of those protections is alleged. In 2002, individuals from New Zealand complained that the Marriage Act 1955 (NZ), by not allowing same-sex couples to marry, discriminated against them in breach of their rights under the Convenant.97_{Not accepting this submission, the UN Human}

Rights Committee held that the ‘mere refusal to provide for marriage between homosexual couples’ did not constitute a violation of Articles 16, 17, 23 or 26 of the Covenant. In light of the increasing acceptance of same-sex marriage in a number of countries and US states,98_{it has}

been questioned whether this position will over time become more difficult to defend (Castan Centre for Human Rights (2009: 8). A realistic assessment suggests, however, that a judicial challenge has currently little prospect of success. It would require a widespread change in community attitudes and international practice before it could be concluded that withholding the right to marriage from same-sex couples would be an evident breach of human rights and an unjustifiable discrimination. In Australia, the issue of same-sex marriage is therefore an item for the political process, rather than a judicial determination. Law reform must come from Parliament and have the support of political parties and the electorate.

2 . L E G I S L A T I V E P O W E R F O R S A M E - S E X M A R R I A G E

Australia’s constitutional framework as a federal state adds much complexity to the question of legislative responsibility for laws concerning same-sex couples. The Australian Constitution of 1901 specifies the areas in which the Commonwealth can exercise power to legislate. In all other areas, the legislative competence lies with the states. Relevantly, the Constitution provides that the Commonwealth has power to legislate with respect to marriage;99_{divorce and}

matrimonial causes,100_{and matters incidental to the execution of any}

power that is vested in it.101_{The Commonwealth Parliament also has}

express power to legislate with respect to areas such as immigration and emigration,102_taxation,103_{and invalid and old-age pensions.}104_By

defining in these areas who will receive entitlements in certain circumstances, eg as a ‘de facto couple’, the Parliament can limit or extend legal recognition of same-sex couples. This means that the federal Parliament has the legislative power to enact laws specifically

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concerned with marriage, divorce, matrimonial causes, as well as define the rights and obligations of same-sex couples in relation to other areas over which it has legislative power.

These constitutional heads of Commonwealth power have been construed relatively widely. The High Court has held that the marriage power supports legislation creating, defining, or regulating rights or duties that arise out of or have a close connection with the marriage relationship. This ‘close connection’ has been held to extend to laws regarding the status of marriage, and rights and duties between spouses.105_{This includes ‘parental rights, and the custody and}

guardianship of infants’,106_{where children are children of the marriage,}

as opposed to children in the care of the parties to the marriage.107

Similarly, the power in relation to divorce and matrimonial causes power108_{has a fairly wide ambit, extending to dissolution of marriage}

by divorce, other matrimonial causes such as nullity, separation, and annulments.109

Under s51 (xxxvii) of the Constitution, Australian states may refer their legislative power over a particular area to the Commonwealth. This has previously occurred, when, between 1986 and 1990, all states other than Western Australia referred power to the Commonwealth regarding children who were not children of a marriage.110_{From then on,}

the Family Court of Australia – a Court exercising federal jurisdiction – could deal with both those children who born of a marriage and those who were not.111_{More recently, most states (other than South Australia}

and Western Australia) have enacted legislation referring the power regarding property disputes between unmarried couples, both same sex and different sex.112_{As a result, the Commonwealth amended the}

Family Law Act 1975 in 2008 to expand the jurisdiction of the Family Court to property disputes and maintenance obligations of same-sex and opposite-sex de facto couples.113

The question of where the power to legislate on same-sex marriage lies is very contentious in Australia (eg Joseph and Castan, 2010;

Meagher, 2003; Walker, 2007 [7.40]). The High Court has not explicitly considered the issue. At the heart of it lies how the term ‘marriage’ in the constitution is to be interpreted, in particular whether it includes unions of partners of the same sex. Australian constitutional lawyers debate vigorously whether terms used in the Constitution should be interpreted as having the meaning they had at the time of federation (1901) or whether they should be interpreted progressively, to allow for change in circumstances and meaning over time (eg Lindell, 2008: 38). Obiter, former High Court judge McHugh J acknowledged that, at the enactment of the Constitution in 1901, ‘marriage’ was understood as meaning ‘a voluntary union for life between one man and one woman to the exclusion of all others’.114_{However, his Honour}

speculated that the federal Parliament may today enjoy ‘the power to

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legislate for same sex marriages’ [because] ‘arguably “marriage” now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others’.115_{In a different context,}

the Full Court of the Federal Court stated that the Commonwealth marriage power extends to the regulation of marriages ‘that are outside the monogamistic Christian tradition’.116

Regardless of its precise ambit, the marriage power in the federal Constitution is generally held not to be exclusive but concurrent (Lindell, 2006: 27). This means that the states can legislate with respect to marriage but that such legislation would be inoperative under s 109 of the Constitution to the extent of any inconsistency with laws validly enacted by the Commonwealth. In 2004, the Commonwealth amended the Marriage Act 1961 (Cth) to define marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered for life’.117_{It is an open question whether any state legislation on same-sex}

marriage would be inconsistent with the current Marriage Act 1961 (Cth). It has been suggested that the 2004 amendment could be interpreted to mean that the Commonwealth did not wish to legislate on same-sex marriage because the Marriage Act is now expressly limited to deal with different-sex marriage only (Williams, 2006). A conflicting view is that the amended Marriage Act 1961 (Cth) has ‘attempted to exhaustively define which relationships may be described as ‘marriages’ so as to confine the use of that description to [opposite-sex] marriage’ (Lindell, 2006: 28; see also Meagher, 2010). If this latter view were to prevail, it would mean that the Commonwealth has covered the field and that the states could no longer validly legislate on same-sex marriage. There would be an indirect inconsistency between Commonwealth legislation and any attempt by state legislatures to provide for same-sex marriage. On that view, any enactment to introduce same-sex marriage would need to originate from the Commonwealth, in effect requiring a reversal of the 2004 amendment and allowing partners of the same sex as well as of opposite sex to enter into a marriage. Clarity about this issue can only be expected to come from a High Court decision assessing the constitutional validity of a state law purporting to introduce same-sex marriage.

3 . L E G I S L A T I V E I N I T I A T I V E S

As a result of the uncertainties about the legislative competency of state and federal parliaments, same-sex marriage bills have originated at both levels, though none of them to date with government support. In 2009, the Greens Senator Sarah Hanson-Young introduced the Marriage (Equality) Amendment Bill into the Australian Senate. This federal Bill would have allowed same-sex marriage and, more generally, sought to remove all discrimination from the Marriage Act 1961 (Cth)

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on the basis of sexuality and gender identity and to permit marriage regardless of sex, sexuality, and gender identity. By a majority of 45:5, the Australian Senate followed the recommendation of its Legal and Constitutional Affairs Legislation Committee, to reject the Bill. In its report, the Committee merely supported developing a nationally consistent framework for relationship recognition (Australian Senate, Legal and Constitutional Affairs Legislation Committee, 2009).118_Even

though the Senate vote followed party lines, with only Greens members voting in favour of the Bill, 26 senators of the major parties abstained from a vote, possibly indicating disagreement with their parties’ official stance on same-sex marriage.

At the same time, community acceptance of same-sex relationships, including same-sex marriage, continues to increase. A recent opinion poll reportedly found that 60% of Australians support same-sex marriage.119_{It therefore appears that the electorate is more alive to the}

discriminatory nature of the current laws than the Government. Such poll results also show that large sectors of the community do not share the concern of both major parties that same-sex marriage would diminish or damage the institution of marriage. In the 2010 federal election, the Labor government lost its majority in the House of Representatives and now depends on the support of independents and a Greens MP. In September 2010, Senator Hanson-Young re-introduced her Marriage (Equality) Amendment Bill into the Senate. In November 2010, the lower house backed a motion that asks MPs to seek the views of their constituents on same-sex marriage. Proponents of gay marriage hope that a broad public debate will soften the stance of the political parties and pave the way for a conscience vote on the Senate same-sex marriage bill at some later date.120

C O N C L U S I O N

Australian law has achieved substantial legal equality between all couples, married or unmarried, opposite sex and same sex. This includes recognition as ‘next of kin’, rights, and responsibilities in the areas of property division and maintenance in cases of separation, succession law, superannuation, accident and workers’ compensation, taxation, citizenship and immigration, as well as entitlements to social security, family assistance, aged care and protection from discrimination on the basis of marital status. Some differences remain in most jurisdictions, in particular in the area of adoption rights and parenthood through assisted reproductive technology.

This recognition is generally based on the mere existence of a de facto relationship between the partners. Whether such a relationship exists in the eyes of the law is determined by reference to a well-established