(Sept. 26, 2012) On September 20, 2012, the Australian Senate (the upper house of the federal parliament) voted 41-26 against the Marriage Amendment Bill (No. 2) 2012. (Marriage Amendment Bill (No. 2) 2012; Marriage Amendment Bill (No. 2) 2012, Parliament of Australia website (last visited Sept. 24, 2012).) This action followed a vote taken on the previous day, September 19, 2012, by the House of Representatives on a separate bill, the Marriage Amendment Bill 2012. That bill was defeated 98-42. (Marriage Amendment Bill 2012; Marriage Amendment Bill 2012, Parliament of Australia website & Inquiry into the Marriage EqualityAmendment Bill 2012 and the Marriage Amendment Bill 2012, House Standing Committee on Social Policy and Legal Affairs website (both last visited Sept. 24, 2012).) Both bills were private members’ bills (i.e. they were not government-sponsored) that sought to amend the Marriage Act 1961(Cth), in order to provide for same-sex marriage.
In the two houses of Parliament, representatives from the ruling Labor Party were given a “conscience vote” on the bills, meaning that there was no party policy and individuals could vote as they wished, while members from the group of parties that make up the center-right Coalition were expected to follow the party position, which does not support same-sex marriage. (Simon Cullen, Lower House Votes Down Same-Sex Marriage Bill, ABC NEWS (Sept. 19, 2012).) <?Australia’s Prime Minister, Julia Gillard, as well as the former Prime Minister, Kevin Rudd, and other senior Labor Party members voted against the legislation. (Senate Rejects Gay Marriage Bill, THE AUSTRALIAN (Sept. 20, 2012).)
The defeat of the legislation could lead to renewed debate on whether civil partnerships legislation should be put back on Parliament’s agenda. (Samantha Hawley, Opposition Puts Civil Union Back on Agenda, ABC NEWS (Sept. 20, 2012).) While there is some indication that such legislation would have a better chance of being enacted than the same-sex marriage amendments, it may give rise to constitutional questions – the Leader of the Opposition, Tony Abbott, has noted that the Australian Constitution grants the federal Parliament powers to make laws with respect to “marriage” only, which could be interpreted to mean that civil union legislation “ought to be the prerogative of the state parliaments.” (Simon Cullen, Australian Senate Votes Down Same-Sex Marriage Bill, ABC NEWS (Sept. 21, 2012); Australian Constitution s 51(xxi).)
Consideration of Same-Sex Marriage Legislation by State/Territory Parliaments
Campaigners for same-sex marriage will now shift their focus to state and territory parliaments, where efforts to enact marriage equality legislation are underway. According to news reports, four of the eight Australian states and mainland territories are currently considering legislation that would provide for same-sex marriage. (Gay Marriage Bill Defeated, THE AGE (Sept. 19, 2012).) Australian states are not prevented from passing legislation relating to marriage under the federal-state constitutional arrangements, which provide for concurrent powers of federal and state parliaments, but a same-sex marriage in one state would not be recognized outside that state in the absence of national legislation, and the legislation may in fact be rendered inoperable if it is inconsistent with federal laws. (MARY ANNE NIELSON, BACKGROUND NOTE: SAME-SEX MARRIAGE 11, Australian Parliamentary Library website (Feb. 10, 2012).)
Current Status of Legal Recognition of Same-Sex Relationships
The legal recognition of same-sex relationships has received considerable attention in recent years. In 2008 and 2009, various Australian federal laws were amended to provide for equal entitlements and responsibilities for same-sex couples in de facto relationships. (Same-Sex Relationships (Equal Treatment in Commonwealth Laws–General Law Reform) Act 2008 (Cth); Same-Sex Relationships (Equal Treatmentin Commonwealth Laws—General Law Reform) Bill 2008, Parliament of Australia website.)
Most Australian states and territories also provide for equal rights for all de facto couples that meet particular criteria, and some provide for civil unions or domestic partner registries that include same-sex relationships. (Civil Unions Act 2012 (ACT), ACT [Australian Capital Territory] Government website; Relationships Act 2011 (Qld.), Queensland Government website; see also 18.104.22.168 Registered Relationships, in GUIDE TO SOCIAL SECURITY LAW,Department of Families, Housing, Community Services and Indigenous Affairs website (last reviewed Apr. 30, 2012).) However, while there are “fewer and fewer rights and obligations attached to married couples which do not attach to de facto couples – a status currently encompassing same-sex couples in most legal contexts – supporters of gay rights argue this is not enough” and that same-sex partners should be able to marry. (Nielson, supra, at 1.)