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Same-sex marriage in the Australian Capital Territory

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Part of the LGBTQ rights series
Marriage

Recognized

Civil unions or registered partnerships but not marriage
Minimal recognition
See also
Notes
  1. ^ a b Performed in the Netherlands proper (including the Caribbean Netherlands), as well as in Aruba and Curaçao. May be registered in Sint Maarten in such cases, but the rights of marriage are not guaranteed.
  2. ^ Neither performed nor recognized in Niue, Tokelau, or the Cook Islands.
  3. ^ Neither performed nor recognized in six British Overseas Territories.
  4. ^ a b Neither performed nor recognized in some tribal nations. Recognized but not performed in several other tribal nations and American Samoa.
  5. ^ Registered foreign marriages confer all marriage rights. Domestic common-law marriages confer most rights of marriage. Domestic civil marriage recognized by some cities.
  6. ^ a b c d e The Coman v. Romania ruling of the European Court of Justice obliges the state to provide residency rights for the foreign spouses of EU citizens. Some member states, including Romania, do not follow the ruling.
  7. ^ A "declaration of family relationship" is available in several of Cambodia's communes which may be useful in matters such as housing, but is not legally binding.
  8. ^ Guardianship agreements, conferring some limited legal benefits, including decisions about medical and personal care.
  9. ^ Inheritance, guardianship rights, and residency rights for foreign spouses of legal residents.
  10. ^ Courts have recognised guru–shishya, nata pratha or maitri karar–type contractual relationships, but they are not legally binding.
  11. ^ Some cities and prefectures issue partnership certificates, but they are not legally binding.
  12. ^ Marriages conducted abroad between a Namibian national and a foreign spouse recognized for residency rights.
  13. ^ Hospital visitation rights through a "legal representative" status.
  1. ^ a b Not yet in effect.
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Same-sex marriage is legal in the Australian Capital Territory, and in the rest of Australia, after the Federal Parliament legalised same-sex marriage in December 2017.[1]

The Australian Capital Territory is unique in being the only state or territory jurisdiction in Australia to have independently legalised same-sex marriage. The High Court of Australia nullified a same-sex marriage law that had been passed by the Australian Capital Territory (ACT) legislature on 19 September 2013. The Abbott government challenged the law shortly after passage and the High Court voided the legislation on 12 December 2013. The 31 same-sex marriages that had been performed under the ACT legislation were consequently void.[2]

The ACT was the first jurisdiction in Australia to legally recognise same-sex couples in 1994. It was the second to allow joint adoption petitions by same-sex couples in 2003, following Western Australia. It also is the first (and currently, only) jurisdiction to allow Civil unions after its Civil Unions Act passed the Legislative Assembly in 2012.[3][4] Previously, identical legislation was successfully rejected by the federal Howard government in 2006.[5] In 2013, the Legislative Assembly voted to legalise same-sex marriage,[6] but this law was struck down by the Australian High Court.

From domestic partnerships to civil unions

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Domestic Relationships Act 1994

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The first legislation to officially recognise same-sex couples in the ACT was the Domestic Relationships Act 1994.[7] This provided for distribution of property and finances in the event of a separation, and inheritance in the event of death.

Further legislation in 2003 and 2004

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Nine years later, six extra acts came into force, passed by the Stanhope Government to get end discrimination against gay men, lesbians, transgender people, their partners and their children in all ACT laws and statutes. These acts were:

  • Legislation (Gay, Lesbian and Transgender) Amendment Act 2003[8]
  • Discrimination Amendment Act 2003[9]
  • Parentage Act 2004[10]
  • Sexuality Discrimination Legislation Amendment Act 2004[11]
  • Human Rights Act 2004[12]

Civil Unions Bill 2006

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Initially proposed in March 2006, the Civil Unions Bill 2006 was intended to established civil unions for same-sex or opposite-sex couples, providing equal legal recognition with marriage under territory law.[13] The Australian Capital Territory was the first jurisdiction in Australia to pass such legislation, attracting national attention and sparking a conflict between the ACT and the Commonwealth.

Commonwealth Attorney-General Philip Ruddock said that the draft bill "will not satisfy the Commonwealth", which would intervene unless the bill was changed.[14] The Stanhope Government changed the specified parts of the bill; however, according to Ruddock, other changes were made that circumvented these changes.

The Civil Unions Bill 2006 passed the Australian Capital Territory Legislative Assembly on 11 May 2006.[15] After the law had come into force on 9 June 2006, Ruddock announced that the Commonwealth would move to overrule it. On 13 June 2006, the Federal Executive Council instructed the Governor-General to disallow the Act.[5][16] The disallowance of the Civil Unions Act was criticised heavily by opposition parties and civil rights advocates, and on 15 June 2006 a motion was moved in the Australian Senate to overturn it and reinstate the legislation. This motion was defeated 32-30 by the majority Coalition members, despite Gary Humphries voting against his party.[17]

Civil Partnerships Bill 2006

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In December 2006, the Australian Capital Territory government indicated that it would proceed with new legislation recognising same sex unions based on the United Kingdom civil partnership laws.[18][19] ACT Attorney-General Simon Corbell made the territory's position clear, stating "It's still our intention to give the same level of recognition provided for in the Civil Unions Act." A second ACT bill, the Civil Partnerships Bill 2006, replaced the term "civil union" with "civil partnership", but was essentially the same in its effect.[20] It was blocked again in February 2007.[21][22][23][24]

Civil Partnerships Act 2008

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In December 2007, following the 2007 election and the newly elected Labor government, discussions about reintroducing a revised civil partnerships bill began again.[25][26][27] Unlike his predecessor, John Howard, the new Prime Minister, Kevin Rudd, said that he would not override ACT legislation allowing for civil unions because it was a matter for states and territories.[28][29]

In December 2007, the Civil Partnerships Bill went before the ACT Legislative Assembly, but quickly stalled.[30] In February 2008, Attorney-General Robert McClelland responded to the proposed ACT legislation, saying the Rudd Government would not allow civil unions, and reiterated Labor's preference for a system of state-based relationship registers, similar to Tasmania's model. McClelland said that "the ceremonial aspects of the ACT model were inappropriate."[31] The federal government was willing to accept state-based relationship registers so long as they did not "mimic marriage" by allowing a ceremony. McClelland's position was criticised by Greens Senator Bob Brown, who said it was the ugly face of Labor conservatism.[32]

In May 2008, after several attempts to amend the scheme, ACT Attorney-General Simon Corbell announced the Territory had abandoned its civil partnerships legislation, eliminated any ceremonial aspects, and settled for a system of relationship registers virtually identical to the ones operating in Tasmania and Victoria. The federal Government had not compromised at any point during negotiations.[33][34] The legislation passed the ACT Legislative Assembly on 8 May 2008, giving same-sex couples increased access to superannuation, taxation and social security law reforms. While legislative ceremonies were removed from the Bill, an administrative ceremony may be performed by a representative the ACT Register-General. The Civil Partnerships Act 2008 commenced on 19 May 2008.[35][36][37]

Civil Partnerships Amendment Act 2009

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The Civil Partnerships Amendment Bill 2009 was presented to the ACT Legislative Assembly by the ACT Greens on 26 August 2009, allowing ceremonies to be conducted with civil partnerships, which was the contentious item removed from the previous year's legislation.[38][39] Labor initially accused the Greens of playing politics by resurrecting the issue, but unanimously backed the bill as a matter of principle as it is Labor Party policy to support civil unions.[40]

The bill was approved by legislators on 11 November after an amendment was inserted banning opposite-sex couples from having a civil partnership ceremony. This made the ACT the first territory in the country to legalise civil partnerships ceremonies for same-sex couples.[41] The federal government threatened to quash the legislation after it was passed, but after discussions, the federal attorney general said the issue had been resolved satisfactorily, with the legislation to require that same-sex couples register their intention to hold a ceremony and opposite-sex couples be barred from entering into a civil partnership ceremony. The ACT Legislative Assembly introduced and passed the amendments when it sat next in Parliament.[42] The Act was subsequently repealed as a result of the Territory's implementation of the Civil Unions Act 2012.[43]

Civil Unions Act 2012

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In August 2012, the ACT's Civil Unions Bill passed after legal advice that the federal government had removed its ability to legislate for territorial and state same-sex marriage after it defined marriage as only between man and woman in the Marriage Amendment Act 2004. The Civil Unions Bill granted many of the same rights to same-sex couples as people married under the Marriage Act.[44][45] The Act was not challenged by the Gillard federal Government. The Act was to have been repealed upon commencement of the Marriage Equality (Same Sex) Act 2013 (ACT), which (had it not been struck down by the High Court) would have legalised same-sex marriage in the Territory. Due to the High Court holding the ACT's same-sex marriage law to be invalid, the Civil Unions Act 2012 remains in force.[46] Since 9 December 2017, no new civil unions can be registered, as same-sex couples became eligible to get married under federal law. On 8 December 2018, the government stated that civil unions performed prior to that date and not yet converted into marriages remain valid.[47]

2013 same-sex marriage bill

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Main article: Marriage Equality (Same Sex) Act 2013

On 13 September 2013, the Australian Capital Territory (ACT) Government made the announcement that it would put forward a bill that would legalise same-sex marriage, following a decade-long attempt to legislate in the area.[48] "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 enabled couples who were not able to marry under the Commonwealth Marriage Act 1961 to enter into a marriage in the ACT. It provided for solemnisation, eligibility, dissolution and annulment, as well as regulatory requirements and notice of intentions in relation to same-sex marriages.[49] The bill was debated in the ACT Legislative Assembly on 22 October 2013, and passed by 9 votes to 8.[50][51]

Under the legislation, same-sex marriages were allowed to be performed in the ACT from 7 December 2013.[52] Couples were required to give a minimum one month's notice of intention to marry and 47 couples were eligible to marry in the period between 7 and 12 December, when the High Court struck down the law.[53][nb 1] In total, 31 same-sex couples elected to marry in the 5-day period between the law's implementation and its subsequent annulment by the High Court.[54]

Challenge in the High Court

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Commonwealth v ACT (Same-sex marriage case)
CourtHigh Court of Australia
Decided12 December 2013
Citations[2013] HCA 55, (2013) 250 CLR 441
Court membership
Judges sittingFrench CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ
Case opinions
The Marriage Equality (Same Sex) Act 2013 (ACT) was invalid as inconsistent with the federal Marriage Act 1961 (Cth)

On 10 October 2013, George Brandis, the federal Attorney-General for Australia, confirmed that the Commonwealth Government would challenge the ACT bill, stating that the Abbott government had significant constitutional concerns with respect to the ACT bill.[55]

The full court of the High Court of Australia heard the Commonwealth Government's challenge to the ACT marriage laws on 3 December, less than one week prior to the legislation going into effect.[56] On 13 November, the Commonwealth submitted to the court its written submission, which contained arguments in support of the supposed constitutional and legal invalidity of the ACT's law, stating that the law is "inconsistent" with the provisions of the Self Government Act 1988 (ACT) and the federal Marriage Act.[57] The Solicitor-General of the Commonwealth submitted to the High Court that:[57]

The [Commonwealth] Marriage Act simply does not permit of the possibility that a State or Territory might clothe with the legal status of marriage (or a form of marriage) a union of these kinds. It leaves no room for a State or Territory legislature to create a status of 'bigamous marriage', 'polygamous marriage', 'arranged involuntary marriage' or 'trial marriage'. Similarly, within and by reason of the schema of the Marriage Act, couples who are not man and woman (whether same-sex or intersex) are and must remain for the purposes of Australian law 'unmarried' persons. They remain on that side of the binary divide.

The ACT provided its submission to the Court on 25 November, arguing in response to the Commonwealth that "neither the Marriage Act 1961 (Cth.) nor the Family Law Act 1975 (Cth.) manifest an intention to be an exhaustive or exclusive statement of the [Australian] law governing the institution of marriage".[58] The Commonwealth filed submissions in reply.[59]

High Court ruling

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Further information: Marriage Equality (Same Sex) Act 2013 § In the High Court: Commonwealth v ACT (2013)

The High Court issued its ruling on 12 December 2013, striking down the ACT's law as inconsistent with the federal Marriage Act and proclaiming that the Constitution permitted only the federal parliament to make laws with respect to marriage in Australia.[60]

In its judgment which struck down the ACT's marriage law, the Court held that:[61][62]

The only issue which this Court can decide is a legal issue. Is the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, inconsistent with either or both of two Acts of the federal Parliament: the Marriage Act 1961 and the Family Law Act 1975? That question must be answered "Yes". Under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law (as a majority of the Territory Legislative Assembly decided) is a matter for the federal Parliament.

The Court went further to clarify the extent of the inconsistency of the ACT law with the federal law by stating that:

The 2004 amendments to the [federal] Marriage Act made plain (if it was not already plain) that the federal marriage law is a comprehensive and exhaustive statement of the law of marriage...These particular provisions of the Marriage Act, read in the context of the whole Act, necessarily contain the implicit negative proposition that the kind of marriage provided for by the Act is the only kind of marriage that may be formed or recognised in Australia. It follows that the provisions of the ACT Act which provide for marriage under that Act cannot operate concurrently with the [federal] Marriage Act and accordingly are inoperative.

Passage of Marriage Amendment (Definition and Religious Freedoms) Act 2017

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The Federal Parliament legalised same-sex marriage nationwide in December 2017. The new law came into effect in the ACT, and throughout the nation, on 9 December 2017.[63] After the signing of the Marriage Amendment (Definition and Religious Freedoms) Act 2017, the ACT offered free marriage certificates for couples who married there under the 2013 law and wanted to reaffirm their vows, and for couples registered in a civil union.[64]

See also

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Notes

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  1. ^ The ACT Government says 47 couples have lodged papers to get married (Source: ABC News)

References

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  1. ^ "Same-sex marriage bill passes House of Representatives, paving way for first gay weddings". ABC News. 7 December 2017.
  2. ^ "Same-sex marriage laws overturned". Canberra City News. 12 December 2013. Retrieved 10 August 2017.
  3. ^ "Civil Unions Act 2012". ACT Government: Legislation Register. 4 September 2012. Retrieved 24 June 2014.
  4. ^ "Civil Unions". ACT Government: Justice and Community Safety Division. 25 February 2014. Retrieved 24 June 2014.
  5. ^ a b "G-G to disallow civil unions laws". ABC News. 13 June 2006. Retrieved 24 June 2014.
  6. ^ "ACT legalises same-sex marriage". News.com.au. Archived from the original on 12 July 2014. Retrieved 22 October 2013.
  7. ^ "Domestic Relationships Act 1994". Austlii. Retrieved 21 January 2016.
  8. ^ "Legislation (Gay, Lesbian and Transgender) Amendment Act 2003". ACT Government. Retrieved 11 December 2018.
  9. ^ "Discrimination Amendment Act 2003". ACT Government. Retrieved 11 December 2018.
  10. ^ "Parentage Act 2004". ACT Government. Retrieved 11 December 2018.
  11. ^ "Sexuality Discrimination Legislation Amendment Act 2004". ACT Government. Retrieved 11 December 2018.
  12. ^ "Human Rights Act 2004". ACT Government. Retrieved 11 December 2018.
  13. ^ "ACT to legislate for civil unions". Jon Stanhope. 2 December 2005. Retrieved 22 May 2008.
  14. ^ "Ruddock threatens ACT same-sex union laws". ABC News. 30 March 2006. Retrieved 23 May 2008.
  15. ^ "Civil Unions Act 2006". AustLII. Retrieved 21 January 2016.
  16. ^ The Governor-General was provided with this power by the Australian Capital Territory (Self-Government) Act 1988 (Cth), s 35; the power was removed in 2011.
  17. ^ "Anger as gay civil union ban upheld". Sydney Morning Herald. 15 June 2006. Retrieved 24 June 2014.
  18. ^ Dunkerley, Susanna (12 December 2006). "Equal rights closer for ACT gay couples". NEWS.com.au. Archived from the original on 20 February 2008. Retrieved 23 May 2008.
  19. ^ "New Bid To Pass Gay Partnership Bill In Australian Capital Territory". 365Gay.com. 12 December 2006. Archived from the original on 8 February 2008. Retrieved 23 May 2008.
  20. ^ "ACT revising same sex relationships law". ABC News Online. 20 October 2006. Retrieved 23 May 2008.
  21. ^ "ACT tables gay partnerships bill". ABC News. 12 December 2006. Retrieved 22 May 2008.
  22. ^ Corbett, Kate (7 February 2007). "Gay marriage plan a risk to minors, A-G says". NEWS.com.au. Archived from the original on 5 June 2008. Retrieved 23 May 2008.
  23. ^ "Minors could 'wed' under gay marriage plan". NEWS.com.au. 7 February 2007. Archived from the original on 5 June 2008. Retrieved 23 May 2008.
  24. ^ Corbett, Kate (6 February 2007). "Same-sex union Bill blocked again". NEWS.com.au. Archived from the original on 5 June 2008. Retrieved 23 May 2008.
  25. ^ "AG's to discuss same sex unions". The West. Archived from the original on 19 January 2008. Retrieved 22 May 2008.
  26. ^ "Corbell to revive gay union Act". The Canberra Times. Retrieved 22 May 2008.
  27. ^ "ACT Govt renews push for gay 'partnerships'". ABC News. 29 November 2007. Retrieved 22 May 2008.
  28. ^ Stafford, Annabel (7 December 2007). "Rudd refuses to overrule ACT on gay partnership bill". Melbourne: The Age. Retrieved 3 September 2009.
  29. ^ Scroope, Lloyd (12 December 2007). "Your say: Same sex unions, moral or immoral?". Yass Tribune. Retrieved 3 September 2009.
  30. ^ "Media Release:ACT welcomes Prime Minister's commitment to self-government". Jon Stanhope, Chief Minister, Australian Capital Territory. Retrieved 1 May 2008.
  31. ^ Maley, Paul (7 February 2008). "Gay unions are OK ... just don't do it in public". The Australian. Archived from the original on 11 October 2009. Retrieved 1 May 2008.
  32. ^ "ACT civil partnerships issue will cause government rift: Brown". Australian Broadcasting Corporation. 7 February 2008. Retrieved 7 February 2008.
  33. ^ Maley, Paul; Ryan, Siobhain (5 May 2008). "ACT made to axe gay unions". The Australian. Archived from the original on 21 October 2009. Retrieved 5 May 2008.
  34. ^ Smiles, Sarah (5 May 2008). "Federal veto forces ACT backdown on gay unions". Melbourne: The Age. Retrieved 5 May 2008.
  35. ^ "Watered down same-sex laws pass in ACT". Sydney Morning Herald. 9 May 2008. Archived from the original on 11 May 2008. Retrieved 9 May 2008.
  36. ^ "Civil Partnerships Act 2008". ACT Government. Retrieved 20 May 2008.
  37. ^ "ACT recognises same sex couples". Melbourne: The Age. 20 May 2008. Retrieved 20 May 2008.
  38. ^ "Civil Partnerships Amendment Bill 2009". ACT Government. Retrieved 4 October 2008.
  39. ^ "ACT Legislation Register - 2009 bills presented". ACT Government. Retrieved 4 October 2008.
  40. ^ "Labor supports civil ceremonies bill". ABC News. 22 September 2009. Retrieved 4 October 2008.
  41. ^ Green, Jessica (11 November 2009). "Australian territory legalises gay civil partnership ceremonies". Pink News. Retrieved 18 November 2009.
  42. ^ "ACT win fight on gay wedding laws". AdelaideNow. 26 November 2009. Retrieved 30 November 2009.
  43. ^ "Civil Partnerships Amendment Act 2008 (repealed)". Legislation.act.gov.au. Retrieved 10 August 2017.
  44. ^ "Assembly passes civil unions reforms". 22 August 2012.
  45. ^ "Civil Unions Act 2012". AustLII. Retrieved 21 January 2016.
  46. ^ "Civil Unions". ACT Government: Civil Union registration. 1 December 2017. Archived from the original on 23 March 2019. Retrieved 24 June 2014.
  47. ^ "Why you can no longer enter into a civil union in Canberra". The Sydney Morning Herald. 7 December 2018. Archived from the original on 22 April 2023.
  48. ^ "Australian Capital Territory to legalise gay marriage by the end of the year". TheGuardian.com. 13 September 2013.
  49. ^ "ACT's gay marriage test for Tony Abbott".
  50. ^ "Australia to pass first same-sex marriage law next Tuesday | Gay Star News". Retrieved 18 October 2013.
  51. ^ "ACT legalises same-sex marriage". News.com.au. Archived from the original on 12 July 2014. Retrieved 22 October 2013.
  52. ^ "First same-sex marriages in Canberra". ABC News. 7 December 2013. Retrieved 10 August 2017.
  53. ^ "ACT same-sex marriage laws: First couples give notice of intention to marry". Abc.net.au. 7 November 2013. Retrieved 10 August 2017.
  54. ^ "Same-sex marriage laws overturned". Citynews.com.au. 12 December 2013. Retrieved 10 August 2017.
  55. ^ "Same-sex marriage law High Court challenge confirmed". 10 October 2013. Retrieved 18 October 2013.
  56. ^ "December date set for Aussie high court gay marriage challenge". Pinknews.co.uk. 4 November 2013. Retrieved 10 August 2017.
  57. ^ a b "Written submissions (Commonwealth)" (PDF). 13 November 2013. Case C13/2013 High Court of Australia.
  58. ^ "Written submissions (ACT)" (PDF). 25 November 2013. Case C13/2013 High Court of Australia.
  59. ^ "Written submissions in reply (Commonwealth)" (PDF). 29 November 2013. Case C13/2013 High Court of Australia.
  60. ^ Adam Withnall (12 December 2013). "Australia: Gay marriage law reversed by high court less than a week after first weddings". The Independent. Retrieved 15 December 2013.
  61. ^ Commonwealth v Australian Capital Territory [2013] HCA 55, (2013) 250 CLR 441
  62. ^ "Commonwealth v ACT: judgement summary" (PDF). 12 December 2013. Case C13/2013 High Court of Australia.
  63. ^ "Same-sex marriage signed into law by Governor-General, first weddings to happen from January 9". ABC News. 8 December 2017.
  64. ^ "Free marriages for same-sex couples who wed in Canberra in 2013". ABC News. 8 December 2017. Retrieved 8 December 2017.
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