SUBMISSION TO THE SENATE LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE ON THE PROVISIONS OF THE MARRIAGE LEGISLATION AMENDMENT BILL 2004

Introduction

1. The Human Rights and Equal Opportunity Commission ('the Commission') is established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth). It is Australia's national human rights institution.

2. The Commission's relevant functions are set out in s.11 of the Human Rights and Equal Opportunity Commission Act 1986 ('HREOC Act') and include promoting an understanding and acceptance of human rights, as well as promoting the public discussion of human rights in Australia.(1)

3. The Commission confines its submission to the legal issues arising from Australia's international human rights obligations, and does not seek to address the moral and political issues raised by the Marriage Legislation Amendment Bill 2004 ('the Bill').

The Marriage Legislation Amendment Bill 2004

4. The Bill seeks to amend 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 into for life'; and to confirm that unions solemnised overseas between same sex couples will not be recognised as marriages in Australia. It also seeks to amend the Family Law Act 1975 (Cth) to prevent inter-country adoptions by same sex couples under multilateral or bilateral agreements or arrangements.

5. The stated aim of the Bill is to 'protect the institution of marriage' and 'reflect the Commonwealth's view that the adoption of children by same sex couples is undesirable'.(2)

6. As a preliminary point, the Commission notes that some aspects of the Bill may be of little or no utility. In particular, in respect of the definition of marriage, the common law in Australia appears to be clear that only opposite sex couples may marry.(3) In respect of adoption, the practical opportunities for same sex couples to adopt children from overseas appear to be very limited, given overseas adoption is dependent upon eligibility criteria in the child's country of origin.(4)

7. It is perhaps unfortunate that measures of little apparent utility are being pursued in a manner which has been reported to have caused at least some gay and lesbian Australians to feel targeted.(5) This is particularly so given the Commission has previously reported on its concerns in respect of such discrimination in Australia, including in the area of superannuation.(6) The Commission welcomes the Government's reform of superannuation law in respect of same sex couples(7) and considers that ensuring equality for gay and lesbian Australians remains a pressing issue.(8)

8. The Commission's submissions will focus on the third of the issues the Committee has been asked to consider, 'whether the Bill breaches international instruments including the Hague Convention and human rights mechanisms prohibiting discrimination on the grounds of sexual orientation.' The Commission will also comment briefly on the fifth issue the Committee has been directed to consider, 'the consequences of the Bill becoming law, and those remaining avenues available to the Commonwealth for legally recognising inter-personal relationships including same-sex relationships.'

9. The Commission's concern is to ensure that the Bill does not breach human rights standards. The human rights standards which the Commission wishes to apply to the Bill are contained within the International Covenant on Civil and Political Rights ('ICCPR').(9) Australia has acceded to the ICCPR and its terms are binding upon it. (10) Australia has also ratified the Optional Protocol to the ICCPR,(11) which provides an international complaint mechanism for individuals to the United Nations Human Rights Committee ('HRC'), including in relation to legislative measures which operate to infringe their rights under the ICCPR.

Issue 3 - whether the Bill breaches international instruments including the Hague Convention and human rights mechanisms prohibiting discrimination on the grounds of sexual orientation

Marriage and the ICCPR

10. Article 23(12) of the ICCPR guarantees rights of protection to the family, which the HRC has held is not confined by the concept of marriage.(13)

11. Apart from establishing the family as the fundamental group unit of society, article 23 was aimed at establishing both the equality of spouses and freedom of marriage. The right to marriage in article 23.2 of the ICCPR refers only to men and women. At the time of writing the HRC has only once considered the issue of same sex marriage, in Joslin v New Zealand (2002), and found that States parties are only required to recognise marriage between a man and a woman.(14)

12. Some commentators have suggested that the views of the HRC may evolve with State practice. For example, Joseph, a leading authority on the ICCPR, has noted that at the time of Joslin: 'only one nation, the Netherlands, recognises same sex marriages. In those circumstances, the HRC was unwilling to look beyond article 23(2) to derive a guarantee of same sex marriage rights from other ICCPR provisions.'(15)

13. However, regardless of the possibility of future developments, the views of the HRC are persuasive if not authoritive in respect of Australia's international legal obligations under the ICCPR.(16) Hence on the basis of Joslin, the Bill's proposal to amend the Marriage Act 1961(Cth) to define marriage as 'the union of a man and a woman' does not appear to be in breach of the ICCPR as currently interpreted.

14. However that is not the end of the matter in terms of Australia's international legal obligations. In Joslin, the separate but concurring opinion of Messrs. Lallah and Scheinin noted that differential treatment between married couples and same sex couples not allowed under the law to marry 'may very well, depending on the circumstances of the concrete case, amount to prohibited discrimination.'(17) This was confirmed last year by the HRC in Young v Australia(18) (discussed at paragraph 18 below). We consider that issue in the following section.

Denial to same sex couples of benefits available to unmarried heterosexual couples in Australia

15. Non-discrimination together with equality before the law and the equal protection of the law without any discrimination constitute basic and general principles relating to the protection of human rights.(19) In addition to the ICCPR, these fundamental principles are recognised in a number of treaties which Australia has ratified.(20) Decisions of the HRC indicate that the obligation embodied in article 26 to respect and ensure the 'equal protection of the law' constitutes an obligation to prevent discrimination in the law, in the application of the law or in any action under the authority of the law.(21) It therefore applies to any laws enacted to give effect to any rights regardless of whether those rights are specifically provided for in the ICCPR.(22)

16. Australia has extensive legal recognition of heterosexual unmarried relationships: 'With very few exceptions, cohabiting heterosexual partners are on a par with married spouses in terms of their legal rights and obligations.'(23) As the Commission has previously stated:

"... the Sex Discrimination Act 1984 (Cth) ("the SDA") proscribes discrimination across wide areas of public life, including powers and functions exercised under a Commonwealth law or for the purposes of a Commonwealth program,(24) on the grounds of marital status.(25) That proscription... affects the legal significance of the institution of marriage in Australia. Thus, whatever the historical origins of the institution, the general principle is that marital status (being the state of being married or otherwise) is an irrelevant consideration for most public purposes.(26)"(27)

17. At a Commonwealth level, for example, the Income Tax Assessment Act 1997 (Cth) grants 'spouses' a range of benefits that are not available to single persons. The definition of spouse in that Act as 'a person who, although not legally married to the person, lives with the person on a genuine domestic basis as the person's husband or wife',(28) therefore includes unmarried heterosexual couples. Where legislation does not define what is meant by 'spouse', courts have interpreted the term mean someone who could be married but is not married, that is, a heterosexual person who is unmarried cohabiting with a partner.(29)

18. It is of concern that defining 'spouse' in this way excludes same sex couples, and results in differential and often detrimental treatment for same sex couples as opposed to unmarried heterosexual couples. In 2003 the HRC found in Young v Australia(30) that the Veteran's Entitlement Act 1986 (Cth) breached article 26(31) of the ICCPR by denying unmarried persons who were the same-sex as their deceased partner access to a veteran's pension.(32) The pension was available to people who had been married to their deceased partner and those who had been living with their deceased partner in a heterosexual relationship. The HRC confirmed its earlier finding that discrimination on the basis of sexual orientation is prohibited by article 26 unless it is reasonable and objective:

'The Committee recalls its constant jurisprudence that not every distinction amounts to prohibited discrimination under the Covenant, as long as it is based on reasonable and objective criteria. The State party provides no arguments on how this distinction between same-sex partners, who are excluded from pension benefits under law, and unmarried heterosexual partners, who are granted such benefits, is reasonable and objective, and no evidence which would point to the existence of factors justifying such a distinction has been advanced. In this context, the Committee finds that the State party has violated article 26 of the Covenant by denying the author a pension on the basis of his sex or sexual orientation.'(33)

19. The Australian Government disputed the HRC's factual findings in Young v Australia but noted that 'distinction on the ground of sexual orientation [i]s proscribed by article 26.'(34)

20. Despite this recognition by the Government, same sex couples continue to encounter financial and legal discrimination in the areas of health care,(35) property settlements, pension entitlements, industrial relations, the defence forces, social security, aged care, estates and other areas. Many State and Territory laws also discriminate against same sex couples. For example, an audit undertaken by the South Australian Equal Opportunity Commission in 2003 found that 54 laws in South Australia treat same-sex couples differently from opposite-sex couples.(36) This discrimination affects both same sex couples and their children.

21. Returning then to the terms of the Bill, what is proposed will reinforce the (already generally accepted) position, whereby same sex couples may not marry. While not in itself a breach of the right to marry conferred by article 23 of the ICCPR, that prohibition makes abundantly clear that same sex couples have no means of accessing the benefits discussed above. They may not choose to do so by marrying. Nor will the law afford their relationship the same recognition accorded to unmarried heterosexual couples. On the basis of the HRC's decisions in Young and Joslin, this would appear to constitute a breach of article 26 of the ICCPR. Therefore the Commission reiterates the statement made in its 1997 paper, Human Rights for Australia's gays and lesbians:

'The failure to afford recognition to same sex relationships not only denies same sex partners the opportunity to make a public commitment to each other but also denies a range of entitlements otherwise available to partners in genuine relationships.'(37)

Marriage and the Hague Convention

22. As a signatory to the Hague Convention on the Recognition and Celebration of Marriages (the Convention),(38)Australia is required to recognise a marriage that is validly entered into in a foreign state (whether or not those states are a party to the Convention).(39) Australia implemented its obligations under Chapter III of the Convention in the Marriage Amendment Act 1985, which inserted a new Part VA into the Marriage Act 1961.

23. The Convention does not contain a definition of the term 'marriage'. However the Convention does exclude certain types of marriages(40) and sets out various circumstances in which State parties may refuse to recognise the validity of a marriage, including where the recognition of the validity of a marriage would be 'manifestly incompatible with its public policy'.(41)

24. At the time of the drafting of the Convention, the question of whether same-sex marriages should be excluded from the Convention was put to governments in a questionnaire.(42) In a preparatory report (the Dyer Report) to the Convention, it was suggested that 'out of an abundance of caution' the Convention should be limited to 'marriages between persons of different sexes',(43) because of the possibility that States may, in the future, make provision for same-sex marriage.(44) However, most governments, including the Australian government, indicated that they did not see any need for such a provision.(45) Accordingly same-sex marriages are not expressly excluded from the convention;(46) nor are they included in the circumstances in which a state may refuse to recognise the validity of a marriage.(47)

25. Commentators generally agree that the term 'marriage' used in the Convention at the time that it was drafted referred to traditional heterosexual marriage,(48) although the explanatory report to the Convention states that the omission of a definition of marriage was 'deliberate' and, as such, the term 'marriage' in the Convention should be understood in its 'broadest international sense'.(49)

26. That the drafters of the Convention do not appear to have intended that the Convention would extend to same sex marriages does not mean such marriages could not be recognised as falling within the scope of the Convention in the future, in the event of further international development in relation to the recognition of same-sex marriages. The International Court of Justice has noted that 'interpretation [of a treaty] cannot remain unaffected by the subsequent development of law' and that 'an international instrument has to be interpreted within the framework of the entire legal system prevailing at the time of the interpretation'.(50)

27. However given the limited present recognition of same sex marriage internationally,(51) it appears that the Bill may not currently be in breach of Australia's international obligations under the Convention.

Preventing same-sex couples from adopting from overseas

28. The Attorney-General stated in his second-reading speech that one of the aims of the Bill is to give all children 'the opportunity, all other things being equal, to be raised by a mother and a father'.(52) As noted at the outset (see paragraph 6), the practical opportunities for same sex couples to adopt children from overseas appear to be very limited, given such adoption is dependent upon the eligibility criteria for adoption in the child's country of origin.(53) However, to the extent that such adoptions are a practical possibility, the Bill raises further concerns in terms of Australia's international obligations.

29. The Bill proposes to prohibit adoption of children by 'two persons of the same sex who live together as a couple.' To establish a breach of article 26, it must be shown that the discrimination is not proportional to the pursuit of a legitimate aim(54) - such as the protection of the best interests of the child, say, under article 21 of the Convention on the Rights of the Child ('CROC').(55) International case law is currently unclear on this point.(56) However article 21 requires that the best interests of the child be the paramount consideration, rather than the sexual orientation of the prospective parents. The amendments proposed by the Bill would prevent an objective assessment of what is in a given child's best interests on a case-by-case basis, or a consideration of individual circumstances.

Issue 5 - the consequences of the Bill becoming law, and those remaining avenues available to the Commonwealth for legally recognising inter-personal relationships including same-sex relationships

30. By reason of the matters above, the Commission is concerned that if the Bill becomes law, it will entrench current discrimination in respect of a number of benefits and entitlements which heterosexual unmarried couples may access, and from which same sex couples are currently excluded. At the very least, the Commission would like to see same sex relationships afforded the same legal relationship status on the basis of the same range of criteria as unmarried heterosexual relationships. The Commission is not in a position to comment on other options for recognising same sex relationships, such as the enactment of registered partnership laws, in the absence of specific models for consideration.

Conclusion

31. Australia's international obligations under the ICCPR as currently interpreted only require Australia to recognise marriage between a man and a woman. Similarly, the Hague Convention would not currently appear to require Australia to recognise same sex marriages entered into overseas.

32. However, Australia's obligations under the ICCPR do require Australia to remove all unjustifiable distinctions between same sex partners, who are excluded from certain benefits under law, and unmarried heterosexual partners, who are granted such benefits.

33. In respect of adoption, the Bill may breach the CROC in proposing a blanket ban on same sex couples adopting from overseas, without allowing for an objective assessment of what is in an individual child's best interests.

34. The Commission notes that the common law in Australia appears to make clear that only opposite sex couples may marry and is thus concerned that the Bill's preoccupation with this point may be seen to be targeting same sex couples. Over the years the Commission has consistently pointed to the law's failure to recognise same sex relationships and to make discrimination against gay and lesbian Australians unlawful, and again encourages the Government, consistent with its obligations under the ICCPR, to address those failings.

Human Rights and Equal Opportunity Commission
133 Castlereagh Street
Sydney NSW 2000
30 July 2004


Endnotes

1. Section 11(1)(g) of the HREOC Act.
2. Explanatory Memorandum to the Marriage Legislation Amendment Bill 2004.
3. In R v L (1991) 174 CLR 379, Brennan J said:

    'In Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130 at 133, Lord Penzance defined marriage as "the voluntary union for life of one man and one woman, to the exclusion of all others" and that definition has been followed in this country and by this court: Calverley v Green (1984) 155 CLR 242 at 259-60; 56 ALR 483 at 495; Khan v Khan [1963] VR 203 at 204.'

4. The Victorian Intercountry Adoption Kit states that only Ethiopia is prepared to allow couples living in de facto relationships to adopt, and only a handful of others allow single persons to adopt: http://hnb.dhs.vic.gov.au/commcare/yafs_su.nsf/TOC/A0D54E343044389B4A2567520005DAA0#TOC
5. See for example, R. Croome, 'The Fabric of Society', BNews 3 June 2004: 'The marriage ban sends out the clear message that same sex relationships are not as loving and not as committed as their heterosexual counterparts. The adoption ban says that parenting by same sex couples is a threat to children.'
6. The Commission has undertaken the following work in this area:

    In 1992, pursuant to s. 31(e) of the HREOC Act, the Commission reported to the Attorney-General in relation to the ADF policy on homosexuality.

    In 1997, the Commission intervened in the High Court proceedings in Rodney Croome & Anor v The State of Tasmania (1997) 191 CLR 119, concerning the criminalisation of homosexuality in Tasmania.

    In 1997, the Commission made a submission to the Senate Legal and Constitutional References Committee Inquiry into Sexuality Discrimination. This submission formed the basis of a paper released by the Commission, also in 1997, titled Human Rights for Australia's gays and lesbians.

    In 1998, pursuant to s. 31(b) of the HREOC Act, the Commission reported to the Attorney-General on its inquiry into a complaint of discrimination in employment and occupation concerning discrimination on the ground of sexual preference. The Commission found that the Catholic Education Office (CEO) had discriminated against the complainant on the basis of sexual preference by refusing her application for classification as a teacher in Catholic schools. The reason that had been advanced by the CEO for the refusal was her 'high profile as a co-ordinator of the Gay and Lesbian Teachers and Students Associations and her public statements on lesbian lifestyles.'

    In April 1999, pursuant to sections 11(1)(e) and 31(a) of the HREOC Act, the Commission reported to the Attorney-General on its examination of federal superannuation law as it discriminated against surviving same sex partners. This report, Superannuation Entitlements of Same-Sex Couples, details the findings of an examination of the Superannuation Act 1976 (Cth), the Defence Force Retirement and Death Benefits Act 1973 (Cth), the Superannuation Act 1990 (Cth) and the Military Superannuation and Benefits Act 1991(Cth).

    In 1999 the Commission initiated a network for young lesbian, gay and bisexual people in rural and regional areas, with co-sponsorship from the Australian Youth Foundation. The Outlink Project aims to bring together young lesbian, gay and bisexual rural people, and the people who work with them, so they can share their experience, skills and expertise and have a national voice. In 2000, Outlink developed Not Round Here: Affirming Diversity, Challenging Homophobia, a training manual designed for use in anti-homophobia training for service providers, including training modules with a specific rural perspective.

7. Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2004 (Cth), Schedule 2.
8. As the Commission stated in its 1997 paper, Human Rights for Australia's gays and lesbians: 'There is an urgent need for Commonwealth action to outlaw discriminatory treatment to which gay men and lesbians are subjected. In addition to general anti-discrimination prohibitions there is also a need for some legal recognition of same sex and trans-gender relationships.'
9. Schedule 2 to the HREOC Act.
10. Opened for signature 16 December 1966 and entered into force on 23 March 1976.
11. Opened for signature 16 December 1966, 999 United Nations, Treaty Series 302 (entered into force 23 March 1976, acceded to by Australia 25 December 1991). See articles 2 and 5.
12. Article 23 of the ICCPR provides:

    '1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
    2. The right of men and women of marriageable age to marry and to found a family shall be recognized.
    3. No marriage shall be entered into without the free and full consent of the intending spouses.
    4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.'

13. Hendriks v Netherlands (201/85), at para 10.3.
14. (902/1999) at para 8.2.
15. S Joseph 'Human Rights Committee: Recent Cases', Human Rights Law Review Vol 3, No 1 Spring 2003. pp 91-103 at 102. It is arguable that the right of men and women to marry in article 23 should be interpreted in light of article 2.1, which provides for the principle of equal treatment and non-discrimination in respect of ICCPR rights, and article 26, which provides the broader right to equality and non-discrimination on the basis of sexuality.
16. Nicholls v Registrar Court of Appeal [1998] 2 NZLR 385 at 404 per Eichelbaum CJ. See also R Rishworth 'The Rule of International Law' in G Hushcroft and R Rishworth Litigating Rights: Perspectives from Domestic and International Law Hart Publishing 2002 pp267-279 at 275; E Evatt 'The Impact of International Human Rights on Domestic Law' in G Hushcroft and R Rishworth Litigating Rights: Perspectives from Domestic and International Law Hart Publishing 2002 pp281-303 at 295. See also S Joseph, et al, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, Oxford University Press 2000 at 14 [1.33].
17. In Joslin, however, the authors did not demonstrate that they were personally affected in relation to other benefits which might flow from marriage.
18. (2003) (941/2000).
19. Human Rights Committee General Comment 18 (1989), para 1 in Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev 4 (2000) at 103.
20. ICCPR, article 2; Convention on the Rights of the Child, article 2. See also Universal Declaration of Human Rights, articles 2, 6 and 7.
21. See, for example, Broeks v Netherlands (172/1984), UN Doc A/42/40 (1987). The international legal approach to equality is one of substantive rather than formal equality: W McKean, 'The Meaning of Discrimination in International and Municipal Law' (1970) 44 British Yearbook of International Law 178 at 185-186; G Triggs, 'Australia's Indigenous Peoples and International Law' (1999) 23 Melbourne University Law Review 372 at 379-381; Zwaan-de Vries v Netherlands (182/84) 9 April 1987.
22. Broeks v Netherlands (172/84) at para12.4.
23. J Millbank and W Morgan, 'Let Them Eat Cake and Ice Cream: Wanting Something "More" from the Relationship Recognition Menu', in R Wintemute and M Andenaes (eds) in Legal Recognition of Same-Sex Partnerships: A study of National European and International Law Hart Publishing 2001 pp 295-316 at 395; 'The major exception to this is access to property distribution regimes on relationship breakdown, which are governed by state and territory law if the couple are unmarried, and federal law of they are married.'
24. See for example SDA s.26.
25. Similar provisions appear in laws of all States and Territories.
26. For example, many of the rights that accrue to married persons are also available to persons in a de facto relationship: see for example, De Facto Relationships Act 1991 (NT); De Facto Relationships Act 1996 (SA); Social Security Act 1991 (Cth); Property (Relationships) Act 1984 (NSW); Wills, Probate and Administration Act 1898 (NSW); Property Law (Amendment) Act 1998 (Vic); Succession Act 1981 (Qld); Local Government Act 1995 (WA); and Maintenance Act 1967 (Tas).
27. Para 5.15 of submission of the Commission, intervening, in The Attorney-General for the Commonwealth & "Kevin and Jennifer" & Human Rights and Equal Opportunity Commission [2003] FamCA 94 (21 February 2003).
28. Section 995-1(1).
29. See Commonwealth v HREOC and Muller 52 ALD 507 at 513; Commonwealth v HREOC and Kelland (1998) EOC 92-932.
30. (941/2000).
31. . Article 26 of the ICCPR provides:
'All Persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any grounds such as race, colour, sex, language, political or other opinion, national or social origin, property, birth or other status.'
32. At para 11.
33. Young, para 10.4.
34 . The Government's response of 11 June 2004 to the HRC in respect of Young includes the following comments:

'... The author did not demonstrate that any heterosexual or homosexual partner of Mr Cains would have been entitled to the pension under the VEA. The relevant provisions of the VEA require that the veteran's death be `war-caused'. The records of the Department of Veterans' Affairs do not show that Mr Cains' death was `war-caused', nor does the author allege that the death was 'war-caused'.

In addition, the author failed to provide sufficient evidence that he was in fact the de facto partner of Mr Cains. Mr Cains did not at any stage indicate in correspondence with the Department of Veterans' Affairs that he was anything other than single.

Therefore, the author is unable to show that his eligibility for the pension under the VEA is based on a distinction on the ground of sexual orientation as proscribed by article 26 of the International Covenant on Civil and Political Rights (the Covenant).'

35. See for example section 8 of the Medicare Levy Act 1986 (Cth), which provides that certain rebates are available to married couples.
36. 'Removing legislative discrimination against same-sex partners: Discussion paper'. South Australian Equal Opportunity Commission (2003), available at www.sacentral.sa.gov.au/agencies/agd/samesexdiscrim.pdf
37. Page 15.
38. Opened for signature, 14 March 1978, [1991] ATS 16, entered into force for Australia and generally on 1 May 1991. The other signatories to the Convention are The Netherlands, Luxembourg, Portugal and Egypt.
39. See article 9 of the Convention. That obligation has been implemented by Australia in s 88D(1) of the Marriage Act 1961.
40. Excluded marriages include marriages celebrated by military authorities, marriages celebrated aboard ships or aircraft, proxy marriages, posthumous marriages and informal marriages: see article 8 of the Convention. However Australia did not choose to incorporate article 8 into Part VA of the Marriage Act 1961.
41. See articles 11, 14 of the Convention. Those circumstances have been incorporated into the Marriage Act 1961: see s. 88D(2).
42. P Nygh 'The consequences for Australia of the new Netherlands law permitting same gender marriages, (2002) 16 Australian Journal of Family Law 139,142.
43. A Malmstrom, Explanatory Report, Actes et Documents de la XIIIe Session 1976, Tome III, p 289, cited in P Nygh op.cit..
44. Ibid, 142.
45. P Nygh op.cit.. The reason for this may have been that the Australian government considered it axiomatic that 'marriage' referred to a 'union between a man and a woman'.
46. See article 8 of the Convention.
47. See articles 11, 14 of the Convention.
48. See K Siehr 'Family Unions in Private International Law' (2003) 3 Netherlands International Law Review 419, 426; P Nygh op.cit.; K Waaldijk, 'Taking same-sex partnerships seriously: European experiences as British perspecitives?' (2003) International Family Law, 84.
49. A Malmstrom, Explanatory Report, Actes et Documents de la XIIIe Session 1976, Tome III, p 41, cited in P Nygh op.cit..
50.Namibia (Legal Consequences), Advisory Opinion, ICJ Rep (1971), 31. See also Jennings and Watts note that the ordinary meaning of a term in a treaty can be understood as evolving in light of subsequent legal developments among states-parties as 'the concepts embodied in a treaty may be not static but evolutionary': S Hall Public International Law (2003) 95; I Brownlie Principles of Public International Law (6th ed: 2003) 605. Cf Malcolm Shaw International Law (5th ed: 2003), 841. See also the comments of Kirby J in Applicant 'A' v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 293; P Nygh op.cit.
51.The Netherlands and Belgium are the only countries to recognise same-sex marriage at the time of writing. In the United States, the State of Massachusetts has enacted legislation permitting gay marriage following the court ruling in Goodridge et al v Department of Public Health et al 440 Mass. 302. In Canada the Ontario and British Columbia Courts of Appeal have held it unconstitutional to deny same-sex couples a marriage licence: Halpern v Canada (A-G) [2003] 65 OR (3d) 161 (CA); Barbeau v British Columbia (A-G) 2003 BCCA 251, respectively. We note that the Canadian government has sought an advisory opinion from the Canadian Supreme Court in relation to a proposal to introduce legislation to extend the definition of civil marriage to same-sex couples. The hearing on the reference is scheduled for October 2004.
52. Commonwealth Attorney-General, Mr. Philip Ruddock MP, Marriage Legislation Amendment Bill 2004, Second Reading Speech.
53. See footnote 4 above.
54. See for example Young at para 10.4.
55. Opened for signature 20 November 1989, 1577 United Nations Treaty Series 3; entered into force 2 September 1990; ratified by Australia 17 December 1990; declared an international instrument for the purposes of s 47(1) of HREOC Act 22 December 1992; gazetted 3 January 1993 (see s 3 HREOC Act).
56. In Salgueiro da Silva Mouta v. Portugal (1999) 31 European Human Rights Reporter 1069 (21 December 1999), the European Court of Human Rights held that denying the applicant custody of his four-year old daughter, because he was living in a same-sex relationship, contravened his right to privacy in his family life and amounted to discrimination in contravention of the articles 8 and 14 of the European Convention on the Protection of Human Rights and Fundamental Freedoms. The Court considered that the applicant had been discriminated against on the basis of his sexual orientation and that this discrimination was unjustified in the circumstances. However see also Frette v France (2002), in which the European Court of Human Rights held that France could refuse to allow same sex couples to adopt children. Here the Court differed from its approach in Salgueiro da Silva Mouta v. Portugal and applied the margin of appreciation doctrine, finding that states have a measure of discretion in determining which measures may appropriately be adopted under the European Convention in pursuit of a legitimate aim. This judgment has been criticised (see T.W. Stone, 'Margin of Appreciation Gone Awry: The European Court of Human Rights' Implicit Use of the Precautionary Principle in Frette v. France to Backtrack on Protection from Discrimination on the Basis of Sexual Orientation' (2003) 3 Connecticut Public Interest Law Journal 271).

Last updated 26 August 2004.