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Inquiry into the Marriage Equality Amendment Bill 2009 (2009)

Legal Legal
Friday 14 December, 2012

Inquiry into the Marriage Equality Amendment Bill 2009

Australian Human Rights Commission
Submission to the Senate Standing Committee on Legal and Constitutional
Affairs

10 September 2009

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Table of Contents

1 Introduction

2 Summary

3 Recommendations

4 How does the principle of equality apply to same-sex marriage?

4.1 Equality is a key human rights principle

4.2 The Joslin case

5 Same-sex relationships are recognised in many other Western nations on the grounds of equality

6 Are there any other ways in which same-sex relationships may be formally recognised?

7 Would allowing same-sex marriage restrict any other human rights?

8 Conclusion


1 Introduction

  1. The Australian Human Rights Commission (the Commission) makes this
    submission to the Senate Standing Committee on Legal and Constitutional Affairs
    Inquiry into the Marriage Equality Amendment Bill 2009.

  2. The Marriage Equality Amendment Bill 2009 (the Bill) was introduced in the
    Senate by Greens Senator Sarah Hanson-Young on 24 June 2009. The Bill seeks to
    amend the Marriage Act 1961 (Cth) (Marriage Act) to:

    • permit marriage between two people regardless of sex, sexuality or gender
      identity

    • recognise in Australia same-sex marriages legally entered into in other
      countries.

  3. On 25 June 2009 the Bill was referred to the Senate Sanding Committee on
    Legal and Constitutional Affairs for inquiry and report. The Committee’s
    report is due on 26 November 2009.

2 Summary

  1. The Commission believes that formal relationship recognition should be
    available to same-sex couples on an equal basis with opposite-sex couples,
    Therefore the Commission supports the amendments allowing the civil marriage of
    two people, regardless of their sex, sexuality or gender identity.

  2. The Commission also supports the recognition in Australia of same-sex
    marriages entered into in other jurisdictions.

  3. Equality is a fundamental principle of international law. The Commission
    believes that a human rights analysis based on the principle of equality
    supports the recognition of same-sex marriage.

  4. Recent reforms to remove discrimination against same-sex couples and their
    children from most Commonwealth legislation were significant steps towards
    equality for people in same-sex relationships. However, systems of formal
    relationship recognition are not available to same-sex couples on an equal
    basis. Removing the prohibition on civil marriage for same-sex couples is the
    next step toward their full equality with opposite-sex couples.

3 Recommendations

  1. Recommendation 1: All forms of relationship recognition should be
    available to same-sex couples on an equal basis with opposite-sex couples. This
    includes civil marriage, which should be available to two people, regardless of
    their sex, sexuality or gender identity.

  2. Recommendation 2: Civil marriages between same-sex couples lawfully
    entered into in other jurisdictions should be recognised in
    Australia.

4 How does the principle
of equality apply to same-sex marriage?

  1. The Commission has welcomed the removal of discrimination against same-sex
    couples and their children from most Commonwealth legislation. These reforms
    followed the release of Same-Sex: Same Entitlements, the
    Commission’s 2007 report of the National Inquiry into Discrimination
    against People in Same-Sex Relationships: Financial and Work-Related
    Entitlements and Benefits.

  2. However, the Marriage Act continues to discriminate against same-sex couples
    by explicitly excluding them from the opportunity to have their relationship
    formally recognised under federal law. Same-sex couples do not have access to
    relationship registration, civil unions or civil marriage under federal
    law.

  3. The principle of equality requires that any formal relationship recognition
    available under federal law to opposite-sex couples should also be available to
    same-sex couples. This includes civil marriage.

  4. Reforms to financial and workplace entitlements have made the absence of
    equality in formal relationship recognition all the more obvious. In particular,
    same-sex couples are being asked to declare their relationships to public
    authorities such as Centrelink at the same time as the government is refusing
    the right to formal relationship recognition. The Commission shares the concerns
    expressed by members of the gay, lesbian, bisexual, transgender and intersex
    (GLBTI) community regarding this anomaly.

  5. The Commission believes that the maintenance of laws that discriminate on
    the ground of sexuality and gender identity tend to support and perpetuate
    beliefs likely to lead to violence and other anti-social conduct against members
    of the GLBTI community

4.1 Equality is a key
human rights principle

  1. Equality is a key human rights principle. It is set out in article 26 of the International Covenant on Civil and Political Rights (ICCPR), which
    states that all people ‘are equal before the law and are entitled without
    any discrimination to the equal protection of the law’.

  2. The right to equality before the law guarantees equality with regard to the
    enforcement of the law. The right to the equal protection of the law without
    discrimination is directed at the legislature and requires State Parties to
    prohibit discrimination and take action to protect against
    discrimination.

  3. Article 26 of the ICCPR does not specifically mention ‘sexual
    orientation’ or ‘sexuality’ in the prohibited grounds of
    discrimination. However, the phrase ‘other status’ has been
    interpreted to include ‘sexual
    orientation’.[1] The United
    Nations Human Rights Committee (Human Rights Committee) has emphasised the
    obligation on all parties to the ICCPR to provide ‘effective
    protection’ against discrimination based on sexual
    orientation.[2]

  4. The Human Rights Committee has considered two cases from Australia, Toonen v Australia and Young v Australia, in which it has
    expressed the view that one or the other of the categories of
    sex’ or ‘other status’ protect people
    from discrimination on the basis of sexual orientation under the
    ICCPR.[3]

4.2 The
Joslin case

  1. To date, the Human Rights Committee has only considered the issue of same
    sex marriage once, in 1999. In Joslin v New Zealand (Joslin)[4], the authors
    claimed that failure of the Marriage Act 1955 (NZ) to provide for
    same-sex marriage discriminated against them on the basis of their sex and
    indirectly on the basis of their sexual orientation. The authors argued that the
    denial of the ability to marry had ‘a real adverse impact’ on their
    lives. The authors said they were excluded from full membership of society,
    their relationship was stigmatised and, unlike heterosexual couples, they did
    not have the ability to choose whether or not to marry.

  2. The Human Rights Committee found that ‘a mere refusal to provide for
    marriage between homosexual couples’ does not violate the State
    Party’s obligations under the
    ICCPR.[5] This conclusion relied on
    article 23(2) of the ICCPR rather than article 26. Article 23(2) states that
    ‘[t]he right of men and women of marriageable age to marry and to found a
    family shall be recognized’.

  3. However, Joslin does not prevent the recognition of same-sex marriage. It
    merely concludes that the ICCPR does not impose a positive obligation on states
    to do so.

5 Same-sex relationships
are recognised in many other Western nations on the grounds of equality

  1. There is an increasing international trend towards the recognition of
    same-sex marriage, including in Canada, Spain, the Netherlands, Belgium, Norway,
    Sweden, South Africa and several states in the USA.

  2. Some commentators have suggested that the views of the Human Rights
    Committee may evolve with State practice. For example, Joseph has noted that at
    the time of Joslin only one nation, the Netherlands, recognised same sex
    marriages. In those circumstances, the Human Rights Committee was unwilling to
    look beyond article 23(2) to derive a guarantee of same sex marriage rights from
    other ICCPR provisions’.[6] This situation has now changed and there is a trend towards the judicial and
    legislative recognition of same-sex marriage.

  3. For example, in Minister of Home Affairs v Fourie; Lesbian and Gay
    Equality Project v Minister of Home Affairs
    (Fourie)[7], the South
    African Constitutional Court declined to follow the approach of the Human Rights
    Committee.[8] The Court also said the
    reference to the right of men and women to marry in article 16(1) of the Universal Declaration of Human Rights was ‘descriptive of an
    assumed reality, rather than prescriptive of a normative structure for all
    time’[9] before observing
    ‘rights, by their nature, will atrophy if they are
    frozen’.[10]

  4. In his leading judgment Sachs J stated [at 72]:

    If heterosexual
    couples have the option of deciding whether to marry or not, so should same-sex
    couples have the choice as whether to seek to achieve a status and a set of
    entitlements and responsibilities on a par with those enjoyed by heterosexual
    couples. It follows that, given the centrality attributed to marriage and its
    consequences in our culture, to deny same-sex couples a choice in this respect
    is to negate their right to self-definition in a most profound way
    .
    [footnotes omitted, emphasis added]

  5. In another example, in 2003 the Ontario and British Columbia Courts of
    Appeal held that it was unconstitutional to deny same-sex couples the right to
    marry.[11] In Halpern v
    Canada
    , the exclusion of same-sex couples from a fundamental societal
    institution was found to be a violation of the right to equality. The Court
    declared the existing common law definition of marriage invalid to the extent
    that it refers to ‘one man and one woman’ and to reformulate the
    definition of marriage as the ‘the voluntary union for life of two persons to the exclusion of all
    others’.[12]

  6. The Commission, therefore, believes that the principle of equality as set
    out in article 26 of the ICCPR supports the recognition of same-sex
    marriage.

6 Are there any other
ways in which same-sex relationships may be formally recognised?

  1. The Commission acknowledges that some jurisdictions have preferred to
    recognise same-sex relationships through civil union schemes. Schemes such as
    these exist in Andora, Argentina, the United Kingdom, Croatia, the Czech
    Republic, Denmark, Finland, France, Germany, Greenland, Hungary, Iceland, Italy,
    Luxembourg, New Zealand, Mexico, Slovenia, Switzerland and
    Uruguay.[13] In some jurisdictions
    civil unions or relationship registration systems were introduced prior to the
    introduction of same-sex marriage, for example Norway and the Netherlands.

  2. However, the Commission believes that a civil union scheme alone would not
    provide same-sex couples with full equality.

  3. In the absence of a right to civil marriage for same-sex couples, a civil
    union scheme would continue to reinforce the different value placed on
    relationships between opposite-sex and same-sex couples (albeit that it would be
    a step in the right direction). The Commission also submits that any civil union
    scheme that exists should be open equally to both same-sex and opposite-sex
    couples.

  4. This is because the principle of equality, when applied to this
    circumstance, requires that any form of relationship recognition be equally
    available to same-sex couples.

7 Would allowing
same-sex marriage restrict any other human rights?

  1. It is important to note that supporting same-sex marriage need not, and does
    not, raise any conflict between the right to equality and the right to freedom
    of religion. Currently the Marriage Act does not require any religious minister
    to marry any person contrary to its religious tenets.

  2. The proposed amendments to the Marriage Act would provide same-sex couples
    with access to civil marriage
    only.[14] The Marriage Act need not
    require any religious institution to marry two people of the same sex if that is
    against the tenets of that institution. The South African Constitutional Court
    has directly addressed this issue in Fourie.[15] It has also been addressed in Canada by the British Columbia Court of
    Appeal.[16] There is nothing in the
    Canadian Civil Marriage Act 2005 (Can) that impairs the freedom of
    officials or religious groups to refuse to perform marriages not in accordance
    with their religious beliefs.

8 Conclusion

  1. The Commission submits that the fundamental human rights principle of
    equality means that civil marriage should be available, without discrimination,
    to all couples, regardless of sex, sexuality or gender identity. Consequently
    the Commission fully supports the amendments contained in the Bill under
    Inquiry, to remove all discrimination on these grounds.

  2. Recommendation 1: All forms of relationship recognition should be
    available to same-sex couples on an equal basis with opposite-sex couples. This
    includes civil marriage, which should be available to two people, regardless of
    their sex, sexuality or gender identity.

  3. Recommendation 2: Civil marriages between same-sex couples lawfully
    entered into in other jurisdictions should be recognised in Australia.


[1] See generally M Nowak, UN
Covenant on Civil and Political Rights: CCPR Commentary
(1993), 623-626.
Discrimination on the grounds of sexual orientation is also prohibited under art
2(2) of the ICESCR: ESCR Committee, General Comment 18, (2005), [12(b)(i)], in Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies
, UN Doc HRI/GEN/1/Rev.8 (2006),151. See also ESCR
Committee, General Comment 14, (2000), [18], in Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies
,
UN Doc HRI/GEN/1/Rev.8 (2006), 91. The Committee on the Rights of the Child has
also indicated that the Convention on the Rights of the Child (CRC)
prohibits discrimination on the grounds of sexual orientation: Committee on the
Rights of the Child, General Comment 3, (2003), [6], in Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies
, UN Doc HRI/GEN/1/Rev.8 (2006),
365.
[2] Concluding observations of
the UNHRC: El Salvador, CCPR/CO/78/SLV (2003), [16]; Concluding
observations of the UNHRC: Philippines, CCPR/CO/79/PHL (2003) at [18];
Concluding observations of the UNHRC: United Kingdom of Great Britain and
Northern Ireland (Hong Kong)
, CCPR/C/79/Add.57 (1995), [13]; Concluding
observations of the UNHRC: Poland, CCPR/C/79/Add.110 (1999),
[23].
[3] Neither case clarifies
whether the prohibited discrimination is on the basis of ‘other
status’. In Toonen the United Nations Human Rights Committee found
that the reference to ‘sex’ in Articles 2(1) and 26 of ICCPR is to
be taken to include ‘sexual orientation’. The Committee noted that
‘[t]he State party has sought the Committee's guidance as to whether
sexual orientation may be considered an ‘other status for the purposes of
article 26. The same issue could arise under article 2, paragraph 1, of the
Covenant’ but did not answer the Australia’s question and confined
itself to noting that ‘in its view the reference to "sex" in articles 2,
paragraph 1, and 26 is to be taken as including sexual orientation’. See Toonen v Australia, (488/1992) UN Doc. CCPR/C/50/D/488/92, [8.7]. In Young the Committee found that the Committee finds that Australia had
violated article 26 of the Covenant ‘by denying the author a pension on
the basis of his sex or sexual orientation’. Young v Australia, (941/2000) UN Doc. CCPR/C/78/D/941/2000, [10.4].
[4] (902/1999) UN Doc.
CCPR/C/75/D/902/1999.
[5] UN Doc.
CCPR/C/75/D/902/1999
[8.2]-[8.3].
[6] S Joseph
‘Human Rights Committee: Recent Cases’, (2003) 3(1) Human Rights
Law Review
91-103, 102. It is arguable that the right of men and women to
marry in article 23 should be interpreted in light of art 21, 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.
[7] CCT60/04;
CCT10/05.
[8] CCT60/04; CCT10/05
[99]-[105].
[9] CCT60/04; CCT10/05
[100].
[10] CCT60/04; CCT10/05
[102].
[11]Halpern v Canada
(A-G)
[2003] 65 OR (3d) 161 (CA); Barbeau v British Columbia (A-G) 2003 BCCA 251.
[12]Halpern v Canada,
[148].
[13] Australian Coalition
for Marriage Equality, http://www.australianmarriageequality.com/international.htm#Rest_of_World (viewed 4 September 2009).
[14] While the Commission recognises that there may be Constitutional limitations to
the Commonwealth’s power to legislate with respect to same-sex marriage, a
consideration of this issue is beyond the scope of this
submission.
[15] CCT60/04;
CCT10/05, [97].
[16]Barbeau
v British Columbia
(A-G) 2003 BCCA 251