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Marriage Legislation Amendment Bill 2004

Legal Legal
Friday 14 December, 2012

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.