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Marriage Equality Amendment Bill 2010

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Marriage Equality Amendment Bill 2010

Australian Human Rights Commission Submission to the State Legal and Constitutional Affairs Legislation Committee

29 March 2012

Table of contents

1 Introduction

  1. The Australian Human Rights Commission makes this submission to the Senate
    Legal and Constitutional Legislation Affairs Legislation Committee Inquiry into
    the Marriage Equality Amendment Bill 2010.

  2. The Marriage Equality Amendment Bill 2010 (the Bill) was introduced in the
    Senate by Greens Senator Sarah Hanson-Young, and was referred to the Committee
    on 8 February 2012 for consideration and report. The Bill seeks to amend the Marriage Act 1961 (Cth) (Marriage Act) to remove discriminatory
    references based on sexual orientation and gender identity, and allow marriage
    regardless of sex, sexual orientation or gender identity.

  3. This submission is based largely on a previous submission made by the
    Commission to the Senate Standing Committee on Legal and Constitutional Affairs
    Inquiry into the Marriage Equality Amendment Bill 2009.

  4. The Commission has also made a submission to the current Inquiry into the
    Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012
    conducted by the House of Representatives Standing Committee on Social Policy
    and Legal Affairs Committee, containing the same recommendations as this
    submission.

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, as provided for in the Bill
    before the Inquiry.

  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. The 2008 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. In 2008, the Commission 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. The Commission also welcomes the Australian Government’s commitment to
    including protection from discrimination on the basis of sexual orientation and
    gender identity in federal law, as part of its project to consolidate federal
    anti-discrimination legislation.[1]

  3. However, the Commission believes that 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.

  4. 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.

  5. The Commission also 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’.[2] 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.[3]

  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.[4]

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)[5], 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.[6] 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’.[7]

  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 nations on the grounds of
equality

  1. There is an increasing international trend towards the recognition of
    same-sex marriage. The countries now fully recognizing same-sex marriage include
    Argentina, Belgium, Canada, Iceland, Mexico, the Netherlands, Norway, Portugal,
    South Africa, Spain, Sweden, and several states in the
    USA.[8]

  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’.[9] 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)[10], the South
    African Constitutional Court declined to follow the approach of the Human Rights
    Committee.[11] 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’[12] before observing
    ‘rights, by their nature, will atrophy if they are
    frozen’.[13]

  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.[14] 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’.[15]

  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, Croatia, the Czech Republic, Denmark, Finland, France,
    Germany, Greenland, Hungary, Italy, Luxembourg, New Zealand, Slovenia,
    Switzerland, the United Kingdom and
    Uruguay.[16] 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. In Australia, the current approach to formal recognition of same-sex couples
    varies between state and territory jurisdictions. Queensland, Tasmania and the
    ACT have civil union schemes through which couples may have an official
    ceremony. These three jurisdictions also provide mechanisms for recognising
    civil unions entered into in other states and other
    countries.[17] New South Wales has
    a relationship registration scheme which recognises civil unions entered into in
    other states.[18] However, there is
    no allowance for an official ceremony. Victoria also has a relationship
    registration scheme, although it does not recognise civil unions entered into in
    other states, and does not allow for an official
    ceremony.[19] In South Australia,
    the Northern Territory and Western Australia, same-sex couples can only be
    recognised as a de-facto partnership – these jurisdictions do not, as yet,
    have civil union or relationship registration
    schemes.[20]

  3. This inconsistency in the recognition of same-sex relationships in the
    states and territories reinforces the need for federal legislative changes.

  4. The Commission does not believe that a civil union scheme alone –
    either in each of the states or territories, or at the federal level –
    would provide same-sex couples with full equality. 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.

  5. However, should a civil union scheme be established in any jurisdiction, it
    should be open to both same-sex and opposite-sex couples. This is because the
    principle of equality 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, and the amendments in the
    Bill would not affect this position.

  2. The proposed amendments to the Marriage Act would provide same-sex couples
    with access to civil marriage
    only.[21] 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.[22] It has also been
    addressed in Canada by the British Columbia Court of
    Appeal.[23] 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 believes 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, for example,
Australia’s appearance before the UN Human Rights Council: Human Rights
Council, Draft report of the Working Group on the Universal Periodic
Review: Australia,10th session (2011), Geneva, A/HRC/WG.6/10/L.8,
pp 6-7. At: http://www.ohchr.org/EN/HRBodies/UPR/PAGES/AUSession10.aspx.

[2] 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.

[3] 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].

[4] 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].

[5] (902/1999) UN Doc.
CCPR/C/75/D/902/1999.

[6] UN Doc.
CCPR/C/75/D/902/1999
[8.2]-[8.3].

[7] On the right to
marry, a recent case in the European Court of Human Rights found that Austria
did not breach Article 12 of the European Convention of Human Rights (the right
to marry) by not allowing a same-sex couple to marry: Schalk and Kopf v.
Austria [2010] ECHR 30141/04.

[8] States in the USA which
recognise same-sex marriage include: Connecticut

Iowa, Massachusetts, New
Hampshire, Vermont, New York, Washington D.C.
http://www.australianmarriageequality.com/international.htm#United_Stat…

[9] 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 article 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.

[10] CCT60/04;
CCT10/05.

[11] CCT60/04; CCT10/05
[99]-[105].

[12] CCT60/04;
CCT10/05 [100].

[13] CCT60/04;
CCT10/05 [102].

[14] Halpern v
Canada (A-G) [2003] 65 OR (3d) 161 (CA); Barbeau v British Columbia (A-G) 2003 BCCA 251.

[15] Halpern v Canada,
[148].

[16] See Australian
Marriage Equality, http://www.australianmarriageequality.com/international.htm#Rest_of_World (viewed 2 March 2012).

[17] Clause 4, Civil Partnerships Regulation 2012 (Qld); Section 65A,
Relationships Act 2003 (Tas); Clause 4, Civil Partnerships Regulation
2010 (ACT).

[18] Clause 4, Relationships Register Regulation 2010 (NSW).

[19] Relationships Act
2008 (Vic). The Melbourne and Yarra City Council also have relationships
registers which do not confer legal rights, but allow couples to make a
declaration that they are mutually committed to sharing their lives
together.

[20] See Australian
Marriage Equality, http://www.australianmarriageequality.com/wp/ (viewed 2 March 2012).

[21] 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.

[22] CCT60/04;
CCT10/05, [97].

[23] Barbeau
v British Columbia (A-G) 2003 BCCA 251