If you’re a regular reader of LGBTQ media, chances are you’ve recently heard of the Australian government’s ongoing struggles over same-sex marriage. Most recently, the island nation has decided to conduct a country-wide survey gauging citizens’ feeling about same-sex marriage, but the survey and its potential results are being challenged by a wide-range of political factions.
That’s why we’ve created this explainer to help untangle the history of gay marriage in Australia and the political factions behind it.
Right now, Australia does not offer marriage to gay people. Several Australian states recognize same-sex marriages conducted in other countries, but the nation’s federal government still recognizes the institution as only being between a man and a woman. The recent survey could change that, however, if it survives a court challenge.
Confused? Let’s walk though the history of gay marriage in Australia.
In Hyde vs Hyde and Woodmansee, a civil case about polygamy and adultery between a Mormon man and one of his former wives, the presiding judge Lord Penzance defined marriage as “the voluntary union for life of one man and one woman, to the exclusion of all others.” While this definition stuck in the country’s common law, it wasn’t the same as the legal definition of marriage created through federal legislation.
Despite the federal government not yet having a legal definition of marriage, a 1932 news article mentioned an increasing phenomenon of men marrying one another in Brisbane, the capitol city of Queensland, Australia. The article’s author implored the police to help stop the phenomenon.
In an attempt to create uniform marriage laws for all Australian states and territories, the 23rd Australian parliament passed The Marriage Act 1961, a bill legally defining marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”
2004 – 2009
Two Australian same-sex couples — lesbian couple Jacqui Tomlins and Sarah Nichols, and gay couple Jason and Adrian Tuazon-McCheyne — were married in Canada in 2003, shortly after that country legalized same-sex marriage. Both couples then lodged an application in Victorian Family Court to ascertain the validity of their marriages in the eyes of the Australian government.
In response, then-Australian Prime Minister John Howard introduced the Marriage Amendment Bill 2004, which defined marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life,” adding that other unions are not marriages and that same-sex marriages solemnized in other countries “must not” be recognized as marriages in Australia. The Parliament approved that bill on Aug. 16, 2004.
And yet in 2009, Australia began recognizing “de facto” marriages between a long-term cohabitating man and woman (also known as common law marriages), showing that “other unions” are in fact “marriages” in the eyes of the Australian government.
That same year, Green party Sen. Michael Organ introduced the Same Sex Relationships (Ensuring Equality) Bill of 2004 in an attempt to extend marriage to same-sex couples, but it died in Parliament.
In 2006, two Democratic senators introduced the Same-Sex Marriage Bill 2006, and in 2009, Green party Sen. Sarah Hanson Young introduced the Marriage Equality Amendment Bill 2009, the first marriage equality bill ever to be reviewed by a parliamentary committee.
In November 2009, the Legal and Constitutional Affairs Legislation Committee suggested the bill not be passed. Nevertheless, amid growing public protests in favor of same-sex marriage, the Senate voted on the bill on Feb. 25, 2010. It lost in a 45-to-5 vote with only Green Party senators supporting it and many other senators not even in attendance.
2010 to 2013
Then-Prime Minister Julia Gillard of the Labor Party made an election season promise that her administration would not try to pass a bill legalizing same-sex marriage. Despite her pledge, Labor Party members began speaking out against her position and, at the Labor Party’s December 2011 National Conference, the party “overwhelmingly endorsed” a party platform change to support marriage equality.
At the conference, Gillard allowed a non-binding free vote on same-sex marriage legislation, which passed 208 to 184.
In 2012, the Australian government held a Joint Parliamentary Inquiry into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012, and those bills became the most publicly commented upon in the nation’s history. Of the 276,437 responses, 177,663 favored legalizing same-sex marriage, 98,164 opposed it and 610 felt unsure.
In September of 2012, however, both the Australian Senate and the House of Representatives voted against the legislation. It failed to pass, in part, because of uniform opposition from the Liberal/National Coalition Party, who had pledged to oppose any such legislation during the 2010 elections.
That same year, Gillard’s Labor government announced that it would provide same-sex couples wishing to wed abroad “Certificates of No Impediment to Marriage,” a certificate sometimes required by other governments to confirm that individuals aren’t already married in another country. Australia used to deny these certificates to same-sex couples.
In March 2013, former Labor Prime Minister Kevin Rudd promised to introduce same-sex marriage legislation if his party won the 2013 federal elections. His party didn’t. The Liberal/National Coalition Party did, and continued to oppose same-sex marriage.
2013 – 2016
In September 2013, the case of Commonwealth v. Australian Capital Territory decided that the parliaments of Australian states and territories didn’t have the authority to legalize same-sex marriages in their regions.
In November 2014, Liberal Democratic Party Sen. David Leyonhjelm introduced the Freedom to Marry Bill 2014, but the Liberal/National Coalition declined to allow a free vote on it.
After Ireland legalized same-sex marriage in 2015, several Australian members of parliament — including members of the Liberal/National Coalition Party — began vocally supporting a free vote on marriage equality.
On June 1, 2015, Labor leader Bill Shorten introduced the Marriage Amendment (Marriage Equality) Bill 2015. Prime Minister Tony Abbott promised a parliamentary debate on same-sex marriage and, after a special joint party room meeting between the Liberal and National Parties, Abbott announced his “strong disposition” to hold a national plebiscite (a nationwide vote to gauge public feedback) or a constitutional referendum to let citizens vote directly on legalizing same-sex marriage after the 2016 federal election.
Critics called Abbott’s pledge a stalling tactic and a waste of money compared to the less complicated possibilities of just gauging public opinion through a poll or just passing same-sex marriage legislation in the parliament.
Since then, all attempts at same-sex marriage plebiscites and legislation has been held up by parliamentary committees of both the Australian Senate and House of Representatives, with the Labor and the Green Party generally favoring marriage equality and the Liberal/National Coalition Party generally opposing it.
In March 2016, Attorney General George Brandis (a member of the Liberal Party) said that the Liberal/National Coalition would allow a plebiscite in 2016 if the federal election restored the coalition to power. However, after the Liberal/National Coalition narrowly won the federal elections, several coalition members of parliament said that they would vote against same-sex marriage, even if a plebiscite found citizens in favor of it.
2016 – present
On Sept. 16, 2016, Prime Minister Turnbull introduced Plebiscite (Same-Sex Marriage) Bill 2016 into the Australian House. The plebiscite would ask Australian voters to write “yes” or “no” in response to the following question: “Should the law be changed to allow same-sex couples to marry?” While the bill passed the House, it didn’t pass the Senate.
As of December 2016, the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria all recognize same-sex marriages and civil partnerships performed overseas in their respective state registers.
On Aug. 9, 2017, a 31-to-31 tie vote in the the Australian Senate rejected a motion to discuss the plebiscite. Afterwards, Australia’s Finance Minister and Treasurer instructed the Australian Bureau of Statistics (ABS) to conduct a postal plebiscite. They’re calling it a “survey” of citizens’ feelings on same-sex marriage rather than a plebiscite. Australian citizens have until Aug. 24, 2017, to sign up to participate in the postal “survey.”
However, the heads of the Australian Parents and Friends of Lesbians and Gays (PFLAG) and Rainbow Families, two pro-LGBTQ groups, have announced their intention to challenge the legality of the postal survey, stating the government and the ABS may have overstepped their executive authority in conducting such a plebiscite without parliamentary approval.
The country’s High Court has agreed to hear the case on Sept. 4 and 5, 2017. Whether their lawsuit goes through or not, the results of the postal survey will still send a clear signal to the Parliament about the will of the Australian people — which could either affirm or deny the rights of LGBTQ Australians to marry whomever they love.
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