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Same-Sex Marriage Law in New South Wales

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Same-Sex Marriage Law in New South Wales LEGISLATIVE COUNCIL Standing Committee on Social Issues Same-sex marriage law in New South Wales Ordered to be printed 26 July 2013 according to Standing Order 231. Report 47 - July 2013 i LEGISLATIVE COUNCIL Same-sex marriage law in New South Wales New South Wales Parliamentary Library cataloguing-in-publication data: New South Wales. Parliament. Legislative Council. Standing Committee on Social Issues. Same sex marriage law in New South Wales / Standing Committee on Social Issues. [Sydney, N.S.W.]: the Committee, 2013. – xviii, 164 p. ; 30 cm. (Report ; no. 47) Chair: Hon. Niall Blair MLC. “July 2013”. ISBN: 9781921286926 1. Same-sex marriage—Law and legislation—New South Wales. 2. Civil unions—Law and legislation—New South Wales. 3. Gay couples—Legal status, laws, etc.—New South Wales. I. Title. II. Blair, Niall. III. Series: New South Wales. Parliament. Legislative Council. Standing Committee on Social Issues. Report ; no. 47. 354.944 (DDC22) ii Report 47 - July 2013 STANDING COMMITTEE ON SOCIAL ISSUES How to contact the Committee Members of the Standing Committee on Social Issues can be contacted through the Committee Secretariat. Written correspondence and enquiries should be directed to: The Director Standing Committee on Social Issues Legislative Council Parliament House, Macquarie Street Sydney New South Wales 2000 Internet www.parliament.nsw.gov.au/socialissues Email [email protected] Telephone 02 9230 2798 Facsimile 02 9230 2981 Report 47 - July 2013 iii LEGISLATIVE COUNCIL Same-sex marriage law in New South Wales Terms of reference 1. Any legal issues surrounding the passing of marriage laws at a State level, including but not limited to: a. the impact of interaction of such law with the Commonwealth Marriage Act 1961 b. the rights of any party married under such a law in other States’ and Federal jurisdiction c. the rights of the parties married under such a law upon dissolution of the marriage; 2. The response of other jurisdictions both in Australia and overseas to demands for marriage equality; 3. Any alternative models of legislation including civil unions; and 4. Changes in social attitudes (if any) to marriage in Australia. 5. That the Committee report by Friday 26 July 2013.1 These terms of reference were referred to the Committee by the Premier of New South Wales, the Hon Barry O’Farrell MP, and were adopted by the Committee on 6 December 2012. 1 LC Minutes (19/02/2012) 123, Item 33, p 1458. iv Report 47 - July 2013 STANDING COMMITTEE ON SOCIAL ISSUES Committee membership The Hon Niall Blair MLC The Nationals Chair The Hon Helen Westwood MLC Australian Labor Party Deputy Chair The Hon Catherine Cusack MLC Liberal Party The Hon Greg Donnelly MLC Australian Labor Party The Hon Jan Barham MLC The Greens The Hon Natasha Maclaren‐Jones MLC Liberal Party Committee Secretariat Mr Stewart Smith, Director Ms Miriam Cullen, Principal Council Officer Ms Christine Nguyen, Council Officer Report 47 - July 2013 v LEGISLATIVE COUNCIL Same-sex marriage law in New South Wales vi Report 47 - July 2013 STANDING COMMITTEE ON SOCIAL ISSUES Table of contents Chair’s foreword xi Executive summary xii Finding xvii Chapter 1 Introduction 1 Conduct of the Inquiry 1 Submissions 1 Public hearings 2 Structure of the Report 2 Chapter 2 Regulation of same-sex relationships in other jurisdictions 3 Other Australian Jurisdictions 3 Commonwealth 3 The Australian Capital Territory 5 The Northern Territory 6 Queensland 6 South Australia 7 Tasmania 7 Victoria 8 Western Australia 8 Overseas approaches 8 New Zealand 10 Canada 11 The United States of America 12 United Kingdom 13 Chapter 3 Relationship recognition in New South Wales law 15 New South Wales law recognising same-sex relationships 15 De facto status 15 Relationship registration 16 The dissolution of same-sex relationships 16 Stakeholder views on existing legal arrangements for same-sex relationships 17 Civil unions as an alternative to same-sex marriage 19 Stakeholder views on civil unions as an alternative to marriage 20 Committee comment 25 Chapter 4 Social attitudes to marriage 27 What ‘marriage’ means to people in New South Wales 27 Have social perceptions about marriage changed? 28 Report 47 - July 2013 vii LEGISLATIVE COUNCIL Same-sex marriage law in New South Wales Religion and marriage 32 Biology and procreation 33 Historical significance of marriage 35 Love 36 Potential harm caused by same-sex marriage to other couples and society 37 The role of the Parliament in legislating 39 Social attitudes and health 40 Committee comment 42 Chapter 5 Individual legal rights and marriage 43 Equality and non-discrimination 43 The law 43 Equality and non-discrimination and the status quo 44 The distinction between marriage as a civil and religious institution 46 Discrimination against objectors to same-sex marriage 48 The right to religious freedom 49 The right to marry 51 Committee comment 52 Chapter 6 Can New South Wales legislate for same-sex marriage and would the law be valid? 53 History of marriage in Australia 53 The Commonwealth Marriage Act 1961 53 Can New South Wales pass legislation about marriage? 55 The State’s power to legislate for marriage 55 Would a New South Wales same-sex marriage law be constitutionally operative? 56 Indirect inconsistency: Does the Marriage Act ‘cover the field’ of marriage in Australia? 57 Is the Marriage Act a complete statement of the law of marriage in Australia? 60 Direct inconsistency and the use of the word ‘marriage’ in a law for same-sex marriage 63 Constitutional matters related to the content of a state same-sex marriage bill 65 The Commonwealth ban on recognising same-sex marriages solemnised overseas 66 The enactment of a New South Wales same-sex marriage law 66 The prospect of a High Court challenge and the enactment of law 66 A High Court challenge: who has standing and how might it come about? 68 The impact of a High Court finding of inconsistency 70 Committee comment 71 viii Report 47 - July 2013 STANDING COMMITTEE ON SOCIAL ISSUES Chapter 7 The operation and content of a New South Wales same-sex marriage law 73 Would a same-sex marriage be recognised in other Australian States and Territories? 73 Choice of law and rules of private international law 73 The obligation to give full faith and credit to laws of other States 75 Cross-vesting legislation as a mechanism for interstate recognition 76 Where and to whom would a same-sex marriage law apply? 77 Residency in New South Wales 78 Transgender and intersex people 80 How would the law deal with the breakdown of a same-sex marriage? 81 Would the breakdown of a same-sex marriage be governed by Commonwealth law? 82 Can marriage ‘equality’ be achieved through State law? 87 Committee comment 88 Appendix 1 Submissions 91 Appendix 2 Witnesses at hearings 128 Appendix 3 Tabled documents 129 Appendix 4 Answers to questions on notice 130 Appendix 5 Minutes 131 Appendix 6 Dissenting statements 161 Report 47 - July 2013 ix LEGISLATIVE COUNCIL Same-sex marriage law in New South Wales Tables Table 1 Overseas jurisdictions where same sex marriage has been made lawful as at 22 July 2013 9 x Report 47 - July 2013 STANDING COMMITTEE ON SOCIAL ISSUES Chair’s foreword I am pleased to present the Report of the Standing Committee on Social Issues Inquiry into Same-Sex Marriage Law in New South Wales. This Inquiry has generated a public response greater than any other previously received by a committee of the Legislative Council. That response was characterised by moral and belief-based opinions about sexual orientation and the fundamental meaning of marriage. This Report does not pass judgment on the merits of same-sex marriage. It aims instead to inform public debate by providing a platform for the contrasting voices in our community coupled with a measured account of the legal issues to which a possible New South Wales same-sex marriage law gives rise. It became apparent over the course of the Inquiry that the legal issues associated with such a law have been widely misunderstood in some key respects. This Report seeks to clarify the law, including in particular the question as to whether New South Wales can legislate on the topic of same-sex marriage; there is no doubt that it can. The broader and more vexed question is of course whether it should. Ultimately that question is one to be answered by the elected representatives of the people of New South Wales and it is my sincere hope that this Report helps to inform that debate. I would like to thank the many contributors to this Inquiry, including my colleagues on the Committee. I convey my particular gratitude to the legal academics for sharing their expertise and briefing the Committee on complex areas of constitutional and family law. Finally, I express my heartfelt thanks to those members of the New South Wales community who wrote and tendered submissions, especially the large number of people participating in a committee inquiry for the first time. I respect that for many participants this Inquiry is not just about a law or a social institution but about matters that are inherently personal. I commend this Report to the Government. The Hon Niall Blair MLC Committee Chair Report 47 - July 2013 xi LEGISLATIVE COUNCIL Same-sex marriage law in New South Wales Executive summary This Inquiry considered a range of issues associated with a possible New South Wales law for same-sex marriage. The Inquiry generated substantial public interest with a record number of submissions received for a Committee of the New South Wales Legislative Council. Much of the evidence focused on the merits of the case for same-sex marriage rather than the operation of the law itself.
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