Same Sex Marriage Bill in NSW: Is it Marriage Equality?

Thursday 7 November 2013 @ 10.46 a.m. | Legal Research

In a legal contest that now appears set to continue at a state by state level, and in the courts as well, we appear to have reached a point where the whole matter of marriage equality needs to be looked at in the light of reason.

In this last few weeks we have seen Tasmania attempt its own legislation only to see it fail on the second attempt by the narrowest of margins.

Meanwhile the ACT has ventured forth thumbing its nose at Commonwealth warnings with its now enacted and commenced legislation (effective 7 November 2013) which has become the subject of a High Court contest.

Into this chain of events has come the latest variant of State based legislation the NSW Same Sex Marriage Bill 2013 which is yet another attempt to deal with the gay marriage issue at state level when it is really a matter of national importance requiring a national solution for a substantial group of citizens.

About the NSW Bill

The NSW Bill was introduced into the Legislative Council by Labor MP Penny Sharpe on 31 October 2013 and is currently at second reading stage. The object of the proposed law is stated as being "to allow for adults of the same sex to enter into a same-sex marriage". The NSW Bill is not that different to other state based attempts to find a way around federal marriage laws by defining a new type of marriage called a "same-sex marriage" which in the NSW Bill means . . . "the union of 2 people of the same sex, to the exclusion of all others, voluntarily entered into for life".  Effectively, the plot is to avoid invalidity by saying "its not a marriage its a same-sex marriage" and so is not invalidated by the federal constitution. However, it begs the question, is this bill providing "equality" if you are defining a same sex union as a different type of union to a heterosexual marriage?

Detailed Provisions of the NSW Bill

More specifically in Part 2 (clauses 4–18), the Bill sets out the requirements for same-sex marriages in particular providing that same-sex marriages are required to be solemnised by authorised celebrants as well as setting out the grounds of eligibility for same-sex marriages, the notices and declarations that must be given before same-sex marriages may be solemnised, the form and wording of same-sex marriage ceremonies, and requirements relating to witnesses and same-sex marriage certificates.

The grounds on which same-sex marriages are void are provided for in Bill clause 19, which include:

  • either of the parties was already same-sex married to another person,
  • either party subsequently marries another person under Commonwealth law (including a law recognised by the Commonwealth),
  • either of the parties was not an adult,
  • the consent of either of the parties was not real consent because of various circumstances,including duress, fraud, mistaken identity or mental incapacity.

Dissolution and annulment is dealt with in Part 4 (clauses 20–31) and provides for proceedings in such matters to be instituted in the Supreme Court by an application for a dissolution order in relation to a same-sex marriage based only on the ground that the same-sex marriage has broken down irretrievably (clause 21), the ground being established only if the Supreme Court is satisfied that the parties have separated and lived separately for a continuous period of at least 12 months. An application for a decree of nullity of a same-sex marriage must be based on the ground that the same-sex marriage is void (clause 24).

Issues arising from authorised celebrants are dealt with in Part 5 and recognition of interstate same-sex marriages is covered in Part 6 which provides among other matters for same-sex marriages under the laws of other States or Territories to be recognised for the purposes of the law of NSW. 

Reaction to the Bill

Already the press is reporting that the NSW Bill is unlikely to pass. This view being based on comments by the NSW Premier Barry O’Farrell who is quoted as saying that "although he personally believes in marriage equality, he will not be supporting the NSW Same-Sex Marriage Bill". The Premier is apparently moving closer to the beliefs of the current Commonwealth Government whose view is that it should have the ownership of marriage laws and is running this as its rationale for challenging the validity of the already enacted ACT laws.

Also an interesting and apt view on the NSW Bill and other State laws is posed in an SMH article by Waleed Aly, namely that:

"Really, you can call it what you like - a ''consolation marriage'' might be most honest - you've done nothing to change the legal definition of marriage. A legally rigorous man still couldn't turn to his boyfriend and ask: ''Will you marry me?'' It would have to be: ''Will you same-sex marry me?'' In that way, the NSW bill might offer same-sex marriage, but it's not offering marriage equality. It's a bit like republicans finally replacing the monarch with a system of hereditary, foreign-born presidents."

Perhaps the only way for real marriage equality to be achieved is to change the definition of  "marriage"  from the unequal position that confines it to a union only between a man and a woman in the Commonwealth Marriage Act to one that defines it as a union between consenting adults.

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