The Federal Government is proposing to plug any legal loopholes that would allow gay marriages in Australia, at the same time unveiling plans to amend the superannuation laws to the advantage of same-sex couples. What will the voters think? Francis Wilkins reports
The Howard Government late last week announced significant proposed changes to the Marriage Act 1961 that would prevent same-sex couples who marry overseas from having their union recognised in Australia. The move formalises the Government’s opposition, already clearly articulated, to gay marriage enjoying parity with heterosexual marriage. But it may also have sealed irrevocably the disapproval of electors whose vote will be determined significantly by the Government’s policies on same-sex relationships.
At the same time, the Prime Minister announced proposed changes to the Family Law Act 1975 that would prevent gay couples from adopting children from overseas. A further proposal would, however, broaden the definition of “dependent” to allow a person in a “financially interdependent” relationship — including same-sex relationships — to take advantage of superannuation death benefits on the death of the other person.
Legislation that would bring the proposals into effect has already been introduced into Parliament.
At present, neither the Marriage Act nor the Family Law Act includes a formal definition of the parties — that the union is between a man and a woman has only been assumed. A case some months ago involving a couple where one of the parties was a transsexual highlighted the legal complexities raised by this assumption. In particular, the court questioned whether the Marriage Act adequately reflects contemporary understanding of what constitutes a union — even if when the legislation was framed the assumption that a man and a woman were involved was a fair one.
The Government proposal, the Prime Minister said, would insert into the Marriage Act “the commonly accepted definition of a marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life”. This would prevent couples who marry in overseas jurisdictions that formalise same-sex unions, such as Canada and some states in the US, from having their marriages legally recognised in Australia.
“We’ve decided to insert this into the Marriage Act to make it very plain that that is our view of a marriage and to also make it very plain that the definition of a marriage should rest in the hands ultimately of the parliament of the nation and should not over time potentially be subject to redefinition or change by courts,” Howard told reporters last Friday 27 May. “It is something that ought to be expressed through the elected representatives of the country and that is what we have decided to do.”
In a poll of visitors to The Sydney Morning Herald’s website, a majority said they were not concerned about the “erosion of [the] marriage institution”, despite claims by Attorney-General Philip Ruddock that the Government’s proposals are a response to “community concern”. Of 3,308 visitors, 54 per cent said they were “not at all concerned” and 10 per cent were “not very concerned”, while only 25 per cent were “very concerned”, 6 per cent were “moderately concerned” and 2 per cent were “a little concerned”.
The Democrats’ Attorney-General and Justice spokesperson, Senator Brian Greig, has called for a Senate enquiry to study the results of banning civil marriage of same-sex couples as well as to explore the issues associated with same-sex parenting. Greig said a volatile pre-election environment was not the time or place in which to rush through legal changes that would have such a significant effect on many people’s lives. “The human rights of gay and lesbian people and their children should not be used as a cynical election wedge,” he said. “The Howard Government’s plans to block marriage rights for gay and lesbian couples wrongly sends the message that same-sex couples are not socially valid, significantly caring or worthy of legal protections. The proposed ban on overseas adoptions sends the message that gay and lesbian couples are not capable of offering a caring, stable family environment in which to raise children. This is absolutely appalling.”
The Government proposals also include amendments to the Family Law Act that would ensure same-sex couples “will not be eligible as prospective adoptive parents under any multilateral or bilateral agreement concerning the adoption of children to which Australia is a party,” the Prime Minister said.
Proposed changes to the superannuation laws would, however, allow same-sex partners to receive superannuation death benefits taxed at the dependent’s concessional rate rather than the existing 30 per cent rate for non-dependents. Howard was quick to distance the Government’s super proposal from those relating to gay marriage and adoption. “The amendments to the definition of dependents will not alter the definition of a spouse, it will not specifically recognise same-sex relationships,” he said. “The purpose of these superannuation amendments is to recognise that irrespective of the social and legal character of a relationship, there does need to be a broadening of the category of people who can receive superannuation benefits without the tax penalties that currently apply to that broader category of people.”
Nevertheless, how long before it is asked in Parliament whether the plan for super might not be designed to sweeten the pill of outlawing the recognition of same-sex marriages?