2010-2011-2012-2013

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

THE SENATE

 

 

 

 

Marriage Act Amendment (Recognition of Foreign Marriages for Same-Sex Couples) Bill 2013

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of Senator Hanson-Young)

 

 

 

 

 

 

 

Marriage Act Amendment (Recognition of Foreign Marriages for Same-Sex Couples) Bill 2013

 

 

General outline

The Marriage Act Amendment (Recognition of Foreign Marriages for Same-Sex Couples) Bill 2013 amends the Marriage Act 1961 to ensure that marriages that are validly entered into in foreign countries can be recognised under the laws of Australia.

Financial impact

Nil

Notes on clauses

Clause 1 - Short title This clause provides for the Act, when enacted, to be cited as the Marriage Act Amendment (Recognition of Foreign Marriages for Same-Sex Couples) Act 2013 .

 

Clause 2 - Commencement

This clause provides for the commencement of the Act on the day on which it receives Royal Assent.

Clause 3 - Objects This clause states that the object of this Bill is to recognise under Australian laws same-sex marriages solemnised in a foreign country.

Clause 4 - Schedule This clause provides that the Marriage Act 1961 is amended as set out in Schedule 1 of the Bill.

 

Schedule 1—Same-sex marriages solemnised in a foreign country

 

Item 1 Section 88EA

This item repeals section 88EA that prohibits the recognition of marriage between same sex couples solemnised in a foreign country.

 

In the place of the repealed section it substitutes a new section which explicitly establishes that unions solemnised in a foreign country that are to be legally recognised as a marriage in Australia include unions between a man and another man, and a woman and another woman.

 

This item also substitutes a section which establishes that parties to a union that is a same-sex marriage solemnised in a foreign country will have the same rights and obligations under Commonwealth law as a marriage in Australia between a man and a women.

 

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Marriage Act Amendment (Recognition of Foreign Marriages for Same-Sex Couples) Bill 2013

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview

The Marriage Act Amendment (Recognition of Foreign Marriages for Same-Sex Couples) Bill 2013 amends the Marriage Act 1961 to ensure that marriages that are validly entered into in foreign countries can be recognised under the laws of Australia.

Human rights implications

This Bill does not negatively engage any of the applicable rights or freedoms.  This Bill positive engages with the following applicable rights or freedoms:

 

ICCPR Article 23

This Bill enhances the right of men and women of marriageable age by extending the right of legal recognition of a marriage entered into in a foreign country to all people regardless of whether they have married a same-sex or a different-sex partner.

ICCPR Article 26

This Bill enhances the right of gay and lesbian Australians to equal protection of the law. Currently the law recognitions international marriages of different-sex couples, but prohibits legal recognition of same-sex international marriages.  This Bill removes aspects of Australian marriage law that are discriminatory, and in doing so, enhances equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

ICECSR Article 12

This Bill enhances the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. It is the clear advice of Australia’s top psychological experts that, for same-sex couples who do wish to marry in Australia or in a foreign country, the continued discrimination against them in existing marriage laws is a source of great mental anguish and sometimes mental ill-health.

By removing the discrimination from Australia’s laws, this Bill reduces in part the overall discrimination and alienation suffered by gay and lesbian people which may give rise, in some people particularly young people, to an improvement in physical and mental health.

Conclusion

This Bill is compatible with human rights as it does not raise any negative human rights issues

 

Senator Hanson-Young