Immigration Advice & Rights Centre Inc.

By Chris Yuen

Principal Solicitor, Refugee Advice & Casework Service

(Former Principal Solicitor at IARC)

Under the migration law, unequal treatment for de facto partners continue to have an adverse impact on them, whether they are of the same gender or not, despite the fact that changes were made to the definitions of de facto relationship on 1 July 2009.  Unless people are allowed to marry regardless of their respective gender, this unequal treatment will continue to disadvantage those who, while legally allowed to be in a de facto relationship, are not allowed to marry each other even if they wish to.

On 3rd May 2012 the Senate invited various groups to give evidence and present their arguments in relation to the enquiries into the proposed amendments to the Marriage Act allowing same sex marriage.  One of the concerns that two particular Senators raised was whether the rights based or equity and equality based argument in support of the amendment Bill would lead to the same argument being pursued by those who are in a polygamous relationship.[1] 

The former High Court Justice Mr Michael Kirby responded to this line of questioning from a pragmatic perspective that, Australia should deal with the long overdue reform first and take one step at a time. He also suggested that there was no evidence showing that this “slippery slope” argument is warranted for lack of evidence in other countries.

A community group called Australian Marriage Equality appeared before the Senate and responded from the perspective that sexual orientation is an immutable characteristic of a person akin to other bases upon which the universality of basic human rights depend.

The Law Council of Australia responded by resorting to the terms of reference of the current inquiry as well as insisting on its stance that marriage is about 2 people.

If the proponents have been seen as if they were faltering in responding to the relevant questions put by Senator Humphries and Senator Cash, it might well be because they did not understand what the Senators did not understand.

With due respect, the premise that a rights based argument for same sex marriage would legitimize minority groups to argue for the same right to enter into a married relationship between more than 2 people is misguided at best.

On a practical level, this “slippery slope” argument was premised on an assumption that a polygamous relationship is entered into by all parties. Quite apart from the possibility that one of the parties in a prior marriage might have tacitly agreed to (often simply not opposed to) the spouse’s subsequent polygamous marriage, commitments of this kind are unlikely to be ones that involve all parties.  Under the current reform proposal, the basis of the rights argument is founded upon two committed adults’ quest to have the same right to enter into a marriage to the exclusion of all others, regardless of their respective gender.  Therefore arguments for people in polyamorous (as opposed to polygamous) need not be dealt with in the current debate. 

From an Australian legal perspective, an analogy made with polygamous or polyamorous relationship is as sound as suggesting equal rights for uncontrolled marijuana use or some other otherwise unlawful acts. Whatever justification one may promote in decriminalizing polygamy or uncontrolled use of marijuana, they belong to distinctly separate debates and until they become lawful pursuits in Australia such analogy is totally out of place.   This is to contrast with the lawful formation of a domestic relationship between two consenting adults. In fact, the recognition of this domestic relationship between two consenting adults under the law is not absolute as it does not allow relationships of an incestuous kind (For example, under s5CB(2)(d) of the Migration Act, a relationship is incapable of being a de facto relationship if the partners are related by family as defined in s5CB(4). This preclusion ensures consistency with the implicit requirements of s5F of the Act for a married (de jure) relationship. (The implicit  provisions in s5F of the Act regarding prohibited relationships apply by  cross-reference to relevant provisions of the Marriage Act.)[2]

Importantly, the current law reform proposal is about giving equal rights to two people to have the option of marrying each other regardless of their respective gender. I will refer to as Gender whether natural, assigned, reassigned, adopted or perceived.  It would seem apparent that the current reform proposals are not about promoting same sex marriage or the value of marriage but rather it gives two committed consenting adults the right to enter into a legal institution which they would otherwise be denied simply because of their respective Gender. 

While discrimination against Gender has not been specifically enshrined in the International Covenant on Civil and Political Rights (ICCPR) it has been widely accepted that Article 2(1) and 26 of the ICCPR were to be interpreted to apply to people of all sexual orientation, sex and/or gender.[3]

The practical effect of allowing same sex marriage is incidental to this rights based argument. The emphasis in relation to sexuality or sexual orientation as the rights based argument because of a person's immutable sexuality or sexual orientation may have been overstated. The rights based argument is not that much about what sexuality or sexual orientation the respective couples are. It is about the right to choose, if a couple so wishes, to enter into a marriage regardless of their Gender. A domestic relationship may have its sexual undertone but it need not necessarily be so.  Australian law has long recognized a committed exclusive relationship between two consenting adults which does not necessarily have the sexual component.[4]  By extension, the same right should be afforded to two asexual people who wish to enter into a marriage regardless of their respective Gender. 

The short version of the right, equity and equality based argument for the amendment bills is to allow two people to marry regardless of their Gender.  A better version should be something like this: Allowing two consenting adults regardless of their respective Gender, whose domestic partnership will or has been legally recognised, the option to choose to enter into a married relationship and be subject themselves to the legal confines of a married relationship and to enjoy the protection and privilege a married relationship entails. Only if the right based argument be understood in a way discussed above, all the seemingly comparable analogy in arguing for polygamous or polyamorous relationships, incestuous relationship, beastiality, pedophilia will all but evaporate.

If one dispenses with the arguments based on an outdated definitional issue of what a marriage meant and the arguments based on religious fundamentalism, the public should have a better opportunity to see what the real issues are.