The Same-Sex Marriage Debate in Australia

Abstract

This paper examines the issue of same-sex marriage in Australia, from both legal and social perspectives. First, it places the marriage debate in its Australian context, noting the ways in which same-sex relationships have been recognised in Australia other than through marriage. Second, it assesses some of the legal constraints on recognition of same-sex marriage, in particular the current statutory definition and the allocation of power over marriage to the federal Parliament in Australia's federal system. Third, it examines the social and political debate about same-sex marriage in Australia. Finally, the paper considers whether same-sex marriage in Australia is something worth fighting for.

Acknowledgements

This paper was completed while the Author was Visiting Fellow at the Gilbert and Tobin Centre of Public Law at the University of New South Wales. I wish to acknowledge the research assistance of Jennifer Anderson on an earlier version of this paper, the comments of Justice Michael Kirby on a draft version, and the continued support of Miranda Stewart in all my endeavours.

Notes

1. The focus of this paper is on same-sex marriage, and not on transgender or inter-sex marriage which raise different legal and political issues and are beyond the scope of this paper.

2. Jenni Millbank and Kathy Sant, ‘The Bride in Her Everyday Clothes’, Sydney Law Review, Vol.22 (1999), pp.181–219; Equal Opportunity Commission of Victoria, Discussion Paper on Same-Sex Relationships and the Law (Melbourne: Equal Opportunity Commission of Victoria 1997), p.5; Cynthia Banham, ‘A Lot More Than a Piece of Paper’, Sydney Morning Herald (Sydney), 5 June 2004.

3. Jenni Millbank and Wayne Morgan, ‘Let Them Eat Cake and Ice Cream: Wanting Something More from the Relationship Recognition Menu’, in Robert Wintemute and Mads Andenaes (eds), Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law (London: Hart 2001), p.296.

4. See, e.g., Kristen Walker, ‘UN Human Rights Law and Same-Sex Relationships: Where to from Here?’, in Wintemute and Andenaes (note 3) p.743; Nancy D. Polikoff, ‘We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage will not “Dismantle the Legal Structure of Gender in Every Marriage”‘, Virginia Law Review, Vol.79 (1993), p.1535–50; Paula L. Ettelbrick, ‘Since When is Marriage a Path to Liberation?’, in Suzanne Sherman (ed.), Lesbian and Gay Marriage: Private Commitments, Public Ceremonies (Philadelphia: Temple University Press 1992), p.20; Janet E. Halley, ‘Recognition, Rights, Regulation, Normalisation: Rhetorics of Justification in the Same-Sex Marriage Debate’, in Wintemute and Andenaes (note 3) p.97; Davina Cooper, ‘Like Counting Stars? Re-Structuring Equality and the Socio-Legal Space of Same-Sex Marriage’, in Wintemute and Andenaes (note 3) p.75.

5. See below.

6. Barbeau v. Attorney-General (British Columbia) [2003] BCCA 251; Henricks v. Quebec (Attorney-General) [2002] JQ 3816; Halpern v. Canada (Attorney-General) (Ontario Court of Appeal), http://www.ontariocourts.on.ca/decisions/2003/june/halpernC39172.htm (accessed 6 February 2007). Unlike the orders in the first two cases, which were suspended in operation for two years, the orders of the Court in Halpern took immediate effect and since then many same-sex couples have married. The Ontario government announced that it would not appeal the decision. Two non-party religious organisations attempted to appeal the case to the Supreme Court of Canada, but their application was rejected by the Court. Since these decisions, the Supreme Court of Canada decided that the Canadian federal Parliament had constitutional power to provide for same-sex marriage: see Reference re Same-Sex Marriage [2004] 3 SCR 698, and in 2005 the Canadian Parliament legislated for national recognition of same-sex marriage: Civil Marriage Act 2005 (Can).

7. Victorian Gay and Lesbian Rights Lobby, Not Yet Equal: Report of the VGLRL Same-Sex Relationships Survey 2005 (Melbourne: Victorian Gay and Lesbian Rights Lobby 2005), p.40, http://www.vglrl.org.au/files/VGLRL%202005%20-%20SSRS%20Report.pdf (accessed 6 February 2007).

8. See http://www.australianmarriageequality.com/ (accessed 6 February 2007).

9. See Kees Waaldijk, ‘Others May Follow: The Introduction of Marriage, Quasi-Marriage, and Semi-Marriage for Same-Sex Couples in European Countries’, New England Law Review, Vol.38 (2004), p.569.

10. Jacqueline Tomlins, ‘When I Do Becomes I Don't’, The Age (Melbourne), 3 September 2004; Farah Farouque, ‘Gay “Husbands” to Test their Marriage in Court’, The Age (Melbourne), 4 February 2004.

11. Marriage Amendment Act 2004 (Cth).

12. See, e.g., Property (Relationships) Act 1984 (NSW); Property Law Act 1974 (Qld); Family Relationships Act 1975 (SA)(limited recognition only); De Facto Relationships Act 1996 (SA); Family Court Act 1997 (WA); De Facto Relationships Act 1999 (Tas)(now replaced by the Domestic Relationships Act 2003 (Tas); Domestic Relationships Act 1994 (ACT); De Facto Relationships Act 1991 (NT). For an extensive discussion of the New South Wales regime, see Reg Graycar and Jenni Millbank, ‘The Bride Wore Pink … To the Property (Relationship) Legislation Act 1999: Relationship Law Reform in New South Wales’, Canadian Journal of Family Law, Vol.17 (2000), p.227.

13. In particular, a cohabitation period is required for certain areas of law, such as division of property and inheritance.

14. In most Commonwealth legislation, both married and de facto different-sex relationships are recognised. See, e.g., Social Security Act 1991 (Cth), s.4; Superannuation Act 1976 (Cth), s.8A; Income Tax Assessment Act 1936 (Cth), s.6 (definition of ‘spouse’).

15. Bills have been introduced into the South Australian Parliament for the recognition of same-sex relationships, but have not yet passed: see, e.g., Statutes Amendment (Relationship) Bill 2004 (SA) and the report thereon by the Social Development Committee of the South Australian Parliament, http://www.parliament.sa.gov.au/committees/lccdocuments/SD/public_documents/Tabled%20Reports/21st%20Report%20Statutes%20Amendments%20(Relationships)%20Bill%202004.pdf (accessed 6 February 2007).

16. Domestic Relationships Act 1994 (ACT).

17. Domestic Relationships Act 2003 (Tas).

18. The precise rights granted vary from state to state or territory, and in some states and territories rights in certain areas of law such as adoption and access to assisted reproductive services remain unavailable to same-sex couples. Adoption, for example, is only open to different-sex couples and single persons in New South Wales and Victoria.

19. For a general discussion of federal discrimination against same-sex couples, see Jenni Millbank, ‘If Australian Law Opened its Eyes to Lesbian and Gay Families, What would it See?’, Australian Journal of Family Law, Vol.12 (1998), pp.99–139; Millbank and Morgan (note 3); New South Wales Gay and Lesbian Rights Lobby, Fact Sheet: Federal Discrimination, http://www.glrl.org.au/publications/fact_sheets/Federal_discrimination.html (accessed 6 February 2007). Although federal superannuation law was recently amended to give some recognition to same-sex couples, through the recognition of ‘interdependent relationships’, full equality has not yet been achieved in this area: Miranda Stewart and Michael Flynn, Death and Taxes: Tax Effective Estate Planning (Melbourne: Thomson 2004), p.87.

20. Section 46 of the Marriage Act 1961 (Cth) requires that a marriage celebrant explain the nature of marriage with words that include ‘marriage according to the law of Australia, is the union of a man and a woman to the exclusion of all others voluntarily entered into for life … or words to that effect’. Further, at the time when the Act was enacted, there was no discussion of same-sex marriage and it is implausible to argue that the legislators had in mind anything other than ‘traditional’ marriage.

21. Section 88A states that ‘[t]he object of this Part is to give effect to Chapter II of the Convention on Celebration and Recognition of the Validity of Marriages signed at The Hague on 14 March 1978’.

22. See Peter Nygh, ‘The Consequences for Australia of the New Netherlands Law Permitting Same Gender Marriages’, Australian Journal of Family Law, Vol.16 (2002), pp.139–45.

23. A. Malmstrom, Explanatory Report on the Hague Marriage Convention (1978), cited in Nygh (note 22) p.142.

24. Nygh (note 22) p.142.

25. See Jennifer Norberry, ‘Marriage Legislation Amendment Bill 2004’, Commonwealth Parliamentary Library Bills Digest No. 155 2003–2004; Nygh (note 22).

26. See Commonwealth of Australia, Parliamentary Debates, House of Representatives, Official Hansard, No 11, Thursday 24 June 2004, p.31460.

27. Constitution, s.109.

28. I note that if some or all of the states and territories were to refer power over same-sex marriage to the Commonwealth pursuant to section 51(xxxviii) of the Constitution then the debate over the Commonwealth's power would become moot. However, such a reference seems unlikely at present. Thus, this possibility will not be discussed in detail.

29. (1886) 1 LR P & D 130, 133.

30. (1991) 174 CLR 379, 392.

31. (1908) 6 CLR 469, 610.

32. (1999) 198 CLR 511, 553.

33. It has been observed many times by the High Court of Australia that ‘it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve. For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should … always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose’: Jumbunna Coal Mine v. Victorian Coal Miners' Association (1908) 6 CLR 309, 367; cited, e.g., in Bank of New South Wales v. Commonwealth Bank (1948) 76 CLR 1, 332; Re Patterson, ex parte Taylor (2001) 182 ALR 657, 678.

34. Sometimes non-originalism is referred to as ‘progressivism’, however it has been suggested that this term involves a value judgment about the interpretive approach; a claiming of the moral high ground perhaps. Thus I use the term non-originalism.

35. See, e.g., Jeffrey Goldsworthy, ‘Interpreting the Constitution in its Second Century’ Melbourne University Law Review, Vol.24 (2000), pp.677–710; Dan Meagher, ‘“The Times are they a-changin”? – Can the Commonwealth Parliament Legislate for Same-Sex Marriages?’, Australian Journal of Family Law, Vol.17 (2003), pp.134–54.

36. Jeremy Kirk, ‘Constitutional Interpretation and a Theory of Evolutionary Originalism’, Federal Law Review, Vol.27 (1999), pp.323–66, part 1.1; Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’, Federal Law Review, Vol.25 (1997), pp.1–50.

37. Michael Kirby, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?’, Melbourne University Law Review, Vol.24 (2000), pp.1–14; Goldsworthy (note 35) p.78. There has been sufficient disagreement amongst theorists for the term ‘originalism’ now to embrace a number of different approaches (see for example the difference between Goldsworthy (note 35); Kirk (note 35); Greg Craven, ‘Heresy as Orthodoxy: Were the Founders Progressivists?’, Federal Law Review, Vol.31 (2003), pp.87–129; and Mirko Bagaric, ‘Originalism: Why Some Things should Never Change – Or at Least not Too Quickly’, University of Tasmania Law Review, Vol.19 (2002), pp.173–204). For the purposes of the present argument, I will not distinguish between the variants of originalism. The resulting analysis is therefore somewhat superficial, but the resolution of this debate is not the focus of this paper.

38. Of course, one may note that no one is an absolute originalist or an absolute non-originalist. All theories of interpretation in play in Australia offer some scope for ‘updating’ the Constitution to suit the needs of the present. There seem to be few judges or commentators who would doubt, for example, the Commonwealth's power to provide for an airforce or the issue of plastic money, notwithstanding the text of sections 51(6) (‘naval and military defence’) and 51(xxii) (‘the issue of paper money’) respectively. The label ‘originalist’ is therefore not to be read in an absolute sense as indicating that no departure from the meaning of 1900 or the intentions of the framers is permitted. Rather, as Craven has pointed out, there is really a continuum of non-originalism, with originalists permitting less updating of the Constitution and placing greater emphasis on the intentions of the framers than non-originalists: Greg Craven, ‘Original Intent and the Australian Constitution: Coming Soon to a Court Near You’, Public Law Review, Vol.1 (1990), pp.166–85). Similarly, there is no one who is completely non-originalist, either. We all start with the constitutional text as the basis for the rules that enable and constrain the Commonwealth Parliament in the exercise of its legislative power. The words of section 51 were, of course, chosen by the framers of the Constitution, not by present-day Australians. And those words convey to us some meaning. Thus, in the context of the term ‘marriage’, it clearly includes the intimate union of one man and one woman; no one is likely to dispute that. It, also, equally clearly excludes fish. That is, Parliament cannot deem fish to be marriage and thus gain legislative power over fish; likewise, Parliament cannot deem commercial partnership to be marriage and thus gain power over commercial partnership which it does not otherwise have under the Constitution. Even the staunchest ‘non-originalist’ is an originalist in accepting that the words chosen by the framers to delimit the Commonwealth Parliament's power should be given some effect and enforced by the courts. Debates about interpretation thus occur in the intermediate ground, where plausible arguments may be made on each side of the debate.

39. Bagaric (note 37) p.190.

40. See, e.g., Dan Meagher, ‘Guided By Voices? – Constitutional Interpretation on the Gleeson Court’, Deakin Law Review, Vol.7 (2002), pp.261–93; Anthony Mason, ‘Constitutional Interpretation: Some Thoughts’, Adelaide Law Review, Vol.20 (1998), pp.49–55; Re Wakim, ex parte McNally (1999) 198 CLR 511, 551–2 (McHugh J.); Goldsworthy (note 35); Kirby (note 37).

41. Goldsworthy (note 35) p.678. Meagher, ‘“The Times are they a-changin”?’ (note 35) p.137.

42. (1999) 198 CLR 511, 553.

43. Goldsworthy (note 35), p.699.

44. See, e.g., Grain Pool of Western Australia v. Commonwealth (2000) 202 CLR 479, 500–501.

45. (1999) 199 CLR 462.

46. Meagher, ‘Guided By Voices?’ (note 40) pp.267–9.

47. Sue v. Hill (1999) 199 CLR 462, para.161 (Gaudron J.).

48. I note that the judgment in Sue v. Hill did not use the language of connotation and denotation, but arguably this distinction within the core meaning of a term and the set of things falling within the core meaning underlies the reasoning of the majority. See Eastman v. The Queen (2000) 203 CLR 1, 45 (McHugh J.). See Meagher ‘Guided By Voices?’ (note 40) pp.267–8.

49. Goldsworthy (note 35) pp.699–701. See, also, Debates of the Australasian Constitutional Convention, 22 September 1897 (Sydney), 1080–81, http://parlinfoweb.aph.gov.au/piweb/view_document.aspx?ID=459&TABLE=CONCON (accessed 6 February 2007).

50. Ibid. Goldsworthy

51. Goldsworthy (note 35) p.700.

52. Ibid.

53. Kirk (note 36) Part 5.6.

54. Meagher, ‘“The Times are they a-changin”?’ (note 35) p.150.

55. Ibid. But see Craven, Heresy as Orthodoxy (note 37), where it is argued that there is little evidence to suggest that the framers were progressivists.

56. Bagaric appears to be of this view: Bagaric (note 37) pp.189–90.

57. See, e.g., Macquarie Dictionary (2001); Australian Oxford Dictionary (2004). It is noted that Encarta, the Microsoft online dictionary (of American derivation), contains an entirely sex- and gender-neutral definition, referring only to the union of two persons.

58. I acknowledge, however, that this conclusion is based on impression rather than hard data. It may well be that attitudes to marriage in Australia are changing.

59. High Court of Australia Justice Kirby has been the principal proponent of the use of international law in recent times, though historically various judges have used international law in constitutional interpretation. See Kristen Walker, ‘International Law as a Tool of Constitutional Interpretation’, Monash University Law Review, Vol.28 (2002), p.85.

60. In recent times High Court Justices Gummow and Hayne have been critical of the use of international law in this way: see Walker, ibid.

61. Joslin v. New Zealand, Communication No 902/1999, 30 July 2002, para.8.2, http://66.36.242.93/./html/newzealand_t5_iccpr_902_1999.php (accessed 6 February 2007).

62. Ibid. para.8.3. The more recent decision of the United Nations Human Rights Committee in Young v Australia (Communication No 941/2000: Australia. 18/09/2003, CCPR/C/78/D/941/2000), which found that denying same-sex couples benefits available to unmarried different-sex couples violated the right of equality, does nothing to challenge the Committee's decision about marriage in Joslin.

63. Henry Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals (Oxford: Oxford University Press 2000), pp.739–40.

64. This also precludes the use of the ‘external affairs’ power (section 51(29)), which permits the Commonwealth to legislate to give effect to Australia's treaty obligations, to support legislation providing for same-sex marriage.

65. The South African Supreme Court of Appeal recently held that the common law meaning of marriage in South African had evolved so as to recognise same-sex marriage: see Fourie v. Minister of Home Affairs, Case no 232/2003, 30 November 2004, http://wwwserver.law.wits.ac.za/sca/files/2322003/2322003.pdf (accessed 6 February 2007). The Canadian Supreme Court held that the term ‘marriage’ in the Canadian Constitution was not frozen in 1867 (when the British North America Act was enacted), but had evolved so as to now include same-sex marriage thus giving the Canadian Parliament power to provide for the same: see Reference re Same-Sex Marriage (note 6). Notably, both these decisions depended on the constitutional bill of rights in place in the two countries.

66. See, e.g., Re Refugee Tribunal, ex parte Aala (2000) 204 CLR 82, 97; Meagher, ‘“The Times are they a-changin”?’ (note 35) pp.149–51.

67. See Walker, ‘International Law’ (note 59), where I argue that customary international law is a legitimate influence on constitutional interpretation because it reflects values held by the international community. In contrast, foreign law simply reflects the values of a particular nation; values that may or may not reflect widely held views.

68. An answer to this question may be that our legal system has more in common with those that have recognised same-sex marriage than with those that have not, but this founders somewhat on the shoal of Australia's lack of a bill of rights.

69. The Preamble to the ICCPR, for example, states that ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’ and that human rights ‘derive from the inherent dignity of the human person’. Further, the ICCPR expressly provides for the right of equality and non-discrimination (articles 2 and 26).

70. In Australia, all states and territories have anti-discrimination laws that prohibit discrimination on the basis of sexual orientation.

71. The government of the Australian Capital Territory is presently considering how best to recognise same-sex relationships and has included marriage as an option in its discussion paper on the issue: see Department of Justice and Community Safety (ACT), The Recognition of Same Sex Relationships in the ACT: Discussion Paper (2005), p.11, http://www.jcs.act.gov.au/eLibrary/papers/RecognitionofSameSex Relationships-discussionpaper.pdf (accessed 6 February 2007).

72. See, e.g., R v. Brisbane Licensing Court, ex parte Daniell (1920) 28 CLR 23.

73. See, e.g., Colvin v. Bradley Brothers Pty Ltd (1943) 68 CLR 1.

74. See, e.g., Viskauskas v. Niland (1983) 153 CLR 280.

75. See note 26 above and accompanying text.

76. Section 51(39) of the Constitution gives the Commonwealth Parliament power to legislate in respect of matters incidental to the execution of its legislative powers. It is also accepted by the High Court that each grant of substantive power in section 51 carries with it an implied power to legislate on matters necessary to make the grant of power effective: see, e.g., D'Emden v. Pedder (1904) 1 CLR 91.

77. It is, however, noted that such rights and obligations are largely already available through recognition of same-sex relationships through a presumptive or de facto regime, as discussed above.

78. This issue is untested and complex, a full discussion of which is beyond the scope of this paper. The issue has arisen in the United States and has not yet been judicially resolved: see, e.g., Andrew Koppelman, ‘Interstate Recognition of Same-Sex Marriages and Civil Unions: A Handbook for Judges’ University of Pennsylvania Law Review, Vol.153 (2005), pp.2143–94. Notably, both conflict of laws principles and the full faith and credit clause in the United States Constitution allow for a public policy exception, so that the 50 individual states may refuse to recognise an out-of-state marriage that offend a substantial public policy of the forum: see, e.g., Larry Kramer, ‘Same-Sex Marriage, Conflict of Laws and the Unconstitutional Public Policy Exception’, Yale Law Journal, Vol.106 (1997), pp.1965–2008.

79. Sections 212 to 218 of and Schedule 20 to the Civil Partnership Act 2004 (UK) provide for recognition of foreign same-sex marriages in the United Kingdom as civil partnerships.

80. Civil Partnership Act 2004 (UK).

81. Civil Union Act 2004 (NZ).

82. Relationships Act 2003 (Tas), Part 2.

83. Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), http://www1.umn.edu/humanrts/undocs/html/vws488.htm (accessed 6 February 2007); Young v. Australia, Communication No 941/2000, UN Doc CCPR/C/78/D/941/2000 (2003), http://www1.umn.edu/humanrts/undocs/941-2000.html (accessed 6 February 2007).

84. See Joslin v. New Zealand (note 61).

85. Civil Partnership Act 2004 (UK), ss.212–18 and Sch. 20, as amended by the Civil Partnership Act 2004 (Overseas Relationships) Order 2005/3135 (UK).

86. The Lesbian and Gay Legal Rights Service provides a useful list of the pros and cons of marriage in its discussion paper on relationship recognition: Lesbian and Gay Legal Rights Service, The Bride Wore Pink: Legal Recognition of Our Relationships: A Discussion Paper, 2nd ed. (Sydney: LGLRS 1994), Part 8.4.

87. As I argue above, this is by no means constitutionally certain. Yet it was received wisdom in the lesbian and gay rights activist movement for many years. See, e.g., LGLRS (note 86) Part 8.4.

88. See, e.g., Miranda Stewart, ‘It's a Queer Thing: Campaigning for Equality and Social Justice for Lesbians and Gay Men’, Alternative Law Journal, Vol.29 (2004), pp.75–80; LGLRS (note 86) Part 4.2.

89. See New South Wales Gay and Lesbian Rights Lobby, Press Release, GLRL Position on Same-Sex Marriage, 28 August 2003, http://www.glrl.org.au/publications/press_releases/2003/01Sep2003_Marriage.htm (accessed 6 February 2007).

90. See, e.g., Jenni Milbank, ‘The De Facto Relationships Amendment Bill 1998 (NSW): The Rationale for Law Reform’, The Australasian Gay and Lesbian Law Journal, Vol.8 (1999), pp.1–26.

91. See, e.g., Goodridge v. Department of Public Health 440 Mass. 309, 798 NE2d 941 (2003).

92. See note 6.

93. Quilter v. Attorney-General [1998] 1 NZLR 523.

94. See, e.g., New South Wales Gay and Lesbian Rights Lobby (note 86), in which same-sex marriage was described as an ‘impossible dream’. But see Stewart (note 88) p.80.

95. For example, in Western Australia all substantive legislative provisions pregnant with discrimination against same-sex couples have been removed, but the meaning of marriage has not been altered (although that may be for reasons of constitutional law, as discussed above). In the United Kingdom, same-sex couples are not granted all of the substantive rights and obligations as different-sex married couples, and are denied the right to enter into ‘marriage’: see Civil Partnership Act 2004 (UK).

96. For an example of a rebuttal of these arguments, see Dale Carpenter, ‘Bad Arguments Against Gay Marriage’, in Greg Wharton and Ian Phillips (eds), I Do/I Don't: Queers on Marriage (San Francisco: Suspect Thoughts Press 2004).

97. It is impossible to be precise about numbers, as there are no national up-to-date data available. A state-based survey of 670 people by the Victorian Gay and Lesbian Rights Lobby indicated that 55 per cent of the respondents did not wish to marry, but that close to 80 per cent of the respondents conceived that marriage should be available as an option for same-sex couples: see Victoria Gay and Lesbian Rights Lobby (note 7) pp.39–40. And see New South Wales Gay and Lesbian Rights Lobby (note 89).

98. But see Stewart (note 88) p.80.

99. Raymond Gaita, ‘Same-Sex Marriage: A Philosophical Perspective’, http://www.law.monash.edu.au/castancentre/public-edu/gaita-ssm.html(accessed 6 February 2007).

100. See, also, Susan Boyd and Claire Young, ‘“From Same-Sex to No Sex”?: Trends Towards Recognition of (Same-Sex) Relationships in Canada’, Seattle Journal for Social Justice, Vol.1 (2003), pp.757–87.

101. Ibid.

102. Walker, ‘UN Human Rights Law’ (note 4).

103. See the sources cited in note 4.

104. Michel Foucault, Discipline and Punish (London: Penguin 1995), pp.182–3.

105. See, e.g., Martha Albertson Fineman, ‘Our Sacred Institution: The Ideal of the Family in American Law and Society’, Utah Law Review, Vol.2 (1993), pp.387–405.

106. I have made this argument in more detail elsewhere: see Kristen Walker, ‘Same-Sex Relationships and the Law: Comments on the Victorian Equal Opportunity Commission's Discussion Paper’, Alternative Law Journal, Vol.22 (1997), pp.293–7.

107. Hyde v. Hyde (note 29).

108. Constitution, s.51(21).

109. Divorce, of course, is possible and relatively easy, and it is not a criminal offence to engage in sexual activity outside marriage although it is a criminal offence to marry more than one person. Furthermore, Australian law recognises polygamous unions entered into outside Australia for certain limited purposes: see J. H. Wade, ‘Void and De Facto Marriages’, Sydney Law Review, Vol.9 (1981), pp.356–401.

110. See Boyd and Young (note 100) pp.783–5.

111. See ‘Explanatory Statement Issued by the Authority of the Attorney General for the Minister for Local Governments, Territories and Roads', Australian Capital Territory (Self-Government Act) 1988, Instrument of Disallowance, ComLaw, http://www.comlaw.gov.au/ComLaw/Legislation/LegislativeInstrument1.nsf/0/9B231E99E8803105CA25718C0017E065/$file/Amended+Civil+Unions+E+Statement.pdf (accessed 6 February 2007).