Is the government behaving unlawfully regarding the Marriage Act? 

Trigger warning: The below does not contain a single joke, humorous anecdote or parenthesis enclosed side-rant about pooping.


Let me pose a hypothetical. Imagine there is a woman, Debbie, who has been in a relationship for ten years with a guy called Ray. Debbie and Ray decide to get married and complete the forms, pay the fees (including GST) and, not wanting a fuss, get married in a small ceremony at the registry office.

After a few years they get divorced. Ray starts a relationship with a guy called Peter. Ten years later Ray and Peter decide to get married, so off to the registry office they go. The registrar denies their application as it’s prohibited by the Marriage Act, which defines marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

Let’s leave the hypothetical here for a moment and come back to it, but take a moment to consider the following: On what grounds exactly were Ray and Peter denied their marriage?

The Sex Discrimination Act defines what is and is not discrimination in relation to particular grounds on which discrimination could occur. There are eight in total, but the relevant ones for our purposes are Sex (section 5 of the Act), Sexual Orientation (5a), Gender Identity (5b) and Intersex Status (5c). Sex differs from gender identity in that sex is the designated gender at birth or biological gender.

Sex Discrimination is defined as having occurred if:

“…the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex… [or] …if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.”

The first definition above is direct discrimination, the second is indirect (to be found unlawful, indirect discrimination needs to pass a “reasonableness test“). “Materially different” means significantly different. 

The general gist is the same for all 8 grounds. In public life, if you treat one person one way and another a different way (or impose a condition that disadvantages one person in circumstances that are the materially the same), based on any of the 8 grounds, then you are discriminating.

The Act then goes on to define the areas of public life where it is unlawful to discriminate on any of these grounds, such as Employment, Education, Accommodation and, most relevant for our purposes, Goods & Services.

Goods & Services are relevant because in administering and regulating marriage the government is providing either a good or a service, as evidenced by the fact that Debbie and Ray paid GST.

Section 22 of the Act says the following regarding discrimination in the provision of Goods & Services:

“It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person.. by refusing to provide the other person with those goods or services or to make those facilities available to the other person…This section binds the Crown in right of the State.”

The Act also accommodates exemptions, or circumstances under which it is not unlawful to discriminate. Section 40 lists exemptions regarding acts done under statutory authority (discrimination as a byproduct of adhering to the law). Regarding the Marriage Act it states:

Nothing in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, affects anything done by a person in direct compliance with the Marriage Act 1961.

This means that discrimination on the basis of sexual orientation, gender identity and intersex status IS lawful when it comes to the Marriage Act. What isn’t mentioned is section 5, Sex.

Now let’s go back to the hypothetical about Debbie, Ray and Peter and ask, again, on what grounds exactly were Ray and Peter refused? There are some random assertions cobbled together below but don’t worry, it comes together in the end.

The marriage act doesn’t have an explicit opinion on sexual orientation. It states “a man and a woman”. No forms to be completed by by applicants request any information on sexual orientation either,  just references to “groom” and “bridegroom”. The determining grounds on which Ray and Peter can or can’t be married is their sex, not their sexual orientation. It does not state “two heterosexuals”. Ray and Peter may well be heterosexual, they still couldn’t get married. Debbie may have been gay but she could still marry Ray.

In legislating that women can marry men, but that men can’t, the government is providing a good or service to one segment of the population and denying it to the other, directly discriminating on the grounds of sex (and then again in reverse regarding who women can’t marry). 

It’s direct in that it’s explicit, so it doesn’t need to pass a reasonableness test. To quote the direct discrimination definition again, unlawful, direct discrimination is deemed to have occurred when “the discriminator (the registrar) treats the aggrieved person (Ray or Peter) less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex (Debbie).

Whether the circumstances are “materially different” is subjective and will vary from person to person. To me they’re not: the only difference is sex, which is objectively materially different only in that the Mariage Act act makes it so, but the Sex Discrimination Act prohibits this as being lawfully materially different grounds for discrimination.

Marriage in Australia is administered by the Births, Deaths & Marriages department of each state government, in accordance with the federal government’s Marriage Act. Staff at these agencies are employed by the government, and under the Sex Discrimination Act an employer is seen to be as liable as the employee if the employee unlawfully discriminates because they are adhering to directives, policies or procedures. The Act defines the government as the employer of all Commonwealth employees, and the statement “This section binds the Crown in right of the state” precludes both the State and Federal governments from immunity regarding this law.

So, if sex is the determining discriminator within the Marriage Act, and if Ray and Peter were denied a marriage licence on the grounds of their sex, and if sex is not exempted as lawful grounds for discrimination in the Sex Discrimination Act regarding the Marriage Act (I’m no lawyer, but it doesn’t appear to be) then for all practical purposes – if not legally – the registrar that denied their application was unlawfully discriminating and, as a result, so was the government. 

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