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Background information
Much of the information outlined below has been abbreviated from a federal Parliament background briefing on the history of marriage laws in Australia. The full text can be accessed at http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=spla/bill%20marriage/report/chapter2.htm
Information has also been taken from a Wikipedia entry titled Marriage Act 1961 - Australia.
The full text of this entry can be accessed at https://en.wikipedia.org/wiki/Marriage_Act_1961_%28Australia%29#Current_status_of_the_Marriage_Amendment_Act
Marriage laws in Australia prior to 1961
Prior to 1961, marriage laws were the province of the different Australia states and territories with regulations varying from one jurisdiction to another. For example, from 1901 on the marriageable age in Australian states and territories was the same as the age of consent: 14 for men and 12 for women. However, in 1942, Tasmania raised the marriageable age for men to 18 and for women to 16; Western Australia followed suit in 1956 and South Australia in 1957.
Another example is the variation in state laws pertaining to Indigenous Australians which regulated whom they could or could not marry.
Victoria's Aborigines Protection Act 1869 (Vic) gave the Board for the Protection of Aborigines the power to refuse marriage applications from Indigenous Victorians. In Queensland, the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld) prohibited Indigenous woman from marrying anyone other than an Indigenous man without the permission of an Aboriginal Protector.
In the Northern Territory, which was governed by Commonwealth law, the Aboriginals Ordinance 1918 restricted marriages between Indigenous women and non-Indigenous men. For example, the marriage of Indigenous or half-caste women to non-Indigenous men required legal permission.
Marriage law in Australia after 1961- the Marriage Act 1961
In 1961, the Australian Parliament, using its power to legislate with respect to marriage under Subsection 51(21) of the Constitution, passed the Marriage Act 1961in order to regulate marriage law uniformly across the country.
No formal definition of marriage
The Marriage Act 1961 did not include a definition of marriage in Section 5 at the time it was passed into law. However, Section 46 of the Marriage Act 1961 requires authorised celebrants to explain the nature of marriage and provides some sample words:
[T]he authorised celebrant shall say to the parties, in the presence of the witnesses, the words:
'I am duly authorised by law to solemnise marriages according to the law.
Before you are joined in marriage in my presence and the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.
Marriage, according to law in Australia, is the union of a man and woman to the exclusion of all others, voluntarily entered into for life.'
However, it was noted at the time that this form of words did not constitute a legally binding definition of marriage.
Senator Gorton elaborated during the second reading debate that, 'I want to make it clear that the fact of a celebrant saying those words, which clause 46 requires him to say, does not have the force of law to define a marriage in the sense in which the insertion of a definition ... would have.'
Marriage Amendment Act 2004 - defining marriage and excluding same-sex unions
In 2004, the Australian Parliament enacted the Marriage Amendment Bill 2004, introduced by then Attorney-General Mr Philip Ruddock. The bill sought to formalise the definition of marriage and to respond to the legalisation of same-sex marriages in some overseas countries.
The Marriage Amendment Act 2004 inserted the following definition of marriage into Subsection 5(1) of the Marriage Act:
'marriage' means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
In addition, the Marriage Amendment Act 2004 inserted Section 88EA into the Marriage Act to prohibit the recognition in Australia of same-sex marriages performed in foreign countries.
Current situation regarding the Marriage Act and same-sex marriage
In the run-up to the 2007 federal election, there was speculation that the Labor Party might change or reverse the same-sex marriage ban provided by the Marriage Amendment Act 2004. However Opposition leader Kevin Rudd twice stated his opposition to same-sex marriage.
In the run-up to the 2010 federal election, the Labor Party, under new leader and Prime Minister Julia Gillard, re-asserted their opposition to same-sex marriage. After the election, the Greens' increased numbers in the Senate and the House of Representatives led them lobby for same-sex marriage. Julia Gillard allowed a free vote on the issue in 2012 and it did not pass. She also reaffirmed her personal view opposing same-sex marriage.
In May 2013, the then backbencher Kevin Rudd announced he had changed his position. On his return to the office of Prime Minister in June 2013, Kevin Rudd became the first Australian Prime Minister to be an open supporter of changing the Marriage Act to include same-sex couples.
In 2015, the Labor Party, now in opposition, has indicated it will continue to allow its members a conscience vote on this issue (that is, it will not direct its members how to vote, allowing them to follow their own consciences.) The federal Coalition government, under the leadership of Tony Abbott, is opposed to same-sex marriage and will not allow its parliamentary members a conscience vote on any Act seeking to define same-sex unions as marriages under the Marriage Act.