Marriage Amendment (Definition and Religious Freedoms) Bill 2017 - Proposed Same-Sex Marriage Bill

Thursday 16 November 2017 @ 11.27 a.m. | Legal Research

Yesterday, 15 November 2017, marked the release of the results of the Australian Bureau of Statistic’s Marriage Equality Postal Survey. The results found that, of the population of Australians that voted in the survey, 61.6% voted yes: the law should be changed to allow same-sex couples to marry. In response to this majority postal vote, Senator Dean Smith released the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (the “Bill”), which, as presented, attempts to pay heed to the wishes of the majority of the Australian population.

As of yet, the Bill is in the second reading stages in the Australian Senate. The vote deciding the outcome of the Bill is a “free vote”, meaning that all members of Parliament vote pursuant to their own wishes, not that of their party. The Bill must be agreed upon in both the Australian Senate and the House of Representatives, and amendments will likely be considered by both Houses. This article reflects the Bill as it has been originally presented to the Senate.

Overview of the Bill

As per section 2A of the Bill, the Objects of the Bill are:

  1. to allow civil celebrants to solemnise marriage, understood as the union of 2 people to the exclusion of all others, voluntarily entered into for life; and
  2. to allow ministers of religion to solemnise marriage, respecting the doctrines, tenets and beliefs of their religion, the views of their religious community or their own religious beliefs; and
  3. to allow equal access to marriage while protecting religious freedom in relation to marriage.

The protection of the religious freedoms has been an important factor in the arguments for and against the introduction of same-sex legislation. Senator Brandis Stated in the introduction of the Bill to the Senate:

“The Prime Minister and I and other members of the government have always said that there should be strong protections for religious freedom and freedom of conscience. Different senators will have their own views about whether the protections in Senator Smith's bill go far enough. I myself would prefer to see them go further, so I foreshadow that in the committee stage of the debate I will move an amendment to extend the right of conscientious objection to performing a ceremony of marriage from ministers of religion to include civil marriage celebrants as well. That is not a government position—there is no government position on a private senator's bill—but my own private view. Nothing in this bill inhibits the right of churches or of people of religious faith generally to continue to adhere to the doctrines and teachings of their church when it comes to marriage and to speak freely of those teachings, and to bring up their children in accordance with the tenets of their faith. Some have suggested incorrectly that the effect of the bill may be to limit that right. To put the matter beyond doubt, I will also move an amendment to make it clear that nothing in the bill makes it unlawful for people to hold and to express the views of their own religion on the subject of marriage. Such an amendment would not in any way derogate from the primary purpose of the bill, to enable same-sex couples to marry, but would make it clear that, as the Prime Minister and I have always said, that reform and the protection of religious freedom are not inconsistent.”

Structure of the Bill

The Bill consists of a Schedule of amendments, broken down into 5 Parts.

  • Part 1 – Main Amendments
  • Part 2 – Amendment of the Sex Discrimination Act 1984
  • Part 3 – Amendments if Schedule 9 to the Civil Law and Justice Legislation Amendment Act 2017 not yet commenced
  • Part 4 – Amendments once Schedule 9 to the Civil Law and Justice Legislation Amendment Act 2017 commences
  • Part 5 – Application and transitional provisions

The main Act proposed to be amended by the Bill is the Marriage Act 1961. Part 1 of the Bill aims to amend the Marriage Act to provide for a new definition of Marriage as the “union of 2 people to the exclusion of all others, voluntarily entered into for life” (inserted s 2A). This is primarily proposed to be done by changing the definition of marriage in subsection 5(1) of the Marriage Act by omitting “a man and a woman”, and substituting “2 people”. At present, the definition of Marriage in section 5 of the Marriage Act is: “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”

Another amendment proposed to be made by the Bill is the insertion of the definition of religious marriage celebrant as meaning “a person identified as a religious marriage celebrant on the register of marriage celebrants…” into subsection 5(1) of the Marriage Act. Additionally with regards to Religious marriage celebrants, provision is made in the proposed subdivision D of the Marriage Act for registration, in particular in the proposed s 39DA, “entitlement to be identified as a religious marriage celebrant on the register of marriage celebrants”.

The Bill then expands the rights of Ministers of religion by proposing to add a section 47 to the Marriage Act which allows a minister to refuse to solemnise marriages on the basis of religious beliefs if section 47(3) applies:

  1. the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister’s religious body or religious organisation;
  2. the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;
  3. the minister’s religious beliefs do not allow the minister to solemnise the marriage.

Additional protection provided by the Bill is by allowing “bodies established for religious purposes” to refuse to make facilities available or provide goods or services, under the proposed ss 47B of the Marriage Act, if the refusal:

  1. Conforms to the doctrines, tenets or beliefs of the religion of the body; or
  2. is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

Additional amendments made are to the Sex Discrimination Act 1984, allowing for celebrants to refuse to solemnise marriages despite the allowance of same sex marriage laws; as well as further amendments to the Marriage Act allowing for recognition of foreign same-sex marriages as well as other transitional provisions.

As such, under the proposed section 71 of the Marriage Act:

  1. A marriage is recognised as valid in Australia if:
    1. the marriage was solemnised in Australia, before the commencement of this item, by or in the presence of a diplomatic or consular officer of an overseas country (whether or not the country was a proclaimed overseas country at the time the marriage was solemnised); and
    2. at the time the marriage was solemnised:
      1. the marriage was not recognised in Australia as valid because the marriage was not the union of a man and a woman; and
      2. the marriage was recognised as valid under the law of the overseas country; and
    3. had the marriage occurred in the overseas country at the time the marriage was solemnised, the marriage would, after items 57 and 58 of this Schedule commence, be recognised as valid under Part VA of the Marriage Act 1961.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Marriage Amendment (Definition and Religious Freedoms) Bill 2017: Bill, explanatory memorandum and second reading speeches as published on Timebase, LawOne.

Marriage Act 1961: as published on Timebase, LawOne.

Sex Discrimination Act 1984: as published on Timebase, LawOne.

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