Bills Digest No. 54,
PDF version [435KB]
Mary Anne Neilsen
Law and Bills Digest Section
Purpose of the Bill
Structure of the Bill
Terminology used in
the Bills Digest
History of the same-sex marriage
The Marriage Act 1961
The definition of ‘marriage’ and the
2004 amendments to the Marriage Act
Bills supporting amendment of the Marriage
Act to allow same-sex marriage
A popular vote on same-sex marriage:
Australian Marriage Law
Senate Select Committee on the
Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill
The Bill before the Parliament
Policy position of political parties
Position of major interest groups
Statement of Compatibility with Human
Religious freedom and same-sex
Key issues and provisions
Definition of marriage
Recognition of same-sex marriages
Authorised celebrants under the
Ministers of religion: religious
exemptions or protections
Commonwealth marriage celebrants:
religious exemptions or protections
Religious marriage celebrants:
exemptions or protections
No exemptions or protections on the
grounds of conscientious belief
No exemptions or protections for
state and territory marriage registrars
Defence Force chaplains and marriage
Exemptions for services by bodies
established for religious purposes
Section 40(2A) of the Sex
Date introduced: 15
substantive provisions commence on Proclamation or 28 days after Royal
Assent, whichever occurs first. Commencement of the consequential provisions
in Parts 3 and 4 of Schedule 1 are contingent on the
commencement of the provisions in the proposed Civil Law and Justice
Legislation Amendment Act 2017.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
All hyperlinks in this Bills Digest are correct as
at November 2017.
The primary purpose of the Marriage Amendment (Definition
and Religious Freedoms) Bill 2017 (the Bill) is to amend the Marriage Act 1961
to remove the restrictions that limit marriage in Australia to the union of a
man and a woman.
More specifically the Bill will:
two people to marry in Australia regardless of their sex or gender
foreign same-sex marriages in Australia.
The Bill will also amend the provisions in the Marriage
Act and the Sex
Discrimination Act 1984 to provide protections for religious freedom in
respect of marriage by:
ministers of religion to refuse to solemnise a marriage in conformity with
their religion’s doctrine, their religious beliefs or in order to avoid injury
to the susceptibilities of their religious community
a new category of ‘religious marriage celebrants’ who can refuse to solemnise a marriage where their religious beliefs do not allow them
to do so
bodies established for religious purposes to refuse to provide
facilities, goods and services for marriages on religious grounds.
of the Bill
The Bill consists of one Schedule of amendments containing
1 contains the major amendments regarding the new definition of marriage permitting
same-sex marriage and the protections for religious freedoms.
2 contains amendments to the Sex Discrimination Act to ensure
consistency between that Act and the new provisions in the Marriage Act.
3 and 4 contain consequential amendments.
5 contains application and transitional provisions.
Terminology used in the Bills Digest
At the outset it is noted that the Bills
Digest uses the term ‘same-sex marriage’ describing marriages of lesbian, gay, bisexual, trans and intersex
The term ‘exemption’ is used to describe
protection of religious organisations and individuals from claims of anti-discrimination
the same-sex marriage debate
Same-sex marriage has been on the political agenda in
Australia for many years, as part of the broader debate about the legal
recognition of same-sex relationships.
The 1990s saw the introduction of legislation across all
jurisdictions prohibiting discrimination against a person based on their sexual
orientation and subsequently the states and territories embarked upon
comprehensive legislative reforms removing discrimination against same-sex
couples. Legislation now exists in New South Wales, Victoria, Tasmania,
Queensland and the Australian Capital Territory that provides for the legal
recognition of relationships including same-sex unions. At a federal level, in
2008 and 2009 there was a wide ranging suite of reforms to provide equal
entitlements and responsibilities for same-sex couples in areas such as social
security, veterans’ entitlements, employment, taxation, superannuation,
immigration and workers’ compensation. Further reform followed in 2013 with new
federal legislation prohibiting discrimination based on sexual orientation,
gender identity, intersex status and marital and relationship status.
However there remains one significant area of difference
between the treatment of same-sex and heterosexual relationships and that is in
relation to the right to marry. At a federal level, marriage equality reform
has so far been unsuccessful. For a number of years this resulted in some states
and territories making attempts to introduce same-sex marriage laws. That
situation changed in December 2013 when the High Court in a challenge by the
Commonwealth Government, decided unanimously that the ACT’s same-sex marriage
laws could not operate concurrently with the Marriage Act 1961 (Cth) and
therefore the territory law had no effect.
Significantly the Court held that the federal Parliament has power under the
Australian Constitution to legislate with respect to same-sex marriage and that
whether same-sex marriage should be provided for by law is a matter for the
federal Parliament. Since that decision, the question of same-sex marriage has
remained in the federal arena.
There has been a
shift in community and political opinion, highlighted most dramatically in the
results of the recent Australian Marriage Law Postal Survey.
However the issue of same-sex marriage remains complex and controversial for
some—raising human rights, social, religious, moral and political questions.
While there are fewer and fewer rights and obligations attached to married
couples which do not attach to same-sex couples, supporters of LGBTI rights
argue this is not enough and that the remaining differences are unacceptable.
In a powerful statement gay human rights activist Rodney Croome argues that
same-sex marriage would be a sign of final acceptance and belonging and the
most powerful antidote there is to the ‘poison of prejudice and criminalisation
that same-sex relationships have endured for so long’.
Additional information on same-sex marriage is available
M Neilsen, Same-sex
marriage: issues for the 44th Parliament, Research paper series,
2015–16, Parliamentary Library, Canberra, 2015.
The Marriage Act 1961
The Marriage Act deals with a range of matters.
Its main purpose at the time of enactment was to bring the regulation of
marriage into the jurisdiction of the Commonwealth. Until 1961 marriage had
been regulated by state and territory law and there were nine separate and
diverse systems of marriage law in Australia.
Amongst other things the Marriage Act currently:
- sets the marriageable age and allows the marriage of minors in
- establishes the framework for marriage ceremonies. Parties can
marry in public or private, provided there is an official celebrant and two
witnesses to the declarations between the parties. Particular words are
prescribed for marriages solemnised by civil celebrants which reflect the understanding
of marriage in Australian law. Religions which have been recognised as
requiring monogamy and permanency as promises of marriage are permitted to use
their own ceremony
- establishes the framework of the regulation of authorised
marriage celebrants (both religious and non-religious)
- deals with issues of consent and void marriages
- creates offences relating to bigamy, under-age marriages, and
marriages not performed according to the required notice periods etc.
- defines marriage to mean ‘the union of a man and a woman to the
exclusion of all others, voluntarily entered into for life’ and
- deals with the recognition of validly contracted foreign
marriages for the purposes of Australian domestic law, and from 2004,
specifically excludes same-sex marriages from such recognition.
The definition of ‘marriage’ and the 2004 amendments to
the Marriage Act
As noted above, the Marriage Act defines marriage as
‘the union of a man and a woman to the exclusion of all others, voluntarily
entered into for life’.
This definition was inserted into the Marriage Act in
2004 along with changes to expressly preclude the recognition of same-sex
marriages conducted overseas.
These amendments were in the main a response to the legalisation of same-sex
marriage in a number of overseas jurisdictions. While the legislation had the
support of both major parties the Labor Party expressed reservations about the
process of enactment.
The Greens labelled it as discriminatory against the gay and lesbian community
and condemned both the Government and the Labor Party for failing to
acknowledge the change in present day society in the make-up of couples.
Alastair Nicholson, former Chief Justice of the Family Court of Australia
described it as ‘one of the most unfortunate pieces of legislation that has
ever been passed by the Australian Parliament’.
Bills supporting amendment of the Marriage Act to
allow same-sex marriage
Since the enactment of the 2004 amendments to the Marriage
Act which inserted the current definition of marriage, there have been 23 Bills
dealing with same-sex marriage introduced into the federal Parliament. Only
four of those Bills have come to a vote and no Bill has progressed past the
second reading stage. All 23 Bills have been private members’ Bills, introduced
by members of parliament representing the Australian Democrats, the Australian
Greens, the Australian Labor Party, independents, and one Liberal Democratic
Party member. Parliamentary Committees have reported on five of those 23 Bills.
Parliamentary Committees have reported on five of those 23 Bills.
For further detail on these Bills, the reader is referred
A popular vote
on same-sex marriage: a plebiscite
It was during the 44th Parliament that debate about
same-sex marriage further intensified, triggered, in part, by international
developments in the United Kingdom, New Zealand, the United States and Ireland
where same-sex marriage is now permitted.
The debate was spurred on by the introduction of a raft of private members Bills
and, finally, by the Coalition party room decision in August 2015 to reject a
policy change allowing a conscience vote on same-sex marriage adopting, instead,
a proposal to put the matter to a popular vote after the 2016 election.
Then Prime Minister Abbott, in arguing in support of a popular vote, said: ‘this
[matter] in the end is so personal, so sensitive, so intimate, if you like,
that it really should be decided by people rather than by Parliament’.
After the 2016 election, Prime Minister Turnbull stated that,
in keeping with the Coalition’s election commitment, the Government would
introduce into the Parliament a Bill for the holding of a plebiscite on
same-sex marriage as soon as was practicable and most likely in early 2017.
Those opposed to a plebiscite argued it was
an expensive opinion poll (with a Government appropriation of $170 million) and with no guarantee
that Parliament will heed the result.
Opponents pointed to its potential to be divisive and incite homophobic hatred. They also argued human
rights issues affecting a minority should be decided by a representative
Parliament and that Parliament has not in the past and should not now, abrogate
its responsibilities on important human rights issues.
The Plebiscite (Same-Sex) Marriage) Bill 2016 was
introduced by the Prime Minister, Malcolm Turnbull, in the House of
Representatives on 14 September 2016.
The Bill sought to establish the legislative framework for a compulsory,
in-person vote in a national plebiscite that would ask Australians ‘Should the
law be changed to allow same-sex couples to marry?’. The Bill passed the lower
House on 20 October 2016 but was defeated at the second reading stage in the
Senate on 7 November 2016.
Australian Marriage Law Postal Survey
On 8 August 2017 the Government announced that, if its
plebiscite proposal was rejected by the Senate, it would hold a voluntary
survey on the question of whether same-sex couples should be allowed to marry.
The Australian Marriage Law Postal Survey was not
authorised by stand-alone legislation. Instead, on 9 August 2017, the
Treasurer directed the Australian Statistician, under paragraph 9(1)(b) of the Census and
Statistics Act 1905, to ‘request statistical information from all
Australians on the electoral roll as to their views on whether or not the law,
in relation to same sex marriage, should be changed to allow same sex couples
On the same day the Finance Minister, Senator Cormann, issued a determination providing
an additional $122 million for the conduct of the survey.
Both these actions were challenged in the High Court, but the cases were
The survey was conducted by the Australian Bureau of
Statistics (ABS), with the final result announced on 15 November 2017.
The survey asked more than 16 million eligible Australians on the
Commonwealth Electoral Roll whether or not the law should be changed to allow
same-sex couples to marry.
Of the eligible Australians who expressed a
view, 61.6 per cent supported changing the law to allow same-sex couples to
marry and 38.4 per cent did not.
All states and territories recorded a
majority Yes response.
Of the 150 Federal Electoral Divisions, 133
recorded a majority Yes response, and 17 Federal Electoral Divisions recorded a
majority No response.
12,727,920 million people participated in
the voluntary survey—representing 79.5 per cent of the more than 16 million
Releasing the results, Australian
Statistician, David W. Kalisch, said the participation rate was high for a
This high response rate far exceeds
expectations and compares extremely favourably with other voluntary exercises
conducted around the world thanks to the strong interest and engagement of
eligible Australians in this topic [...]
The results were celebrated by the LGBTI community
and supporters of same-sex marriage. Prime Minister Turnbull’s immediate response
The Australian people have spoken in their millions and they
have voted overwhelmingly ‘yes’ for marriage equality.
They voted ‘yes’ for fairness. They voted ‘yes’ for
commitment. They voted ‘yes’ for love.
Now it is up to us, here in the Parliament of Australia, to
get on with it. To get on with the job the Australian people have tasked us to
do and get this done, this year, before Christmas. That must be our commitment.
Opposition Leader Bill Shorten told a celebration in
Yes! Yes! Yes!
What a fabulous day to be an Australian,
because in this survey, the Australian people have declared overwhelmingly
Australia is ready for marriage equality.
I want to say thank you. I want to say thank
you first and foremost to members of our LGBTIQ community.
You shouldn't have had to put up with this
survey, but you embraced it.
And I just want to make one promise, one
promise: today we celebrate, tomorrow we legislate.
However the glow of this celebration was
tempered to a degree by those noting the harm and the divisive nature that the
survey inflicted on the LGBTI community. As Neave Mahoney wrote:
In the ensuing debate and talk about how love wins, we
shouldn't let ourselves forget that this postal vote never should have happened
in the first place, and nothing like this should happen again to any minority
group. The public voting yes or no on human rights is not what democracy looks
like. If we're the country that we say we are, we need to recognise that the
postal vote was wrong and damaging to some of the most vulnerable people
in our community.
Senate Select Committee on the Exposure Draft of the
Marriage Amendment (Same-Sex Marriage) Bill
On 10 October 2016 the Government released for discussion
the Exposure Draft of the
Marriage Amendment (Same- Sex Marriage) Bill (Exposure Draft) as part of
the preparatory work for the plebiscite.
The Exposure Draft included provisions to allow same-same
sex marriage; repeal the existing ban on the recognition of
same-sex marriages solemnised overseas; and to provide exemptions for marriage
celebrants (both religious and civil) who may have religious or conscience
objections to solemnising same-sex marriages. Religious
bodies and religious organisations would also be able to refuse to provide
facilities, goods or services for the purpose of solemnisation of a same sex
The Attorney-General on releasing the Exposure Draft
In all its dealings in this matter, the Government has acted
in good faith to acknowledge the diverse and strongly held views of all
participants. The Government recognises that it is important for Australians to
know what the effect may be of voting ‘yes’ or ‘no’ at the plebiscite.
The Labor Party in response stated that the Exposure Draft
is not a Bill that delivers equality, but rather one that entrenches
If the Government’s only objective was to achieve marriage
equality, these amendments would stop at removing the words “man and woman”
from the Marriage Act. But they go much further.
These amendments introduce new forms of legal discrimination
against the LGBTI community.
If the Government truly wanted marriage equality, it would
drop this plebiscite altogether and allow a free vote on the floor of
Despite the lack of support for the plebisicite, on 30
November 2016, the Labor, Greens and NXT parties in the Senate voted to create
a Select Committee to examine the Exposure Draft, with particular reference to
Details of this inquiry and the Committee report are available on the Select
The Senate inquiry received over 400 submissions, heard
from 45 witnesses and held three public hearings in Sydney, Melbourne and
The Committee heard from a range of witnesses including the Australian
Catholics Bishops Conference, the Anglican Church Diocese of Sydney, Uniting
Church LGBTIQ Network, Uniting Church in Australia, Coalition of Celebrant
Associations, Australians for Equality, Australian Marriage Equality, Parents
and Friends of Lesbians and Gays (PFLAG).
The Select Committee, chaired by Liberal
Senator David Fawcett tabled its report in the Senate on
15 February 2017.
The Committee reached agreement on several issues including:
- ministers of religion should be able to refuse to marry same-sex
- civil marriage celebrants should be required to uphold the law and
marry same-sex couples if same-sex marriage is legalised in Australia
- a separate category of ‘religious marriage celebrant’ should be created to allow marriage celebrants performing
ceremonies to refuse to marry same-sex couples on religious grounds
- that any exemptions for religious organisations in relation to
same-sex weddings should be precisely defined.
The Committee did not recommend an
exemption from anti-discrimination law for individuals or commercial businesses
with a “conscientious” objection to providing goods and services for same-sex
The report also examined the
long-standing debate about competing rights and freedoms, including the
compatibility of freedom of conscience and religion with same sex marriage.
Further information about the Select
Committee report is provided below under the headings: Religious freedom and same-sex
marriage and Key issues
The Bill before the Parliament
Following the release of the Select Committee report,
Liberal Senator Dean Smith, a member of that Committee, together with Liberals
Tim Wilson, Senator Warren Entsch, Trevor Evans and Trent Zimmerman) worked
toward a new Bill that would legalise same-sex marriage. The Bill was drafted
essentially using the Exposure Draft as the foundation and incorporating the
recommendations of the Select Committee regarding religious protections.
On 6 August 2017 the group released the draft Bill called
the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 stating:
The Bill consciously uses the Senate Committee consensus
report as the basis for legislating to allow two people to marry, while at the
same time protecting religious views about marriage in Australia.
The Bill is the first to introduce protection for the
religious views of ministers of religion, Australian Defence Force chaplains
and create a new class of religious marriage celebrants.
The Bill respects the religious beliefs of ministers of
religion and provides that a minister may refuse to solemnise a marriage, and
also permits existing marriage celebrants to refuse to conduct a marriage where
to do so would be contrary to their religious beliefs.
The Bill also makes clear that organisations established for
religious purposes can continue to refuse to make facilities available or
provide goods and services for the purposes of a marriage if contrary to its
[...] The Bill is the most considered and comprehensive
response to the issue of same-sex marriage to date, and is the most
comprehensive accommodation of competing attitudes on the issue [...]
We will continue to discuss the pathway forward with our
colleagues and argue for Liberals to have a parliamentary free vote sooner
rather than later.
It was this Bill that was introduced into Parliament on 15
November 2017, the day the Postal Survey results were announced. Debate in the
Senate commenced the following day. Introduced by Senator Dean Smith, the Bill has been co-sponsored by a cross section of eight Senators:
Senators Linda Reynolds (Liberal), Jane Hume (Liberal), Penny Wong (Labor),
Louise Pratt (Labor), Richard Di Natale (Greens), Janet Rice (Greens), Skye
Kakoschke-Moore (NXT) and Derryn Hinch (Derryn Hinch’s Justice Party).
At the time of writing, the Bill has not been referred to a
Committee for inquiry and neither the Senate Scrutiny of Bills Committee nor
the Joint Parliamentary Committee on Human Rights has reported on the Bill.
Policy position of political parties and politicians
The position of the various political parties on same-sex
marriage over time has been well documented.
In relation to the Bill before the Parliament, the Prime
Minister has commended it, pointing out also that there would
be a free vote in the Parliament and that he anticipates some amendments would
be moved. The Prime Minister was also reported as defending the Bill saying ‘it
does not impose any restrictions on religious freedoms at all’.
The Attorney-General Senator George Brandis
supports the Bill, although also indicating he would be tabling amendments to
provide further exemptions to cover all marriage celebrants and freedom of speech
protections for religious views and practices.
It is reported that some supporters of the NO vote,
including Cabinet Ministers Scott Morrison, Senator Mathias Cormann and Peter
Dutton are calling for amendments to the Bill to allow civil
celebrants to reject weddings, ensure charities are not adversely affected, and
provide protections for freedom of speech and religion.
It is also reported that some supporters of
the NO vote representing electorates which had a majority YES vote have
indicated they will vote in support of the Bill.
On 14 November 2017, the day before the Bill’s introduction
to Parliament, Labor caucus resolved to support the Bill stating that it
strikes an acceptable compromise. In keeping with current Labor Party policy,
Members and Senators will be allowed a free vote.
Senator Penny Wong, leader of the Opposition in the Senate
described the Bill as the best path to legislate marriage equality. In a warm
display of bipartisanship Senator Wong acknowledged Senator Dean Smith for his integrity,
courage and work in bringing the Bill to the Parliament. Senator Wong
co-sponsored the Bill because:
I believe this is the Bill that can pass the parliament. It
is a Bill based on the consensus report of a cross-party Senate select
committee, a committee which undertook extensive consultations with groups
supportive of and opposed to marriage equality, and its recommendations sought
to balance these interests. I again reiterate: Australians voted to remove
discrimination, not to extend it. This Bill strikes a balance between achieving
marriage equality and protecting the rights of religious institutions whose
doctrines and teachings do not enable them to support marriage equality, all of
this consistent with Australia's hard-won and well-established
Labor Senator Louise Pratt, another sponsor also praised the
It upholds the rights of all couples to marry and it does
this at the same time as upholding the right of religious institutions to
continue to define marriage according to their own doctrines. We have
taken great care on these points. The Bill before us does not embed further
discrimination in the Marriage Act, and we must take great care not to in any
further amendments. Australians didn't vote for people to have the right to
refuse services to a same-sex couple seeking to get married any more than they
voted to refuse service to an interfaith-heterosexual couple or an interracial
couple. Australians voted for equality, not for more discrimination. To
legislate to give people a right to discriminate on the provision of goods and
services would simply go too far.
It is reported that Labor Members of Parliament who were supporters of the YES vote and who represent electorates which had a
majority NO vote have indicated they will vote in support of the Bill.
The Australian Greens support the Bill, noting also that in
the interests of progressing the matter they have already compromised their
views to accommodate religious protections. In the parliamentary debate on the
Bill, Senator Janet Rice said:
It is time for parliament to do its job.
[...] The Greens are acting in good faith in this debate. We
want to see a Bill passed by this parliament that reflects both the principles
of equality and freedom from discrimination and the ability of people to act in
accordance with the tenets, doctrines and beliefs of their religion. We are
considering some amendments that we believe will improve the Bill in this
regard. It's important, though, to make clear that this Bill has already built
in concessions from the Greens. This is not the Bill that we would have
introduced if it were up to us alone.
Position of major interest groups
Supporters of the same-sex marriage argue that the
protection of religious freedom provided in the Bill is an appropriate
Anna Brown and Alex Greenwich, co-chairs of the Equality
Campaign, welcomed the Bill and said it represents the most robust and genuine
approach to achieve marriage equality that the Parliament has seen.
The Bill followed a robust multi-party Senate
inquiry tasked with developing legislation. The findings from this inquiry,
headed by Senator David Fawcett, have shaped the Bill’s protections for
religious freedoms. In a debate too often mired in seemingly intractable
positions and wedge politics, this Bill is a game changer. It would deliver
equality for same-sex couples and it also ensures that faith communities can
continue to celebrate religious marriage.
The Bill is so robust it was welcomed by faith
leaders, LGBTI organisations, the Labor party, crossbenchers, and key figures
in the Coalition including federal Liberal party president Nick Greiner. This
represents an incredible consensus, something rare in today’s political world.
The Australian Human Rights Commission supports the Bill,
with Commissioner Edward Santow stating that the Exposure Draft Report is a
blueprint for constructive legislative reform, which respects the rights of all
Australians and provides a strong foundation for future legislation.
The Commission will continue to offer advice on how to amend
the legal definition of civil marriage while maintaining existing religious
Father Frank Brennan and Professor George Williams, both
human rights lawyers, argue the Bill should be passed quickly and that genuine
religious freedom issues should be dealt with at a later day. Their views are
set out in more detail below under the heading Religious freedom and
Associate Professor Neil Foster from the University of
Newcastle presents a different view. A supporter of the NO case, his analysis
of the Bill prior to its introduction into Parliament was critical, arguing
that the religious protections are ‘far too few and far too
narrow, and the proposal cannot be seen as providing adequate protection for
this fundamental human right’.
Amongst other things Professor Foster argues
that the Bill fails to protect the religious freedom of individuals who are
public servants, and small business owners who are not part of a wider
‘religious organisation’. Furthermore he believes that a separate category of
religious marriage celebrants that existing civil marriage celebrants must
transfer into to have their religious freedom recognised, is ‘odd and
The assumption seems to be that a citizen can
only exercise religious freedom if they classify their whole work as
“religious”. But that is not the way that religious freedom works! As a
fundamental human right all persons, both clergy but also “secular” workers,
small business owners, and people in general, have religious freedom rights. Of
course those rights will need to be balanced against other “fundamental rights
and freedoms”. But Australia’s commitment to human rights principles ought to
lead to the maximum possible space being given for religious freedom when it
does not interfere with those other rights.
Professor Foster concludes that there are much
wider issues beyond the confines of the actual ceremony, which will follow such
a major change. These he argues will need to be addressed:
Will there still be robust freedom of speech protection
for believers to express their views, based on their deep religious
convictions, that same sex marriage is not a good idea? Will religious schools
be able to continue to teach children who are sent to them by parents who want
their child to have a religious education, what those views are? Will employees
be sacked for holding the wrong views? These and other issues need serious
discussion before changes of this sort are made.
It was reported that Lyle Shelton from the Australian
Christian Lobby and the Coalition for Marriage, when asked if he would now
accept the result and move on from the issue, said: ‘In a democracy no question
is ever completely closed’. He and his supporters would keep trying to persuade
Australians to ‘win this back over time’’.
That could take years or decades but I think there are
millions of Australians who still believe that marriage is between one man and
one woman and that is a public good, and there may be a time in the future when
we can persuade our fellow Australians to that position once again.
The Coalition for Marriage has indicated it would be
hoping for further protections to be placed in the Bill:
Thank you to the millions of Australians who voted No. In
their push for same-sex marriage, the ‘yes’ campaign assured Australians that a
change in the law would have no consequences for them; it is now time for them
to make good on that promise and ensure that proper protections for parental
rights, freedom of speech and belief are in place.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Bill has been assessed for its
compatibility with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of that Act. The Statement of
Compatibility with Human Rights states that the Bill is compatible.
freedom and same-sex marriage
The numerous parliamentary committee inquiries into same-sex
marriage have canvassed at great length the various arguments for and against
same-sex marriage and the relevant committee reports provide an excellent
summary of those arguments.
However since those earlier committee inquiries and
particularly in the period leading towards the Postal Survey, the emphasis of
the debate has shifted, with a strong focus moving to questions regarding
religious freedoms. Key questions now being debated are:
far religious exemptions should extend for those who are morally opposed to
same-sex marriage on the basis of their religious belief?
increases to general protections for religious freedoms (or exemptions from
other anti-discrimination protections) are necessary?
Religious freedom encompasses freedom of conscience and
belief, the right to observe or exercise religious beliefs, and freedom from
coercion or discrimination on the grounds of religious (or non-religious)
The operation of Commonwealth laws on the freedom of
religion was considered in depth in the 2016 report of the Australian Law Reform
Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Report 129)
(the ALRC report). This report summarises the current laws as well as arguments
for and against expanding exemptions for religious freedoms.
The ALRC notes there are very few, if any, provisions in
Commonwealth laws that interfere with religious freedom. The main areas of
tension arise where religious freedom intersects with anti-discrimination laws:
The accommodation or ‘special treatment’ in
anti-discrimination law of those who observe religious beliefs is a point of
tension. In Australia, debate in this area has crystallised around the
exemptions for religious organisations in anti-discrimination legislation.
Where exemptions do not apply, or are not broad enough, anti-discrimination law
may be considered to encroach on freedom of religion.
Commonwealth anti-discrimination law makes it unlawful to
discriminate against a person on the basis of a person’s personal attributes,
such as their sex or sexual orientation, in areas of public life including
employment, education and the provision of goods, services and facilities.
These laws contain exemptions for religious organisations and religious
educational institutions. These exemptions apply where the discriminatory act
or conduct conforms to the doctrines, tenets or beliefs of a religion, or is
necessary to avoid injury to the religious sensitivities of adherents of that
The ALRC explains that the effect of these exemptions is
a religious school, for instance, may lawfully choose not to
employ a pregnant, unmarried teacher, in circumstances where this would be
discriminatory conduct for a non-religious organisation (unless it would breach
state or territory law).
A complicating factor is that each state and territory has
also enacted anti-discrimination legislation. 
As the AHRC states ‘Commonwealth laws and the state/territory laws generally
overlap’ but ‘apply in slightly different ways and there are some gaps in the
protection that is offered’. People ‘also need to check the exemptions and
exceptions in both the Commonwealth and state/territory legislation as an
exemption or exception under one Act will not mean you are exempt under the
In relation to stakeholder views, the ALRC learnt that:
argued for reforms to anti-discrimination laws to ensure that freedom of
religion is protected more fully, including through the operation of exemptions
from anti-discrimination laws for religious organisations, or ‘conscientious
by contrast, suggested that the existing exemptions for religious organisations
should be narrowed or removed, not widened.
A broader concern of stakeholders was that freedom of religion may be
vulnerable to erosion by anti-discrimination law if religious practice or
observance is respected only through exemptions to general prohibitions on
An alternative approach would involve the enactment of
general limitations clauses, under which legislative definitions of
discrimination would recognise religious practice or observance as lawful
discrimination, where the conduct is a proportionate means of achieving
legitimate religious objectives.
The ALRC however concluded there is no obvious evidence
that Commonwealth anti-discrimination laws significantly encroach on freedom of
religion in Australia, especially given the existing exemptions for religious
Nevertheless, concerns about freedom of religion should be
considered in future initiatives directed towards the consolidation of
Commonwealth anti-discrimination laws, or harmonisation of Commonwealth, state
and territory anti-discrimination laws. In particular, further consideration
should be given to whether freedom of religion should be protected through a
general limitations clause rather than exemptions.
The Select Committee inquiring into the Exposure Draft
also considered the question of whether there should be broader protection of
The Select Committee was cognisant of previous attempt to
reform federal anti-discrimination law and also aware that such reforms are
‘unavoidably complex, requiring expert consideration of international human
rights obligations and federal, state and territory laws, as well as relevant
While noting that the Australian Government had made previous attempts to
progress such reforms, it was the Committee’s view that arguments for
protecting religious freedom in Australia support reconsideration of these
The Select Committee concluded that the evidence presented
supported the need for enhancement of protections for religious freedom preferably
through the inclusion of a religious belief clause in anti-discrimination
legislation rather than through further exemptions.
In relation to a ‘no detriment’ clause the Select Committee
The idea of a 'no detriment' clause was not canvassed
extensively in this inquiry given that it is not proposed by the Exposure
Draft. Should a parliament decide to legislate in this area, further
examination of the potential form and consequences of such a clause is required
before such a concept could be recommended by the Committee.
Other human rights advocates, including many who support
same-sex marriage, argue that there is a place for further reform to protect
religious freedom but that this should be conducted after the passage of the
Bill. For example, Father Frank Brennan, Jesuit priest and human rights lawyer
Some 'No' advocates have been arguing that all necessary
protections for freedom of religion should be inserted in the amended Marriage
It makes good sense to include in the amended Marriage Act
any necessary protections of religious freedom in relation to marriage
ceremonies. But other issues of religious freedom would be best considered in
other pieces of Commonwealth legislation. These other amendments might take time
The other issues relate to protection for employees,
protection for churches as employers and property holders, protection for
churches as educators, and protection for parents and guardians wanting to
teach their children according to their religious faith or wanting to spare
their children teachings inconsistent with their religious faith. During the
postal survey campaign, many of the 'No' advocates have claimed that there is
considerable shortfall in these protections. None of these issues should be
included in the amended Marriage Act.
As Father Brennan points out, under the Fair Work Act
2009 and the Sex Discrimination Act, religious employers, property
owners and educators can already discriminate on the grounds of sexual
orientation or marital status, if the action taken is done to avoid injury to
the religious susceptibilities of believers, and is done in accordance with the
religious doctrines, tenets, beliefs or teachings. In his view the major gap in
the national architecture for freedom of religion is the lack of any
legislative provision allowing persons the freedom to demonstrate their
religion, belief in worship, observance, practice and teaching, either
individually or as part of a community, in public or in private. Such a
provision is included in the human rights charters of Victoria and the ACT.
Father Brennan concludes:
These issues will take time to resolve. The Marriage Act
should be amended promptly honouring the strong will of the Australian people
for the recognition of same sex marriage. The Marriage Act amendments need to
include adequate protection for freedom of religion in the conduct of marriage
ceremonies. Other issues of religious freedom should be dealt with by the
tweaking of existing legislation such as the Fair Work Act and the Sex
Discrimination Act. Our politicians then need to determine how to replicate the
Victorian and ACT protection of religious freedom in national legislation.
Professor George Williams presents a similar view. While
critical of attempts by conservative groups to wind back anti-discrimination
laws before legalising same-sex marriage, Professor Williams argues that
protection of freedom of religion in Australia compares poorly with other
Leading conservatives reacted to the clear result in the
same-sex marriage postal survey by flagging a wind-back of anti-discrimination
This has predictably, and rightfully, received a scathing
response. Sensing defeat, they have changed tack. Cabinet ministers are now
calling for Parliament to include a general protection for religious freedom in
the same-sex marriage law, or to enact a separate ‘‘religious protections’’
bill in the new year.
We should be well past the point where a
business can deny service because of the religious beliefs of the proprietor. Few Australians want to live in a country where a baker,
cinema or cafe can refuse to serve a same-sex couple, or a divorcee or
adulterer. Allowing such conduct would undermine the tolerance and respect that
fosters social harmony.
Despite this unpromising start to the debate, there is a good
point to be made about the poor state of Australian law in preserving religious
freedom. This is protected by section 116 of the Constitution,
which provides four guarantees, including that the Commonwealth may not make
any law ‘‘prohibiting the free exercise of any religion’’. Section 116
has proved to be a frail and ineffective shield. Despite several attempts, the
High Court has never been convinced to use this section to strike down a law.
And, in any event, the section applies only to laws passed by the Federal
Parliament, and not to any law enacted by the states. As a result, the states
are free to target people for discrimination based on their religion, such as
by banning the burqa or other forms of religious dress. [...]
Australian law fares poorly when it comes to religious
liberty. The International Covenant on Civil and Political Rights spells out
the international consensus on the need for protection. This is reflected in
the national laws and constitutions of every democracy except Australia. [...]
The weakness of Australian law when it comes to religious
liberty is longstanding and well known.
Professor Williams argues that there should be better
protection for religious belief but that this should not be by way of a
stand-alone right in the same-sex marriage law or separate Act.
This would introduce a different problem by privileging religion over
other rights, such as freedom of speech and the right to equality. This would
make sense in a theocracy, but not in a secular nation like Australia that
embraces diversity of belief and recognises the separation of church and state.
Freedom of speech, for example, deserves equivalent protection. Without this,
we risk the ability of people to speak freely, and critically, about religious
matters. Australia should avoid any move towards reviving the importance of
criminal offences such as blasphemy. Religious freedom must also not be used as
cover to wind back historic gains towards equality made by women and other
groups. The right way forward is to protect religious freedom in a law that
also recognises other fundamental rights. Only a broader human rights law of
this kind can ensure proper and measured protection for religious interests.
This would provide long overdue protection for all of the freedoms that
underpin a free and democratic Australian society.
On 22 November 2017, Prime Minister
Turnbull announced the appointment of former Attorney-General in the Howard
Government and more recently Australia’s Special Envoy for Human Rights,
Phillip Ruddock, to examine ‘whether Australian law adequately protects the human
right to religious freedom’.
Mr Ruddock will be assisted by the President of the Australian Human
Rights Commission, Rosalind Croucher, retired Federal Court Judge Annabelle Bennett
and Father Frank Brennan. A report is to be provided to the Prime Minister by
31 March 2018. In announcing the inquiry, the Prime Minister stated:
The impending legalisation of same-sex marriage has seen a
variety of proposals for legislative reform to protect freedom of religion.
Many of these proposals go beyond the immediate issue of marriage.
Any reforms to protect religious freedom at large should be
undertaken carefully. There is a high risk of unintended consequences when
Parliament attempts to legislate protections for basic rights and freedoms,
such as freedom of religion. The Government is particularly concerned to
prevent uncertainties caused by generally worded Bill of Rights-style
Key issues and provisions
Definition of marriage
Subsection 5(1) of the Marriage Act defines marriage
to mean ‘the union of a man and a woman to the exclusion of all others,
voluntarily entered into for life’.
Item 3 in the Bill amends this definition replacing
the words ‘a man and a woman’ with the words ‘2 people’. The definition
proposed by the Bill would therefore be:
marriage means the union of 2 people, to the exclusion of all
others, voluntarily entered into for life.
The drafting of the definition in these terms without
reference to sex, sexual orientation or gender identity has been the preferred
option in a number of the more recent same-sex marriage Bills.
The Explanatory Memorandum confirms that this definition
would encompass all lesbian, gay, bisexual, trans and
of same-sex marriages conducted overseas
Items 57 and 58 repeal subsection 88B(4) and section
88EA of the Marriage Act. These provisions, inserted in 2004
prohibit the recognition of marriage between same-sex couples solemnised in a
foreign country. The effect of the repeal would be that same-sex marriages solemnised
in a foreign country will be recognised in Australia as valid marriages. A
related amendment provides that existing same-sex marriages solemnised outside
Australia will be automatically recognised in Australia from the date of
commencement of the Act.
The Explanatory Memorandum clarifies that recognition of
foreign same-sex marriages will be subject to the same restrictions currently
in place for the recognition of other foreign marriages—for example
restrictions on bigamy, underage marriage, prohibited relationships and if
there was no consent.
Authorised celebrants under the Marriage Act
One of the purposes of the Marriage Act is to
establish the framework for the regulation of authorised marriage celebrants
(both religious and non-religious). There are three major classes of celebrants
authorised to solemnise marriages under Part IV of the Act. Two of these
continue to be regulated by the state and territory Registries of Births,
Deaths and Marriages and the third and more recent class is regulated by the
Commonwealth. These classes are:
of religion of a recognised denomination, proclaimed under section 26 of
the Act, who are nominated by their denomination and registered and regulated
by state and territory registries of births, deaths and marriages
and territory officers authorised to solemnise marriages under subsection 39(1)
of the Marriage Act and registered by state and territory Registries of
Births, Deaths and Marriages
registered marriage celebrants who are authorised under the Marriage Celebrants
Program to perform marriages. This group includes civil celebrants and
celebrants who are ministers of religion whose denomination is not proclaimed
under section 26 of the Marriage Act (for example, Sikhs, Buddhists and
World Harvest Ministries).
There is also a fourth much smaller category of
celebrants, namely Defence Force chaplains. Part V of the Marriage Act
allows chaplains to solemnise marriages where at least one of the parties is a
member of the Defence Force and where this marriage occurs in an overseas
The Bill at item 2 repeals the current definition
of ‘authorised celebrant’ and inserts a new definition providing two new
categories of authorised celebrants: religious marriage celebrants and Defence
Force officers (discussed below). The new definition also clarifies that
Defence Force chaplains are authorised celebrants.
Ministers of religion: religious exemptions or
A minister of religion is defined in the Marriage Act
to mean a person:
to solemnise marriages on behalf of a religious body or religious organisation
that is a proclaimed ‘recognised denomination’ under the Marriage Act or
religion is not a recognised denomination and who is registered as a marriage
celebrant under the Marriage Act.
Currently under section 47 of the Marriage Act
ministers of religion can refuse to solemnise any particular marriage:
Nothing in this Part:
(a) imposes an obligation on an authorised celebrant, being
a minister of religion, to solemnise any marriage; or
(b) prevents such an authorised celebrant from making it a
condition of his or her solemnising a marriage that:
notice of intention to marry than that required by this Act is given; or
additional to those provided by this Act are observed.
Parliamentary committees that have examined the subject of
same-sex marriage have all concluded there is broad consensus that ministers of
religion should have a right to refuse to solemnise a marriage that is not in
accordance with their religion.
It is also acknowledged that section 47 as currently drafted already protects
the religious freedom of ministers of religion by enabling them to refuse to
solemnise a marriage without breaching any obligation in Part IV of the Marriage
Act. However some submitters to the various Committee inquiries have argued
that section 47 would need to be strengthened to confirm specifically that
ministers of religion are not required to solemnise a same-sex marriage.
The provisions proposed in the Exposure Draft Bill took up this suggestion,
providing that a minister of religion may refuse to solemnise a same-sex
marriage on religious grounds.
A number of submitters to the Select Committee opposed
this, arguing that a specific reference to same sex marriage is unnecessary,
discriminatory, and would permit religiously motivated discrimination against
LGBTI persons. The Select Committee agreed that such exemptions would
explicitly discriminate against same-sex couples, while limiting also the
doctrinal reasons for discrimination. The Select Committee therefore supported
the removal of an exemption referring specifically to a refusal to solemnise marriage
that is not the union of a man and a woman.
In response to the Select Committee’s views, the Bill
repeals and replaces section 47 so as to strengthen and clarify the
extent of the exemption for ministers of religion but also to draft the
provision without specific reference to same-sex marriage.
Proposed subsections 47(1) and (2) reiterate the
position under existing section 47, so that a minister of religion may refuse
to solemnise any particular marriage or make a condition of solemnising that additional
requirements to those contained in the Marriage Act are observed.
Proposed subsection 47(3) is a new provision
setting out that a minister of religion may refuse to solemnise a marriage on
the basis of religious grounds, when the refusal is:
(a) in conformity with their religion’s doctrine, tenets,
(b) in order to avoid injury to the susceptibilities of
their religious community, or
(c) because the minister’s own religious beliefs do not
allow the minister to solemnise the marriage.
Subsection 47(3) is not restricted to a refusal to
solemnise same-sex marriages but would also apply for example where a minister
refuses marriage because the religion does not support previously divorced or
The Explanatory Memorandum explains that paragraphs (a)
and (b) are drafted so as to be consistent with the existing religious
exemption in subsection 37(1)(d) of the Sex Discrimination Act and
broadly consistent with exemptions found in other state and territory
Paragraph (c) provides an additional circumstance where a
minister of religion can refuse to solemnise a marriage—if an individual
minister’s religious beliefs do not allow them to solemnise a marriage. It is
to cover situations where for example the doctrines, tenets or beliefs of the
minister’s religion are ambiguous or allow for ministers to exercise their own
discretion in deciding whether to perform certain marriages. 
Proposed subsection 47(4) confirms that section 47
does not limit the grounds on which a minister of religion may refuse to
solemnise a marriage (for example where there is a double booking). However,
unless one of the religious belief protections apply, ministers of religion
will still be required to comply with other laws, including anti‑discrimination
laws (e.g. Racial Discrimination Act 1975).
Commonwealth marriage celebrants: religious exemptions or
While there is general consensus that ministers of religion
should have the right to refuse to conduct marriages on religious grounds, the
question of religious exemptions for civil celebrants has been more
The Commonwealth Marriage Celebrants Program was established
in 1973, its purpose being to provide a secular alternative and freedom of
choice for marrying couples who did not want to have a religious ceremony and
yet did not want a registry wedding.
Starting with only 13 civil celebrants in 1973, the program has greatly
expanded since then, with a dramatic increase in numbers following the gradual
lifting of the ceiling on the number of marriage celebrant appointments after
2002. There were 8,662 Commonwealth-registered marriage celebrants as at 1 July
Civil marriages have outnumbered religious ceremonies since 1999 and in 2015
74.9 per cent of all marriages were performed by civil celebrants. A total of
85,115 marriages were performed by civil celebrants, and 28,419 by Ministers of
The Code of Practice for Marriage Celebrants requires marriage
celebrants to ‘prevent and avoid unlawful discrimination in the provision of
marriage celebrancy services’.
Only two of the 23 same-sex marriage Bills previously
presented to Parliament included an exemption for marriage celebrants. Similarly, very few overseas jurisdictions
provide civil celebrants with such an exemption.
The Exposure Draft Bill did however include an exemption that would allow all
Commonwealth marriage celebrants the right to refuse to solemnise a same-sex
marriage on both religious and conscientious grounds.
Some submitters to the Select Committee supported this exemption arguing that
marriage celebrants have an individual right to freedom of conscience and religion.
Many of those submitters who supported the exemption grounded their arguments
in the obligations Australia has to protect the religious freedom of
individuals under international law. 
Others opposed the exemption arguing that marriage celebrancy is a public
service where personal beliefs and considerations are irrelevant.
As noted above, currently there are two kinds of marriage
celebrants within the Commonwealth Marriage Celebrants Program: civil
celebrants and independent religious celebrants. In the discussions about
possible religious exemptions for marriage celebrants some submitters to the
Select Committee argued these two classes of celebrant should be separated into
two distinct categories. The Committee was supportive of this recommendation
and also proposed a pathway for current civil celebrants who are people of
faith, to elect to move into the group of independent religious celebrants.
The Bill takes up these Committee recommendations and proposes the introduction
of a new category of celebrants to be called ‘religious marriage celebrants’.
Proposed section 39DA provides that a person is
entitled to be identified as a religious marriage celebrant on the register of
marriage celebrants if:
person is registered as a marriage celebrant and
person is a minister of religion.
Proposed section 39DB provides for such a person to
give appropriate notice to the Registrar of his/her wish to be identified as a
religious marriage celebrant. The Registrar must identify such a person as a religious
marriage celebrant on the register if they are entitled to be registered and
notice has been provided (proposed section 39DC).
In addition, the Bill provides transitional arrangements for
existing marriage celebrants:
marriage celebrants from non-recognised denominations will be automatically
identified as religious marriage celebrants without being required to give
notice (proposed subsection 39DD(1))
registered marriage celebrants who are not ministers of religion would have 90 days
to notify in writing that based on their religious beliefs, they wish to be
identified as a religious marriage celebrant on the register (proposed subsection
Religious marriage celebrants therefore would include:
- ministers of religions from religious denominations that are not
recognised under the Marriage Act, and
- existing marriage celebrants who are not ministers of religion
but wish to perform marriages consistent with their religious belief.
Celebrants would be required to accurately identify
themselves as either a marriage celebrant or a religious marriage celebrant in
any documents relating to the services they provide, including any online and
paper advertisements and information (item 9, proposed paragraph 39G(1)(d)).
Items 10 to 17 deal with administrative procedures
involving marriage celebrants and religious marriage celebrants including
procedures regarding identification of celebrants on the register, right of
review and other registration requirements.
Religious marriage celebrants: exemptions or protections
The Bill at item 21, proposed
section 47A, provides that a religious marriage celebrant may refuse to
solemnise marriages if the celebrant’s religious beliefs do not allow the celebrant
to solemnise the marriage.
The Explanatory Memorandum explains that the majority of
religious marriage celebrants will be covered by the exemption under section 47
of the Marriage Act as they are ministers of religion. Section 47A will
the small number of religious marriage celebrants under the
transitional provisions in this Bill will also be able to solemnise marriages
in accordance with their religious beliefs.
It is of note that any new marriage celebrants registered
after the Bill commences will not be entitled to be identified as religious
marriage celebrants unless they are a minister of religion. Therefore, all
remaining and future marriage celebrants would be required to provide
non-discriminatory services and would not be entitled to refuse to solemnise a
marriage on the basis of their religious beliefs. The rationale for this
exclusion is that marriage celebrants are authorised to perform a function on
behalf of the state and should be required to uphold the Commonwealth law
No exemptions or protections on the grounds of conscientious
The Bill does not provide exemptions or protections based on
conscientious belief. In contrast, the Exposure Draft included such exemptions
both for ministers of religion and marriage celebrants.
The Select Committee however, based on the evidence received, concluded that
providing a right to refuse marriage on conscientious grounds was controversial
including due to a lack of precedent. The Committee noted in particular that to
allow conscientious belief to be used to allow discrimination against a class
of persons would be unprecedented under Australia law and therefore the
Committee was not inclined to disturb anti-discrimination law and practice.
In accordance with this view, the Bill does not provide
exemptions or protections for any group of authorised celebrants on the basis
of conscientious belief.
No exemptions or protections for state and territory
The Bill does not include exemptions or protections for
state and territory registrars, in relation to refusal to solemnise a marriage
on religious grounds. The rationale for excluding this group is that they are
authorised to perform a function on behalf of the state and should be required
to uphold the law.
Similarly, the Exposure Draft Bill did not include
exemptions for state and territory registrars and overseas same-sex marriages
laws generally do not include such an exemption.
Defence Force chaplains and marriage officers
As noted above, Part V of the Marriage Act provides a
separate regime for regulating overseas marriages of members of the Defence
Force. Amongst other things it allows Defence Force chaplains to solemnise
marriage where at least one of the parties is a member of the ADF and where the
marriage occurs in an overseas country.
The Bill proposes two main amendments to Part V. It
establishes a new category of officers to solemnise marriages of members of the
Defence Force overseas and provides religious protections for chaplains
permitting them to refuse to solemnise a marriage on religious grounds.
More specifically, proposed section 71A, at item
23 of the Bill, allows an officer authorised in writing by the Chief of the
ADF to solemnise marriages under Part V of the Marriage Act.
Proposed subsection 81(2), at item 48 of the
Bill, provides that a Defence Force chaplain (but not an officer) may refuse to
solemnise a marriage in conformity with their religion’s doctrine, their
religious beliefs, or in order to avoid injury to the susceptibilities of their
religious community. The provision is written in identical terms to the
exemption for ministers of religion provided in proposed subsection 47(3)
(discussed above). While chaplains are ministers of religion and may already be
entitled to an exemption under section 47, the Explanatory Memorandum argues
that replicating the exemption with specific application to chaplains will
Under the new arrangements chaplains could refuse to
solemnise a marriage on the grounds of religion, however officers authorised to
solemnise marriages who are not chaplains would be required to solemnise
marriages on a non-discriminatory basis.
Exemptions for services by bodies established for
Proposed section 47B, at item 21 of the
Bill, provides that a body established for religious purposes may refuse to
provide facilities, goods or services on a commercial or non-commercial basis
for the purposes of a marriage, or for purposes reasonably incidental to the
solemnisation of a marriage where the refusal:
- conforms to the body’s religious doctrine, tenets or beliefs or
is necessary to avoid injury to the religious susceptibilities of
adherents of that religion.
A ‘body established for religious purposes’ is defined to
have the same meaning as in section 37(1)(d) of the Sex Discrimination Act
(proposed subsection 47B(4)).
A purpose is ‘reasonably incidental’ to the solemnisation
of marriage if it is intrinsic to, or directly associated with the
solemnisation of the marriage (proposed subsection 47B(5)). According to
the Explanatory Memorandum, there must be a ‘close nexus’ between the
facilities, goods and services and the solemnisation of marriage.
The stated purpose of this provision is to enable bodies
established for religious purposes—defined in the same way as under the Sex
Discrimination Act—to maintain their own religious practices and
observances in relation to marriage while ensuring that non-religious
businesses provide facilities, good and services without discrimination.
The Explanatory Memorandum provides examples of how this
exemption would apply. In short, church halls, church premises or catering
services established by a church would be able to refuse on religious grounds a
same-sex marriage request for either a wedding ceremony or a wedding
reception. Florists, cake makers and drivers who do not work for a body
established for religious purposes would not be able to refuse their services.
The Explanatory Memorandum notes that this exemption is
consistent with existing religious exemptions in section 37 of the Sex
Section 37 of the Sex Discrimination Act contains
exemptions to discrimination laws for ‘religious bodies’ in defined
circumstances. Relevantly, the section also provides that nothing in Division 1
or 2 of Part II of that Act (which prohibit discrimination in work and other
areas, such as education, accommodation and the provision of goods and services)
any other act or practice of a body established for religious
purposes, being an act or practice that conforms to the doctrines, tenets or
beliefs of that religion or is necessary to avoid injury to the religious
susceptibilities of adherents of that religion.32
The exemption for religious bodies in section 37 applies to
a ‘body established for religious purposes’. This exemption would likely apply,
for instance, to a religious organisation refusing to make a church available
for the solemnisation of marriage between two persons not being a man and a
The Exposure Draft included a similar provision to section
47B in the Bill and a number of submissions to the Select Committee were
critical of this religious exemption. In
the view of these submitters, section 37 of the Sex Discrimination Act
already provides adequate protections for religious bodies and they reject the
idea that bodies providing commercial services incidental to a marriage should
have such an exemption.
In the Law Council’s view:
an organisation not established for
religious purposes, but connected with a religious body, which provides
commercial services incidental to the solemnisation of marriage, such as,
photographers and formal-wear providers, should not be able to rely on the
exemptions to unlawfully discriminate against persons on the grounds outlined
in Division 2 of the SDA.
The current provisions of the SDA are sufficient to protect
religious freedoms in the provision of goods and services and the making
available of facilities.
Furthermore, the Law Council and other submitters noted that
the Exposure Draft did not provide sufficient clarity around the meaning of
‘religious bodies and organisations’ in new section 47B. In the Law Council’s
view the inclusion of this provision would introduce ‘unnecessary complexity
The Australian Human Rights Commission also argued that in
the absence of any further justification from the Government for the need for
new section 47B, the exemption in section 37(1) of the Sex Discrimination
Act is sufficient, but that an explanatory note could be added to section
47 of the Marriage Act.
To provide clarity within the Marriage Act to bodies
established for religious purposes about the scope of their freedom to
discriminate, the Commission submits that consideration be given to including a
note at the end of section 47 to confirm that section 37(1)(d) of the Sex
Discrimination Act applies to the acts and practices of bodies established for
If proposed section 47B is inserted into the Marriage Act,
the Commission submits that consideration be given to inserting a definition of
a religious body or organisation that accords with section 37(1)(d) of the Sex
Section 40(2A) of the Sex Discrimination Act
In 2013 the Sex Discrimination Act was amended to
prohibit discrimination on the grounds of sexual orientation, gender identity
and intersex status in certain areas of life, including employment, education
and the provision of goods and services.
The amendments also extended the prohibition of discrimination on the existing
ground of ‘marital status’ to ‘marital or relationship status’, so as to
provide protection from discrimination to same-sex de facto couples.
At the time of these amendments, subsection 40(2A) was also
inserted into the Sex Discrimination Act introducing new
exemptions providing that the new discrimination protections on the grounds of
‘sexual orientation’, ‘gender identity’, ‘intersex status’ and ‘marital
relationship status’ would not apply to anything done by a person in compliance
with the Marriage Act.
Item 63 proposes to repeal and replace subsection
40(2A) to ensure consistency between the Sex Discrimination Act and
the new provisions in the Marriage Act. Proposed subsection 40(2A)
provides that ministers of religion, religious marriage celebrants and Defence
Force chaplains may refuse to solemnise a marriage on the prescribed religious
grounds despite the discrimination protections based on ‘sexual orientation’,
‘gender identity’, ‘intersex status’ and ‘marital relationship status’. The
effect is to make clear that such a refusal does not constitute unlawful
discrimination under the Sex Discrimination Act.
The Bill contains a number of consequential amendments
reflecting the updated definition of marriage.
For example, paragraph 23B(2)(b) of the Marriage Act
prohibits certain relationships including marriages between brothers and
sisters. Item 7 removes the words ‘a brother and a sister’ and replaces
them with the words ‘2 siblings’ to clarify that existing restrictions on
prohibited relationships apply regardless of sex or gender.
Subsection 45(2) of the Marriage Act specifies the
wording of the wedding vows that must be used in all marriages solemnised in
Australia, other than marriages that are solemnised in the presence of a
minister of religion.
Subsection 45(2) currently provides the following:
I call upon the persons here present to witness that I, A.B.
(or C.D.), take thee, C.D. (or A.B.), to be my lawful wedded wife (or husband).
Item 18 amends this sentence by adding the term
‘spouse’ to existing terms ‘husband or wife’. This amendment will enable
marrying couples to word their marriage vows in a manner that best reflects
Section 46 sets out the words of instruction that a
marriage celebrant must use in a wedding ceremony. Item 19 amends section
46 to reflect the updated definition of marriage in the Bill.
Item 1 inserts an objects clause (proposed section
2A) stating that an object of the Marriage Act is to create a legal
- to allow civil celebrants to solemnise marriage, understood as the union of two people to the exclusion of all
others, voluntarily entered into for life;
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
allow equal access to marriage while protecting religious freedom in relation
There is currently no objects clause in the Marriage
Act and this clause reflects very specifically the purpose of the Bill,
rather than the purpose of the Marriage Act as a whole.
Arguably the content of an objects clause is not
significant as a court will not use an objects clause to override what it
considers to be the clear and unambiguous text of an operative provision. However,
it may be preferable to draft this objects clause so that it more closely
aligns to the purpose of the Marriage Act as a whole.
An alternative might be to draft item 1 so that it
remains as the Objects clause within the amending Act rather than inserting it
into the principal Marriage Act.
For those who welcomed the result of the Postal Survey on
same-sex marriage, the fifteenth of November 2017 marked a day of celebration
and joy. It was also an historic day for the Parliament when Senator Dean Smith
tabled the Bill which would legalise same-sex marriage. While Parliamentary
debate began the following day in a spirit of warm bipartisanship, it should be
recorded that the Bill marks a long and difficult journey. It is the 23rd
same-sex marriage Bill introduced into the federal Parliament since 2004—those
Bills and the related issues consuming considerable resources of both the
Parliament and the Government. With the support of the Prime Minister, the Bill
is to be debated by the Parliament and its passage achieved before the
Christmas break. All politicians will be allowed a free or conscience vote.
Amendments are expected to be tabled in the final
parliamentary sittings for the year, although the extent and outcome of these
are unknown. The Bill is drafted to uphold the rights of all couples to marry
and to also protect the rights of religious institutions to continue to define
marriage according to their own doctrines. The key questions that are likely to
be debated are whether religious and conscience exemptions should be extended
and whether increases to general protections for religious freedom are
necessary. For some, the issues of human rights and religious freedom regarding
same-sex marriage should be resolved in this Bill. Others argue that this is a
debate for another time.
For those who are part of the LGBTI community the Bill is
immensely significant. Its passage will remove the remaining differences
between same-sex and heterosexual relationships and symbolically, it will be an
important sign of final acceptance and belonging.
information on these reforms can be found in the following Bills Digests (the
Bills for which were all enacted): M Neilsen and K Magarey, Same-sex
Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008,
Bills digest, 20, 2008–09, Parliamentary Library, Canberra, 2008; M
Neilsen, K Magarey and E Karlsen, Same-Sex
Relationship (Equal Treatment in Commonwealth Laws—General Law Reform) Bill
2008, Bills digest, 44, 2008–09, Parliamentary Library,
. Commonwealth v Australian Capital Territory (2013)
250 CLR 441, 
Bureau of Statistics (ABS), ‘National results’, ABS
. R Croome, ‘The promise of belonging: sexual refugees no longer’, Griffith Review, Spring 2013.
further information on the Marriage Act see: Neilsen, Same-sex
marriage, op. cit., pp. 6–7.
. G Barwick, ’The Commonwealth Marriage Act 1961’, Melbourne
University Law Review, 3, 1961–62, p. 277, quoted in O Rundle, ‘An
examination of relationship registration schemes in Australia’ ’, Australian
Journal of Family Law, 25, 2011, p. 126.
. Ibid., p. 127.
the definition of ‘marriage’ in subsection 5(1) of the Marriage Act.
. Marriage Amendment
. K Haines, Marriage
Amendment Bill 2004, Bills digest, 5, 2003–04, Parliamentary Library,
Canberra, 2004, p. 3.
. A Nicholson, ‘The
legal regulation of marriage’, Melbourne University Law Review, 29,
2005, p. 557.
further detail see: Neilsen, Same-sex marriage, op. cit.
Hurst, ‘Same-sex marriage: disappointment and anger as Coalition party room
rejects free vote’, The Guardian, 11 August
Abbott (Prime Minister) and P Hendy (Federal Member for Eden Monaro), Visit
to Green Army river corridor and urban bushland restoration project;
Australia's 2030 emissions reduction target; same-sex marriage, transcript
of joint doorstop interview, Queanbeyan, 12 August 2015.
Hutchens, ‘Turnbull suggests marriage equality plebiscite may be delayed until
2017’, The Guardian, 18 July
Memorandum, Plebiscite (Same-Sex Marriage) Bill 2016, p.
Harris, ‘Marriage plebiscite is simply an expensive opinion poll’, The Canberra Times, 2 July 2016, p. 7.
Grattan, ‘Managing same-sex marriage plebiscite would be a challenge for
Turnbull within his own ranks’, The Conversation,
22 June 2016.
Neilsen, Plebiscite (Same-Sex Marriage) Bill 2016, Bills digest, 22, 2016–17, Parliamentary Library,
Canberra, 2016, p. 7.
of Australia, ‘Plebiscite
(Same-Sex Marriage) Bill 2016 homepage’, Australian Parliament website.
. Ibid., D McKeown, Chronology, op. cit.
Cormann (Minister for Finance, Acting Special Minister of
State), Commitment to a National Plebiscite on same sex marriage, media release, 8 August 2017.
. Census and Statistics
(Statistical Information) Direction 2017.
. Advance to the Finance
Minister Determination (No. 1 of 2017-2018). The Determination was made
under section 10 of the Appropriation Act
(No. 1) 2017-2018.
v The Commonwealth; Australian Marriage Equality Ltd v Cormann, 
‘Australian marriage law postal
survey, ABS website.
Australian marriage law postal survey,
. ABS, Australia supports changing the law to allow same-sex couples to marry, media release, ABS website, 15 November 2017.
. M Turnbull (Prime Minister) ‘Transcript of press conference with Senator the Hon. Mathias
Cormann’, media release, 15 November 2017.
. B Shorten (Leader of the Opposition), Address to the marriage equality result event, Melbourne, media release, 15 November 2017.
. N Mahoney, ‘Postal survey ends
don't justify means’, Eureka Street, vol 27, no. 22, 16 November
. G Brandis
Draft of the Marriage Amendment (Same- Sex Marriage) Bill, media
release, 10 October 2016.
Dreyfus (Shadow Attorney-General) and T Butler (Shadow Minister for Equality), Marriage
Act amendments entrench discrimination, joint media release, 11 October
. L Pratt, Notice of Motion: Select Committee on the Exposure Draft of the
Marriage Amendment (Same-Sex Marriage) Bill: appointment, Senate, Debates, 30 November 2016, p. 3805.
Select Committee on the Exposure Draft of the Marriage Amendment
(Same-Sex Marriage) Bill, Submissions, Australian Parliament website.
. Senate Select Committee on the Exposure Draft of the
Marriage Amendment (Same-Sex Marriage) Bill, (Senate Select Committee), Report on the Commonwealth Government's Exposure Draft of the Marriage
Amendment (Same-Sex Marriage) Bill, 15 February 2017.
. D Smith, Marriage
Amendment (Definition and Religious Freedoms) Bill 2017, media release,
6 August 2017.
of Motion: Marriage Amendment (Definition and Religious Freedoms) Bill 2017,
Senate, Debates, (proof), 15 November 2017, p. 74.
. For example, see M Neilsen, Same-sex marriage: issues for the 44th Parliament, op. cit.
. P Karp, ‘Same-sex
marriage bill does not hinder religious freedom, says Turnbull’, The Guardian,
17 November 2017.
. P Coorey, ‘Nats
plotting payback for same-sex bill’ The Australian Financial Review,
17 November 2017. It was reported that these amendments are an attempt to
reconcile opposition to the Bill by conservative members of the Coalition. In
the week prior to the Postal Survey results announcement, Liberal Senator James
Paterson circulated an alternative Bill, the Marriage
Amendment (Definition and Protection of Freedoms) Bill 2017 [draft], containing
amendments to further protect the rights of individuals and marriage celebrants
in relation to same-sex marriage, (See also the Explanatory
Memorandum for the Bill). This Bill was heavily criticised and withdrawn on
15 November. See, for example: Law Council of Australia, It's
a 'yes' for marriage equality! Now for legislation that does not discriminate,
media release, 15 November 2017; M Koziol, ‘Ministers
reject bill protecting religious beliefs’, The Canberra Times, 14
November 2017, p. 7.
. Coorey, ‘Nats
plotting payback for same-sex bill’,op. cit.; J Massola, ‘Conservatives
swing behind marriage but insist on protections’, The Sydney Morning
Herald, 17 November 2017; Karp, ‘Same-sex
marriage bill does not hinder religious freedom, says Turnbull’, op. cit.
. K Barlow, ‘Where
politicians sit on the Free Vote after the same sex marriage YES result’, The
Huffington Post Australia, 15 November 2017.
. P Karp, ‘Labor rules out extra religious freedoms in same-sex marriage bill’, The Guardian (Australia), 15 November 2017.
. P Wong, ‘Second
reading speech: Marriage Amendment (Definition and Religious Freedoms) Bill
2017’, Senate, Debates, (proof), 16 November 2017, p. 4.
. A Pratt, ‘Second
reading speech: Marriage Amendment (Definition and Religious Freedoms) Bill
2017’, Senate, Debates, (proof), 16 November 2017, p. 12.
. Barlow, ‘Where
politicians sit on the Free Vote after the same sex marriage YES result’, op.
. J Rice, ‘Second
reading speech: Marriage Amendment (Definition and Religious Freedoms) Bill
2017,’ Senate, Debates, (proof), 16 November 2017,
. A Greenwich and A Brown, ‘After the survey, we need a prompt path to legislation’, The Guardian (Australia), 17 October 2017.
Human Rights Commission, Human
Rights Commission welcomes marriage postal survey result, media
release, 15 November 2017.
Freedom protections in new same sex marriage proposals: too few, too narrow’ 7 August 2017, Law and Religion blog.
set for fight that could take decades’ The Sydney Morning Herald, 16
for Marriage (Coalition for Marriage Australia),’Thank you to the millions of
Australians who voted No’. Facebook update, 14 November 2017, https://www.facebook.com/CoalitionForMarriageAustralia.
Statement of Compatibility with Human Rights can be found at page 19 of the Explanatory
Memorandum to the Bill.
. The views put to the 2009 Committee inquiry were
summarised in M Neilsen, ‘Same-sex
note, 10 February 2012, Parliamentary Library.
Law Reform Commission (ALRC), Traditional
Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Report 129),
2016, paragraph 5.1.
. Ibid., paragraph 5.79.
. The relevant sections of the Sex Discrimination Act
are: section 23(3)(b), which allows discrimination in the provision of
accommodation by religious bodies; section 37, which allows discrimination in
the ordination or appointment of priests, ministers of religion or members of
any religious order, the training or education of persons seeking ordination or
appointment, the appointment of persons to perform religious duties or
functions, and any other act or practice of a body established for religious
purposes that ‘conforms to the doctrines, tenets or beliefs of that religion or
is necessary to avoid injury to the religious susceptibilities of adherents of
that religion’; and section 38, which allows discrimination by educational
institutions established for religious purposes in relation to the employment
of staff and the provision of education and training, provided that the
discrimination is in ‘good faith in order to avoid injury to the religious
susceptibilities of adherents of that religion’.
. ALRC, Traditional
Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Report 129), op. cit., paragraph 5.81
. Australian Capital Territory (Discrimination
New South Wales
Northern Territory ( Anti-Discrimination
Act); Queensland (Anti-Discrimination
South Australia (Equal
Opportunity Act 1984);
Victoria (Equal Opportunity Act 2010); Western Australia (Equal Opportunity Act, 1984).
. Australian Human Rights Commission (AHRC), ‘A quick guide to Australian discrimination laws’, AHRC website.
. ALRC, Traditional
Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Report 129), op. cit., paragraph 5.91.
. Ibid., paragraph 5.7.
. Senate Select Committee, Report, op. cit., paragraph 3.141.
. Ibid., paragraph 3.142.
. F Brennan, ‘Same-sex
marriage and freedom of religion’, Eureka Street, 9 November
. Ibid. See section 14 of the Human Rights Act 2004 (ACT) and
section 14 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
. G Williams, ‘Religious
liberty needs better protection, but only in a law that also recognises other
rights’, Canberra Times, 21 November
Turnbull (Prime Minister), Ruddock
to examine religious freedom protection in Australia, media release, 22
definition is essentially the same as the definition used in the Canadian Civil
Marriage Act 2005. Submissions to the 2012 Committee inquiry into the
same-sex marriage Bills recommended the Canadian model and suggested that
drafting the definition in these terms without reference to sex, sexual
orientation, or gender identity was to be preferred. Law Council of Australia,
to the Inquiry into the Marriage Amendment Bill 2012 and Marriage Equality
Amendment Bill 2012, Submission 22, paragraphs 46– 47.
. Explanatory Memorandum, Marriage Amendment (Definition
and Religious Freedoms) Bill 2017, p. 5.
. Schedule 1, subitem 70(2).
. Explanatory Memorandum, Marriage Amendment (Definition
and Religious Freedoms) Bill 2017, p. 14.
5(1) of the Marriage Act.
. For example, Senate Select Committee, Report, op. cit.,
example, Gilbert & Tobin Centre of Public Law, Submission to the Inquiry
into the Marriage Amendment Bill 2012 and Marriage Equality Amendment Bill 2012,
Submission 2, p. 2, quoted in M Neilsen, Marriage Amendment Bill 2012 [and] Marriage Equality Amendment Bill
2012 [and] Marriage Equality Amendment Bill 2010, Bills digest, 158, 2011–12, Parliamentary Library, Canberra, 2012.
. See item 5 of the Exposure Draft Bill. Note the provision
also provided for refusal based on conscientious beliefs, discussed below.
Memorandum, Marriage Amendment (Definition and Religious Freedoms) Bill
2017, p. 15.
1, item 20.
Memorandum, Marriage Amendment (Definition and Religious Freedoms) Bill
2017, p. 9.
. M Neilsen, Marriage
Amendment (Celebrant Administration and Fees) Bill 2014 [and] Marriage
(Celebrant Registration Charge) Bill 2014, Bills digest, 56, 2013–14,
Parliamentary Library, Canberra, 2014, pp. 4–5.
. Australia Government, Attorney-General’s Department, Marriage
Celebrants Programme statistics, AGD website, April 2017.
. ABS, ‘3310.0
- Marriages and Divorces, Australia, 2015’, ABS website, latest issue 30
. Australian Government, Attorney General’s Department, The
Code of Practice for Marriage Celebrants, AGD website.
. These were the two Bills introduced by Senator David Leyonhjelm: Freedom to Marry Bill 2014 and the Freedom
to Marry Bill 2016. The Bills excluded from the exemption
state and territory marriage registrars, the rationale being that authorised
celebrants in the employ of the state should not be able to discriminate.
Zealand has an exemption for civil celebrants. See: Australian Human Rights
to the Senate Select Committee on the Exposure Draft of the Marriage Amendment
(Same-Sex Marriage) Bill, Exposure Draft of the Marriage Amendment (Same-Sex
Marriage) Bill, 2017, [submission no. 72], p. 34.
. See item 6 of the Exposure Draft Bill.
. Senate Select Committee, Report, op. cit., p. 16.
. Proposed sections 39DA to 39DE, at item 8.
Memorandum, Marriage Amendment (Definition and Religious Freedoms) Bill
2017, p. 10.
. Items 5 and 6 of the Exposure Draft Bill.
. Senate Select Committee, Report, op. cit., p. 62.
. An officer shares the same meaning in as the Defence Act 1903, where it is
defined as either a chaplain in the ADF or a person appointed as an officer of
the Navy, Army or Air Force of a certain rank.
Memorandum, Marriage Amendment (Definition and Religious Freedoms) Bill
2017, p. 13.
. Division 2 of the Sex Discrimination Act prohibits
discrimination in the provision of goods and services or in the making
available of facilities on the grounds of a person’s sex, sexual orientation,
gender identity, intersex status, marital or relationship status, pregnancy or
potential pregnancy, or breastfeeding.
Council of Australia, Submission
to the Senate Select Committee on the Exposure Draft of the Marriage Amendment
(Same-Sex Marriage) Bill, Exposure Draft of the Marriage Amendment (Same-Sex
Marriage) Bill, 2017, [submission no. 74], p. 12.
. Senate Select Committee, Report, op. cit., p.31.
Council of Australia, Submission
to the Senate Select Committee on the Exposure Draft of the Marriage Amendment
(Same-Sex Marriage) Bill, op. cit., pp. 12-13.
Submission, op. cit., p. 25.
. Sex Discrimination
Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.
For information on this Act see J Tomaras, Sex
Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex
Status) Bill 2013, Bills digest, 155, 2012–13, Parliamentary Library,
. The vows required to be used for a marriage solemnised by
a minister of religion are determined by the minister’s religion. See subsection 45(1)
of the Marriage Act.
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