Establishment and terms of reference
On 30 November 2016, the Senate established the Select Committee on the
Exposure Draft of the Marriage Amendment (Same‑Sex Marriage) Bill (committee)
to inquire into and report on the exposure draft of the Marriage Amendment
(Same-Sex Marriage) Bill (Exposure Draft), by 13 February 2017, with
particular reference to:
- the nature and effect of proposed exemptions for ministers of religion,
marriage celebrants and religious bodies and organisations, the extent to which
those exemptions prevent encroachment upon religious freedoms, and the
Commonwealth Government's justification for the proposed exemptions;
the nature and effect of the proposed amendment to the Sex
Discrimination Act 1984 and the Commonwealth Government's justification for
potential amendments to improve the effect of the bill and the
likelihood of achieving the support of the Senate; and
whether there are to be any consequential amendments, and, if so, the
nature and effect of those consequential amendments, and the Commonwealth
Government's justification for them.
The Senate subsequently extended the tabling date to 15 February 2017.
The Attorney-General, Senator the Hon. George Brandis QC, released the
Exposure Draft on 10 October 2016, explaining that it would 'form the basis for
ongoing consultations should the same-sex marriage plebiscite go ahead'.
Following the release of the Exposure Draft, the legislation to establish a
plebiscite—the Plebiscite (Same-Sex Marriage) Bill 2016—was defeated in the
As such, the Exposure Draft has not been introduced into the Parliament.
Instead, the Senate decided to refer the Exposure Draft to the committee for
inquiry as a matter of public policy and to progress political and legislative
debate on the legalisation of same-sex marriage in Australia. The committee resolved
therefore to identify broad areas of agreement and areas for further debate by a
Conduct of the inquiry
The committee advertised the inquiry on its website and wrote to a
number of organisations and individuals, inviting submissions by 13 January 2017.
In response, the committee received approximately 4800 submissions to the
At the start of the inquiry, the committee resolved to accept only
submissions that strictly addressed the terms of reference, with a particular
focus on the following areas:
the proposed exemptions in the Exposure Draft for ministers of
religion, marriage celebrants, and religious bodies and organisations to refuse
to conduct or solemnise marriages, and the extent to which those exemptions
prevent encroachment upon religious freedoms;
the nature and effect of the proposed amendment to the Sex
Discrimination Act 1984 (Cth) (Sex Discrimination Act); and
whether there should be any consequential amendments to the bill,
or any other Act, and, if so, the nature and effect of those consequential
In line with this resolution, about 400 submissions were published on
the committee's website. These submissions are listed in Appendix 1.
A further approximately 1200 submissions were categorised as submissions
expressing general support for, or opposition to, the Exposure Draft. Many of
these general statements did not refer to the provisions in the Exposure Draft,
nor did they address or provide commentary on the substantive issues that the
For administrative purposes, about 3200 submissions were categorised as
'form letters' (or variations of form letters).
In general, these submissions presented submitters' views on same-sex marriage and
expressed general support for, or opposition to, the Exposure Draft. The
majority of form letters did not, however, contain substantive commentary.
The committee held public hearings for this inquiry on 23 January 2017
in Melbourne, 24 January 2017 in Sydney, and 25 January 2017 in Canberra. The witnesses
who appeared before the committee are listed in Appendix 2.
The committee thanks all the organisations and individuals who made
submissions, and who gave evidence to assist the committee in its deliberations
on the Exposure Draft. The committee appreciates that the inquiry has been
undertaken within a short time frame.
This report uses terminology contained in the Exposure Draft and in the
terms of reference for the inquiry. The committee acknowledges that some of
this terminology is not ideal. For example, 'same-sex' is not an inclusive
term, 'sex' is not consistently defined in federal, state and territory laws,
and 'exemption' is not a term used in federal anti-discrimination law. The
committee recognises and bears in mind the limitations of this terminology. In
addition, the report interchangeably uses the terms 'human rights' and
It should also be noted that at no point in the Exposure Draft is the
word ‘exemption’ used. Instead, this term has been used as short hand to
describe the protection of religious organisations and individuals from claims
under anti-discrimination law, which is the legal effect of key clauses in the
Key provisions of the Exposure Draft
The Exposure Draft comprises one schedule of amendments to the Marriage
Act 1961 (Cth) (Marriage Act) and the Sex Discrimination Act, with application
and transitional provisions. The key features are:
definition change—the definition of 'marriage' would change to
mean 'the union of 2 people to the exclusion of all others, voluntarily
entered into for life' (amended subsection 5(1) of the Marriage Act);
the current exemption for ministers of religion would be amended,
and introduced for marriage celebrants, to allow a specific right to
refuse to solemnise same-sex marriages based on 'conscientious or religious beliefs'
(proposed new subparagraph 47(3)(b)(iii) and proposed new subsection 47A(1) of
the Marriage Act, respectively);
in the case of ministers of religion, refusals to solemnise
same-sex marriages could also be based on conformity with religious doctrines,
tenets or beliefs, or to avoid injury to the religious susceptibilities of
adherents of the minister's religion (proposed new subparagraphs 47(3)(b)(i)-(ii)
of the Marriage Act);
on these same grounds, religious bodies and religious
organisations would be granted the right to refuse facilities, goods or
services for, or reasonably incidental to, the solemnisation of a same‑sex
marriage (proposed new subsection 47B(1) of the Marriage Act);
recognition of foreign same sex marriages—foreign same‑sex
marriages would be recognised in Australia, provided they comply with
Australian law (repeal of section 88EA of the Marriage Act);
sex discrimination and authorised acts—any refusals to solemnise
a same‑sex marriage would not constitute unlawful sex discrimination
(amended subsection 40(2A) of the Sex Discrimination Act).
Focus of the inquiry and structure of the report
Same-sex marriage has been on the social and political agenda for many
years, as a complex and controversial issue that raises human rights and
constitutional law issues, as well as social, religious, moral and political questions.
The current inquiry focuses on the key provisions in the Exposure Draft (chapter
two) and their compliance with Australia's international human rights
obligations (chapter three).
Note on references
References to the committee Hansard are to the proof Hansard.
Page numbers may vary between the proof and the official Hansard
Navigation: Previous Page | Contents | Next Page