House of Representatives

Revised Explanatory Memorandum

(Circulated by authority of Senator Smith)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Marriage Amendment (Definition and Religious Freedoms) Bill 2017

The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The objective of the Bill is remove the restrictions that limit marriage in Australia to the union of a man and a woman, and to allow two people the freedom to marry in Australia, regardless of their sex or gender. To achieve this, the Bill amends the Marriage Act 1961:

1.

to allow all couples to marry and to have their marriages recognised regardless of their sex, sexual orientation, gender identity or intersex status

2.

to allow ministers of religion, religious marriage celebrants, chaplains and bodies established for religious purposes to refuse to solemnise or provide facilities, goods and services for marriages on religious grounds.

Human rights implications

The Bill engages the following rights:

•

rights to equality before the law and to non-discrimination, which the Bill promotes.

The rights to equality and non-discrimination are contained in Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which provide that all persons are equal before the law and are entitled to the equal protection of the law without discrimination on any ground.

By defining marriage as the union of '2 people' rather than 'a man and a woman', the Bill allows couples to marry regardless of their sex or gender. The Bill also allows for recognition of foreign marriages between two adults under Australian law, regardless of sex or gender. The Bill provides all people in Australia with equal rights with respect to marriage, removing discrimination on the basis of sexual orientation, gender identity, or intersex status.

•

the right to marry and found a family, which the Bill promotes.

The right to marry and to found a family is contained in Article 23 of the ICCPR. Under current human rights instruments and jurisprudence, including the United Nations Human Rights Committee decision in Joslin v New Zealand, the right to marry does not oblige states to legislate to allow same-sex couples to marry. However, it is clear that there are no legal impediments to Australia taking this step.

By providing the ability to lawfully marry to all couples, the Bill more accurately recognises the diversity of relationships and families in the Australian community, and ensures their equal status under Commonwealth law. The Bill retains the existing consent, marriageable age and prohibited relationship requirements for intended spouses under the Marriage Act, consistent with Article 23 of the ICCPR.

By enabling the recognition of foreign same-sex marriages under Australian law, the rights and responsibilities pertaining to the dissolution of those foreign marriages will apply equally to all lawful marriages, in accordance with Article 23 of the ICCPR. These measures in the Bill protect and promote the right to respect for the family.

•

the right to freedom of thought, conscience and religion or belief, which the Bill limits to a permissible extent.

Article 18(1) of the ICCPR provides for the right to freedom of thought, conscience and religion. This right includes the freedom to have or adopt a religion or belief of choice, and freedom to manifest a religion or belief in worship, observance, practice and teaching. Article 18(3) of the ICCPR provides that freedom to manifest one's religion or beliefs may be subject only to limitations under law that are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. Where freedom of thought or conscience, or to have a religion or belief are protected unconditionally, the manifestation of religion or belief are subject to limitations under the ICCPR.

All Australians are free to choose their religion and are able to express and practise their religion and their beliefs without intimidation and without interference, as long as those practices are within the framework of Australian law and do not limit the rights and freedoms of others.

The Marriage Act regulates legal marriages and provides a framework by which religious marriages can have legal status if certain requirements are met. There are a diverse range of community views on the definition of marriage, including those of religious groups. Marriage is closely tied with religious belief and practice. A marriage ceremony can involve religious rituals and recitation of religious passages within a place of worship primarily built and retained for people of faith to practise their religion. Where there is a close and direct connection between religious belief and the conduct of religious marriage ceremonies, the Bill allows for religious organisations and people of faith to carry out marriages and related religious activities in a manner that accords with their faith. The Bill allows this to occur even when this involves a refusal to solemnise a same-sex marriage or to provide facilities, goods and services for same-sex marriages.

The Bill allows ministers of religion to refuse to solemnise marriages on religious grounds - where in accordance with their religion's doctrines, tenets and beliefs, where necessary to avoid injury to the religious susceptibilities of adherents of that religion, or where the minister's religious beliefs do not allow the minister to solemnise the marriage.

The Bill extends this protection for existing marriage celebrants (but not celebrants registered after commencement) if they elect to register as religious marriage celebrants, in order to allow for a smooth transition to the new legislative framework. This maintains a clear distinction between those celebrants performing civil ceremonies in accordance with civil law, and celebrants performing marriages in accordance with religious beliefs.

The Bill also allows ministers of religion not from recognised denominations and existing marriage celebrants who request to register as a religious marriage celebrant to refuse to solemnise a marriage where the religious marriage celebrant's religious beliefs do not allow this.

The Bill further provides that a body established for religious purposes may refuse to make a facility available, or provide goods or services, for the purpose of the solemnisation of a marriage on religious grounds, or for purposes reasonably incidental to the solemnisation of a same-sex marriage. The refusal must conform to the doctrines, tenets or beliefs of the religious body or organisation, or be necessary to avoid injury to the religious susceptibilities of adherents of that religion.

These religious exemptions are consistent with sections 40(2A) and 37(1)(d) of the Sex Discrimination Act.

The Bill requires marriage celebrants who are not religious marriage celebrants or ministers of religion to perform marriages in accordance with civil law, regardless of their personal beliefs. Further, the Bill re-introduces the category of marriage officers within the Australian Defence Force who will be able to solemnise marriages of Australian Defence Force officers overseas. This amendment will ensure that members of the Australian Defence Force will have a secular (non-religious) option to marry available to them.

The limitation imposed by the Bill is permissible because:

1.

The Bill addresses a legitimate objective in that extending the operation of the Marriage Act to same sex couples is a pressing and substantial public concern. In 2013, the Commonwealth Parliament passed amendments to the Sex Discrimination Act to make discrimination on the grounds of sexual orientation, gender identity and intersex status unlawful in many areas of public life, but specifically excluded anything done by a person in direct compliance with the Marriage Act. There is a pressing need to ensure that the Marriage Act is non-discriminatory in its operation, evidenced by numerous reports and consistent majority support for same-sex marriage in polls and surveys.

2.

The limitation is

a.

reasonable, in that it is clear and precise in the scope of its operation. Ministers of religion, chaplains and religious marriage celebrants may refuse to marry same-sex couples. However, state and territory registry officers, civil marriage celebrants and military officers authorised to perform marriages overseas will not be able to refuse to solemnise a marriage which is lawful under the Marriage Act because of a person's sex, gender, race, disability, age or other attribute protected under anti-discrimination law.

The Bill ensures that authorised celebrants must accurately describe and advertise their services (e.g. a religious marriage celebrant must advertise as a religious marriage celebrant) to ensure couples contacting a celebrant will be aware of whether a celebrant can or cannot lawfully refuse to solemnise their marriage. Couples in the community will be able to identify and engage the services of authorised celebrants appropriate for their intended marriage ceremony.

Similarly, couples will be able to engage providers of facilities, goods and services appropriate for their marriages. The Bill uses the same definition as the Sex Discrimination Act to ensure that bodies established for religious purposes can lawfully refuse to provide facilities, goods or services for a marriage on religious grounds. In contrast, service providers and commercial businesses that are not established for religious purposes cannot lawfully refuse to provide facilities, goods or services to a couple where this would amount to unlawful discrimination.

It is reasonable that this exemption is restricted to religious organisations rather than commercial businesses or individuals, because the hiring of facilities and delivery of goods and services is connected to marriage but one step removed from the solemnisation of the marriage itself.

b.

necessary, in that without the limitation the Bill would not achieve the objective, and

c.

proportionate, in that the Bill accommodates the right to religion to the greatest extent possible while still achieving the objective; that is, the Bill adopts the least rights-restrictive means of achieving its objective. The Bill protects the manifestation of religion or belief in so far as this belief is manifested in religious marriage ceremonies and marriage related activities provided by religious organisations such as receptions held at Church halls. This is because marriage ceremonies and celebrations are closely linked to the rituals and practices of religion. However, the performance of marriage ceremonies by marriage celebrants on behalf of the state is not sufficiently closely connected to the observance, practice, worship or teaching of religion or belief in order to justify the limitation on the right to non-discrimination. A personal moral objection to same-sex marriage is also not a sufficient basis to permit discrimination in marriage ceremonies or marriage related services.

Conclusion

The Bill is therefore compatible with human rights because it advances the protection of human rights, particularly the rights to equality and non-discrimination, while protecting the right to freedom of thought, conscience and religion or belief. To the extent that it may also limit these rights, those limitations are reasonable, necessary and proportionate.