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House of Representatives

Marriage Amendment (Definition and Religious Freedoms) Bill 2017

Revised Explanatory Memorandum

(Circulated by authority of Senator Smith)
This memorandum takes account of amendments made by the House of Representatives to the bill as introduced.

General Outline

1. This Bill amends the Marriage Act 1961 (Cth) to remove the restrictions that limit marriage in Australia to the union of a man and a woman. The Bill will allow two people the freedom to marry in Australia, regardless of their sex or gender. The Bill also recognises foreign same-sex marriages in Australia. The requirements for a legally valid marriage otherwise remain the same under the Marriage Act.

2. Throughout this Explanatory Memorandum, reference is made to 'same-sex marriage'. The term 'same-sex marriage' should be read to include a marriage of two people regardless of their sex or gender, where the union is not that of a man and a woman.

3. Under paragraph 51(xxi) of the Constitution of Australia, the Commonwealth has the power to make laws relating to marriage. The High Court of Australia confirmed that this power includes the power to make laws relating to same-sex marriage in The Commonwealth v Australian Capital Territory [2013] HCA 55.

4. In summary, the Bill includes amendments to:

redefine marriage as 'a union of 2 people, to the exclusion of all others, voluntarily entered into for life'
confirm that the requirements for a legally valid marriage otherwise remain the same under the Marriage Act, by introducing non-gendered language to ensure these requirements continue to apply equally to all marriages. It will continue to be the case that a marriage will be void if any of the following situations apply:

one or both parties are already legally married,
the parties are in a 'prohibited relationship'. A prohibited relationship includes a relationship between siblings, and a parent-child relationship (including an adoptive parent-child relationship),
one or both parties did not provide real consent, or
one or both parties are not of marriageable age, which is generally 18 years of age or older,

enable same-sex marriages that have been, or will be, solemnised under the law of a foreign country, to be recognised in Australia,
identifying religious marriage celebrants on the register of marriage celebrants as a new category including:

ministers of religions from religious denominations that are not recognised under the Marriage Act (e.g. independent religious organisations), and
existing marriage celebrants wanting to perform marriages consistent with their religious beliefs,

establish a new category of officers to solemnise marriages of members of the Australian Defence Force overseas, and
protect religious freedoms in relation to marriage:

ministers of religion will be able 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 (e.g. marriages of same-sex, previously divorced or inter-faith couples),
a new category of religious marriage celebrants will be able to refuse to solemnise a marriage where their religious beliefs do not allow them to do so,
bodies established for religious purposes will be able to refuse to provide facilities, goods or services consistently with their religion's doctrine or if this refusal conforms with religious doctrine, tenets or beliefs or is necessary to avoid injury to the feelings of their religious communities. This is consistent with existing religious exemptions in section 37 of the Sex Discrimination Act 1984 (Cth).

5. The Bill amends the Sex Discrimination Act to give full effect to the religious exemptions contained in the Bill by extending the exemption from Divisions 1 and 2 of Part II of the Sex Discrimination Act for people whose conduct is in direct compliance with the Marriage Act, to also capture conduct authorised by the Marriage Act. The exemptions specifically reference the protections in the Bill for ministers of religion, religious marriage celebrants, Defence Force chaplains and bodies established for religious purposes providing goods or services, or hiring facilities.

6. Parts 3 and 4 of Schedule 1 of the Bill provides for amendments to the Marriage Act allowing for the commencement of the Bill's amendments either before or after the commencement of the Civil Law and Justice Legislation Amendment Bill 2017, which also proposes to amend the Marriage Act.

7. Part 5 of Schedule 1 of the Bill provides the application provisions necessary to support the commencement of these amendments and transitional provisions for foreign marriages not recognised in Australia prior to these amendments to be recognised.

8. Schedule 2 of the Bill makes additional amendments to the Sex Discrimination Act to repeal the exemption from anti-discrimination law in relation to refusals to make, issue or alter an official record of a person's sex, if a law of a state or territory requires, because the person is married.

9. Schedule 3 of the Bill provides for consequential amendments to 20 pieces of Commonwealth legislation to ensure consistency and support the changes made by the Bill. These amendments are intended to ensure that provisions in Commonwealth legislation that apply to married persons apply to all those who are married under, or whose marriage is recognised in accordance with, the Marriage Act 1961 as amended by the Bill. The amendments in Schedule 3 are generally straightforward in nature, and amend gendered terms and definitions used in other Acts that would ensure equal treatment of all married couples, including same-sex couples.

10. Schedule 4 to this Bill provides additional application and transitional provisions relating to family law and other matters.

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