Marriage Amendment (Definition and Religious Freedoms) Bill 2017

Second Reading Speech

Senator SMITH (Western Australia-Deputy Government Whip in the Senate)

I move:

That this bill be now read a second time.

I seek leave to table an explanatory memorandum relating to the bill.

Leave granted.

Senator SMITH: I table an explanatory memorandum and I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows-

This bill amends the Marriage Act 1961 to remove the restrictions that limit marriage in Australia to the union of a man and a woman. The bill will allow two people to marry in Australia, regardless of their sex or gender.

The bill will also recognise foreign same-sex marriages in Australia.

The requirements for a legally valid marriage otherwise remain the same under the Marriage Act.

It will continue to be the case that a marriage is void if one or both parties are already legally married, the parties are in a 'prohibited relationship' (siblings, a parent-child relationship), one or both parties did not provide real consent, or one or both parties are not of marriageable age.

The architecture of the bill has been informed following the report of the Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill.

This bill further refines and improves the exposure draft legislation to more accurately reflect community attitudes expressed through the senate committee process.

The Senate select committee report identified a broad desire and willingness from parties (including pro-same-sex marriage groups) to protect religious freedom in respect to marriage in any future same-sex marriage legislation.

The Senate report identified considerable consensus for a continuation of exemptions for ministers of religion and to create a new category of religious marriage celebrants. There was also consensus agreement that any laws or exemptions need not single out same-sex couples. The Senate committee also proposed a pathway for current civil celebrants to become religious marriage celebrants, while all remaining and future civil celebrants would continue to provide non-discriminatory services.

The Senate report did not recommend introducing controversial new provisions which lack precedent within Australia's legal framework (conscientious belief, a 'no detriment' clause, exemptions for individuals). In keeping with the consensus reached by the Senate select committee, this bill does not include these provisions.

Australia's marriage laws have been amended on 20 occasions since the introduction of the Marriage Act.

These latest proposed amendments will insert an 'objects clause' which will create a legal framework 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 to marriage.

The bill will allow a minister of religion to refuse to solemnise a marriage if that refusal conforms to the doctrines, tenets or beliefs of the minister's religion.

This would allow ministers of religion to refuse to solemnise a same-sex marriage where the minister's religion only allows heterosexual couples to marry.

The bill will create a new category of religious marriage celebrants.

This new category will include:

existing civil marriage celebrants wanting to perform marriages consistent with their religious beliefs; and
ministers of religion that perform marriages for religious denominations that are not recognised, such as independent religious organisations and smaller, emerging religious groups.

This new category of religious marriage celebrant will be able to refuse to solemnise a marriage on grounds that the religious marriage celebrant's religious beliefs do not allow them to solemnise the marriage.

The bill will require marriage celebrants who are not religious marriage celebrants - colloquially referred to as civil celebrants - to perform same-sex marriages and will be subject to existing anti-discrimination laws.

The bill will also establish a new category of marriage officer to solemnise marriages of members of the Australian Defence Force overseas, as proposed in the Senate report.

The bill will allow bodies established for religious purpose to be able to refuse to make a facility available or provide goods and services, for the purposes of, or reasonably incidental, to the solemnisation of a marriage.

Consistent with existing anti-discrimination law, the refusal must conform to the doctrines, tenets or beliefs of the religion of that body or be necessary to avoid injury to the susceptibilities of adherents to that religion.

It is worth noting that bodies established for religious purposes already have a similar exemption under the Sex Discrimination Act 1984. Inclusion of this in the bill will reaffirm their exemption in relation to the solemnisation of marriage.

The bill will ensure the Sex Discrimination Act is amended to give full effect to the religious protections in the bill.

It should be noted the parliament has previously determined the ability of religious organisations to lawfully discriminate in the provision of goods and services (including hiring of facilities for weddings or marriage related services such as catering) where this discrimination would accord with the doctrines, tenets or beliefs of their religious order or would be necessary to avoid injury to the susceptibilities of adherents to their religion.

The amendments to the Sex Discrimination Act that enshrined this position were passed by the former Labor Government with support from the Coalition Opposition.

The bill follows the Senate report in not including provisions which are inconsistent with existing anti-discrimination law, create a dangerous precedent or raise complex legal matters about the intersection of federal, state and territory law.

Australian discrimination law already sets the standard and balances competing rights. These laws have operated without significant controversy for a number of years.

Finally, this bill gives effect to the view that all Australians should have equal access to Australia's marriage laws and that extending marriage to same-sex couples will strengthen and not diminish marriage in Australia.

Senator SMITH: I seek leave to continue my remarks later.

Leave granted.

The PRESIDENT: In accordance with this motion, the bill will be listed for consideration at the time for private senators' bills tomorrow.