Analysis: inside Senator Smith’s same-sex marriage bill

19 November 2017

Analysis: inside Senator Smith’s same-sex marriage bill

The result of the Australian Marriage Law Postal Survey was in favour of legalising same-sex marriage, and it now falls to Parliament to enact the required legislation. Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017 has long been the preferred option of most politicians, and on the afternoon the result of the Survey was announced Senator Smith introduced his Bill to Parliament.

Now is a good opportunity to look inside the proposed changes and see what its practical effects will be.

Commencement

Different parts of the Bill will take effect at different times, but the bulk of it will become law on a single day to be fixed by Proclamation of the Governor-General, or four weeks after it receives Royal Assent, whichever is sooner. This will give everyone time to prepare for the changes coming into effect (such as the Registrar of Marriage Celebrants). Some more minor provisions are dependent on whether or when Schedule 9 of the Civil Law and Justice Legislation Amendment Bill 2017 commences, which is currently before the Senate.

Objects

Currently the Marriage Act 1961 does not have an “objects” section that outlines its purpose (its long title simply reads “An Act relating to Marriage”). The Bill will insert a new section that outlines the goals of the Marriage Act as being “to allow equal access to marriage while protecting religious freedom in relation to marriage” by allowing civil celebrants to solemnise marriage between two people (without reference to sex or gender) and allowing ministers of religion to solemnise marriages that respect the relevant religious beliefs.

Celebrants

The Bill will expand the definition of “authorised celebrant”, being a person authorised by the Marriage Act to solemnise a marriage. This is necessary because the Bill will create the new concept of a “religious marriage celebrant”, who may refuse to solemnise certain marriages (see further below).

Religious marriage celebrants will be ministers of religion (an expression which is essentially defined as “religious officials”) who are registered marriage celebrants and who choose to be identified as a religious marriage celebrant for the purposes of the Marriage Act. The Bill consequently covers the process of applying for registration, and identification in the register. Ministers of religion already in the register will automatically become religious marriage celebrants.

If a minister of religion applies to be identified as a religious marriage celebrant but is refused by the Registrar of Marriage Celebrants, they are entitled to written reasons and may apply to have the decision reviewed by the Administrative Appeals Tribunal. All celebrants must disclose whether or not they are a religious marriage celebrant in documents relating to the performance of services as a marriage celebrant (for example, in advertising materials).

The Bill will also include chaplains and other authorised officers in the Defence Force in the definition of authorised celebrants. This is reflected by a significant number of places where the word “chaplain” will be replaced with the phrase “authorised celebrant”.

Definition of marriage and neutral language

The Bill will change the definition of marriage by replacing the phrase “a man and a woman” with “2 people” so that it reads: “‘marriage’ means the union of 2 people to the exclusion of all others, voluntarily entered into for life.” The default vows will be changed so that each party to the marriage may say “I … take thee … to be my lawful wedded wife (or husband, or spouse)”. Similar amendments will replace reference to “a man and a woman” or “a husband and wife” with “2 people”, and the prohibition of marriages between brothers and sisters will be changed to refer to two siblings.

Refusal to solemnise a marriage

The Bill restates an existing right of ministers of religion to refuse to solemnise a marriage, or to impose additional conditions beyond the Marriage Act, and will make it absolutely clear that ministers of religion may refuse on religious grounds. It also clearly states that it does not limit the grounds on which a minister of religion may lawfully refuse (the explanatory memorandum gives the example of a double-booking as a reason). This will apply to chaplains as well.

Civil marriage celebrants, on the other hand, will not be permitted to refuse to solemnise a marriage on religious grounds. The explanatory memorandum states: “All marriage celebrants registered after [Senator Smith’s Bill] commences are required, as agents of the Commonwealth, to uphold the definition of marriage under the Marriage Act without discrimination.”

Refusal to make facilities available or to provide goods or services

Bodies established for religious purposes (as defined in the Sex Discrimination Act 1984) will be able to refuse to make facilities available or to provide goods or services for the purposes of solemnising a marriage (including “purposes reasonably incidental to the solemnisation of a marriage”) if it would be inconsistent with the religion in question. It will not matter whether the facilities, goods or services are offered for payment or not. Like refusal by a minister of religion, the grounds on which a religious body may lawfully refuse are not limited (again, the example of double-booking is given).

Amendments to the Sex Discrimination Act

At present, a person is exempt from the main provisions of the Sex Discrimination Act 1984 if they are acting in compliance with the Marriage Act. The relevant provisions of the Sex Discrimination Act concern discrimination on the grounds of sexual orientation, gender identity, intersex status, and marital or relationship status. The Bill would amend the exemption to make it clear that ministers of religion, religious marriage celebrants and chaplains are not bound by the relevant provisions of the Sex Discrimination Act when refusing to solemnise a marriage.

Other amendments

The Civil Law and Justice Legislation Amendment Bill will make some changes to the Marriage Act if it is passed by Parliament. Senator Smith’s Bill makes a few minor adjustments to the Marriage Act that depend on whether or not the Civil Law and Justice Legislation Amendment Bill commences.

The last important changes that Senator Smith’s Bill makes is to provide that marriages performed in Australia but according to foreign law are recognised as valid from the commencement of the amendments. In effect, this means that same-sex couples married in Australia in an embassy or consulate of a foreign country and in accordance with that foreign country’s law, will be recognised as valid as soon as the amendments take effect.

Amendments to the Bill

Senator David Leyonhjelm has proposed amendments to the Bill. The proposed amendments are fairly short, and would make additional changes to the Marriage Act and Sex Discrimination Act that partially go against the intent of the Bill. The amendments reflect Senator Leyonhjelm’s libertarian position as a Liberal Democrat.

Under the Marriage Act, persons who are authorised by the law of a state or territory, or by Ministerial decree, to register marriages may also solemnise marriages. Senator Leyonhjelm’s first proposed amendment would make it clear that such persons may not refuse to solemnise a marriage unless they have reason to believe there is a legal impediment to the marriage or to believe the marriage would be void. In essence this would prevent government employees from refusing to solemnise a marriage unless that marriage would be illegal or void. This is in keeping with the notion that government should not discriminate.

Senator Leyonhjelm’s second proposed amendment would permit any authorised celebrant (with the exception of state and territory officers) to refuse to solemnise any marriage or imposing additional conditions beyond that required by the Marriage Act. This amendment will likely be contentious, because it goes against the notion that celebrants other than ministers of religion and chaplains are “agents of the Commonwealth” and perform what is essentially a secular role.

Senator Leyonhjelm’s third, and last, proposed amendment would change the Sex Discrimination Act and is the secular equivalent of the provisions allowing religious bodies to refuse to provide goods, services or facilities for marriages. It is described as “allowing non-government discrimination regarding marriage” and will likely be contentious in the same way as the refusal to solemnise.

Conclusion

Senator Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017 is a fairly elegant implementation of marriage equality. Minor improvements in the drafting could be made here and there, but when compared to previous or competing proposals it is easily the most straightforward legislation. At 21 pages, most of which replace existing provisions, it is refreshingly short, especially when compared to Senator James Paterson’s monumentally long and complex Bill, which Senator Paterson dropped without introducing it to Parliament after realising the clear preference for Senator Smith’s Bill.

Senator Leyonhjelm’s proposed amendments to the Bill do not make significant changes, but extend the right to refuse to solemnise a marriage or to provide facilities, goods or services for marriage to secular celebrants and entities while expressly preventing government discrimination. These amendments may find favour among some Parliamentarians, typically conservatives and libertarians, but will likely be rejected by the moderate and progressive Senators. The exception is the prevention of government discrimination, which could receive wide support among moderates, progressives and libertarians, while possibly being rejected by conservatives. It is hard to tell at this stage.

All in all, there is nothing particularly controversial about Senator Smith’s Bill, but whether or not it is passed by as swiftly as hoped by the public and Parliament will depend on the debates that will follow. The Attorney-General Senator George Brandis and Senator Paterson have both indicated they will be proposing amendments to the Bill, so the expectation that same-sex marriage will be legalised “before Christmas” may not come true.