House of Representatives

Supplementary Explanatory Memorandum

(Circulated by authority of the )

General Outline

25. This Bill amends the Marriage Act 1961 to allow two people to marry in Australia, regardless of their sex or gender. The Bill also gives protections to freedom of expression, association, thought, conscience or religion. 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.

26. The Bill draws upon the Report of the Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill, February 2017 (Senate Select Committee Report) which unanimously stated that 'should legislation be enacted to change the definition of marriage, careful attention is required to understand and deliver a balanced outcome that respects the human rights of all Australians if the nation is to continue to be a tolerant and plural society where a diversity of views is not only legal but valued.' ^[10] The Report further recommended that 'the right to religious freedom should be positively protected'. This Bill acquits these obligations.

27. Throughout this Supplementary Explanatory Memorandum, reference is made to 'same-sex marriage'. The terms 'same-sex marriage' or 'same-sex relationship' should be read to include a marriage or relationship of two people regardless of their sex or gender, sexual orientation, gender identity or intersex status where the union is not that of a man and a woman. The same interpretation is to be applied to the use of that term in the Bill.

28. Under paragraph 51(xxi) of the Constitution of Australia, the Commonwealth has the power to make laws relating to marriage. In The Commonwealth v Australian Capital Territory ^[11] the High Court of Australia made comments in obiter that this power includes the power to make laws relating to same-sex marriage. Under paragraph 51(xxix) of the Constitution of Australia, the Commonwealth has the power to make laws relating to external affairs. This Bill gives effect to the various international instruments that contain Australia's obligations to protect freedom of expression, association, thought, conscience or religion and the rights of the child.

29. In summary, the Bill includes amendments to:

a.

redefine marriage to mean the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, or the union of 2 people to the exclusion of all others, voluntarily entered into for life,

b.

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,

c.

enable same-sex marriages that have been, or will be, solemnised under the law of a foreign country, to be recognised in Australia,

d.

identify traditional marriage celebrants on the register of marriage celebrants as a new category including:

•

ministers of religion from religious denominations that are not recognised under the Marriage Act (e.g. independent religious organisations),

•

marriage celebrants wanting to perform marriages consistent with their genuine religious or conscientious belief that marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life (a 'relevant marriage belief'),

e.

establish a new category of officers to solemnise marriages of members of the Australian Defence Force overseas, and

f.

protect religious and conscientious freedoms in relation to marriage:

i.

ministers of religion will be able to refuse to solemnise a marriage consistent with their religion's doctrine, tenets or beliefs, or the religious susceptibilities of adherents of that religion, or their own religious or conscientious belief (e.g. marriages of same-sex, previously divorced or inter-faith couples),

ii.

a new category of traditional marriage celebrants, inclusive of, but not limited to, ministers of religion who are not ministers of a religion of a recognised denomination will be able to refuse to solemnise a marriage where their religious or conscientious beliefs do not allow them to do so.

As further set out in the Supplementary Statement of Compatibility with Human Rights that accompanies the Bill, these provisions give effect to protections in international law.

30. The Bill provides protections for individuals and entities (including both commercial and religious bodies) that hold and express a 'relevant belief'. The Bill also provides protections for individuals and entities (including both commercial and religious bodies) that hold, express and act upon a 'relevant marriage belief'. The Bill provides that a person or entity cannot be required to endorse or promote same-sex marriage against their genuine religious or conscientious belief. The Bill also clarifies that bodies established for religious purposes and educational institutions established for religious purposes may perform acts consistent with a relevant belief. In order to ensure consistency with Australia's obligations in international law, these protections prevail against State and Territory law to the contrary.

31. The Bill also introduces protections to ensure that children are educated in accordance with their religious and conscientious beliefs or those of their parents (as the case may be).

32. The Bill clarifies that:

a.

Governments cannot decline to provide funding or impose conditions on an individual or entity within any funding contract because that individual or entity holds a relevant belief.

b.

Charities that hold a relevant belief will not lose their charitable status as a result of the changes to the Marriage Act.

33. Part 3 of Schedule 1 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, traditional marriage celebrants, Defence Force chaplains and authorised officers. The existing exemptions for bodies established for religious purposes and educational institutions established for religious purposes are also aligned with the new test introduced by the amendments to the Marriage Act. The Bill also clarifies that bodies established for religious purposes under the Sex Discrimination Act include faith-based charities.

34. Parts 4 and 5 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.

35. Parts 6, 7 and 8 of Schedule 1 contain amendments to the Charities Act 2013, Income Tax Assessment Act 1997 and Fringe Benefits Tax Assessment Act 1986 that are consequential upon the amendments to the Sex Discrimination Act 1984 made by Part 3 of Schedule 1.

36. Part 9 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.