House of Representatives

Supplementary Explanatory Memorandum

(Circulated by authority of the )

Notes on Clauses

Preliminary

Clause 1 - Short title

37. This clause is a formal provision specifying that the short title of the Act is the Marriage Amendment (Definition and Religious Freedoms) Act 2017.

Clause 2 - Commencement

38. The table in Clause 2 provides that sections 1 to 3 of the Act will commence the day the Act receives Royal Assent.

39. Schedule 1, Part 1, containing the main amendments made by the Bill, will commence on the day after the Act receives Royal Assent.

40. Schedule 1, Part 2 contains amendments to the Australian Human Rights Commission Act 1986 and will commence on the day after the Act receives Royal Assent.

41. Schedule 1, Part 3 provides for amendments to the Sex Discrimination Act 1984 and commences the day after the Act receives Royal Assent.

42. Schedule 1, Part 4 provides for contingent amendments in the event that the Civil Law and Justice Legislation Amendment Act 2017 has not come into effect and will commence at the same time as Parts 1 and 2, or not at all.

43. Schedule 1, Part 5 are amendments resulting from those enacted by Schedule 9 of the Civil Law and Justice Legislation Amendment Act and will commence either at the same time as Parts 1 and 2 (if Schedule 9 of the Civil Law and Justice Legislation Amendment Act is in force) or immediately after that Schedule commences, or not at all.

44. 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 respectively. These amendments are consequential upon the amendments to the Sex Discrimination Act 1984 made by Part 3 of Schedule 1. They ensure that the tax endorsements of charities are not affected by those amendments. Parts 6, 7 and 8 commence when Parts 1 and 2 commence.

45. Part 9 of Schedule 1 relates to application and transitional provisions and commences when Parts 1 and 2 commence.

Clause 3 - Schedules

46. Each Act specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule. Any other item in a Schedule to this Act has effect according to its terms.

Schedule 1 - Amendments Part 1 - Main amendments

Marriage Act 1961

Item 1-Subsection 2A Objects of this Act

47. Section 2A inserts an objects clause into the Marriage Act 1961. The clause amends the Act so that it is clear that the legal framework relating to marriage will recognise marriages of two adults and also fulfil Australia's obligations to protect various freedoms. It also lists the international instruments in which those freedoms are contained. Subsection 2A(3) refers to The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. This Declaration was reaffirmed by the United Nations by resolution 48/128 in 1993, and declared "an international instrument relating to human rights and freedoms for the purposes of the Human Rights and Equal Opportunity Commission Act 1986" by Michael John Duffy as Commonwealth Attorney-General on February 8, 1993.

Item 1-Subsection 2B Alternative constitutional basis for Part VAA

48. The Bill inserts a new Part VAA in the Marriage Act. This section sets out the constitutional basis for Part VAA.

Item 2-Subsection 5(1) (paragraph (c) of the definition of authorised celebrant)

49. This item amends the current definition of authorised celebrants so that, in addition to the existing categories of:

a.

Minister of religion registered under Subdivision A of Division 1 of Part IV;

b.

A person authorised to solemnise marriages under Subdivision B of Division 1 of Part IV; and

c.

Marriage celebrant

a new category of marriage celebrant titled a 'traditional marriage celebrant' (to be registered under Subdivision D of Division 1 of Part IV) is created.

Item 3 - Subsection 5(1) (definition of authorised officer)

50. This item inserts a definition of authorised officer to enable the Chief of the Defence Force to authorise an officer (as defined by the Defence Act 1903) other than a chaplain to solemnise marriages.

Item 3 - Subsection 5(1) (definition of Commonwealth authority)

51. This item introduces a definition of Commonwealth authority. A Commonwealth authority is included within the definition of public authority.

Item 3 - Subsection 5(1) (definition of entity)

52. This item introduces a definition of entity by reference to section 5AA.

Item 3 - Subsection 5(1) (definition of law)

53. This item introduces a definition of the term 'law'.

Item 4-Subsection 5(1) (definition of marriage)

54. The current definition of marriage means only marriages between a man and a woman can be solemnised in Australia or recognised from overseas under Australian law.

55. This item amends the definition of marriage to mean only 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.

56. Same-sex couples and people who are legally recognised as neither a man or a woman will be able to marry and have their foreign marriages recognised under Australian law. For example, this would include an intersex person who is legally recognised as both male and female and a gender diverse person who is legally recognised as having a non-specific gender. This gives effect to the recommendations of the Senate Select Committee. ^[12]

Items 5, 12, 27, 29, 30, 32-50, 52, 53, 55-62 & 65, 66, 68- Updating references to "authorised officer"

57. Currently the Marriage Act only provides for chaplains in the Defence Force to solemnise marriages of Defence force members while overseas. Under this Bill, marriages solemnised under Division 3 of Part V (marriages of members of the Defence Force overseas) will be able to be solemnised by:

a.

an authorised officer (authorised in writing by the Chief of the Defence Force), or

b.

a chaplain.

58. These amendments will ensure that all responsibilities and rights currently afforded to chaplains in relation to the solemnisation of marriages outside of Australia are extended to authorised military officers, where at least one party to the marriage is a member of the Australian Defence Force.

59. See the discussion below at items 51 and 54 on religious and conscientious exemptions for chaplains and officers authorised in writing by the Chief of the Defence Force.

Item 6-Subsection 5(1) (Definition of public authority)

60. This item amends subsection 5(1) of the Marriage Act to provide a definition of public authority. Section 88KB provides provisions that assist in determining the scope of the definition of public authority.

Item 6-Subsection 5(1) (Definition of relevant belief)

61. This item amends subsection 5(1) of the Marriage Act to provide that the definition of relevant belief is contained at section 5AC of that Act.

Item 6-Subsection 5(1) (Definition of relevant marriage belief)

62. This item amends subsection 5(1) of the Marriage Act to provide that the definition of relevant marriage belief is contained at section 5AB of that Act.

Item 6- Subsection 5(1) (Definition of religious body or organisation)

63. This item amends subsection 5(1) of the Marriage Act to provide that the definition of religious body or organisation means a body established for religious purposes to which section 37 of the Sex Discrimination Act 1984 applies or an educational institution to which section 38 of that Act applies.

Item 6-Subsection 5(1) (Definition of State or Territory authority)

64. This item inserts a definition of a State or Territory authority. A State or Territory authority is included within the definition of public authority.

Item 6-Subsection 5(1) (Definition of traditional marriage celebrant)

65. This item inserts a definition of a traditional marriage celebrant in subsection 5(1) of the Marriage Act as a person identified as such on the register of marriage celebrants under Subdivision D of Division 1 of Part IV.

66. This item clarifies the difference between:

a.

a traditional marriage celebrant registered under Subdivision D of Division 1 of Part IV (the religious or conscientious exemptions under new section 47A of the Marriage Act will apply to traditional marriage celebrants, where they are not acting in the capacity of a minister of religion and the religious or conscientious exemptions under amended section 47 of the Marriage Act will apply to traditional marriage celebrants who are acting in their capacity as ministers of religion), and

b.

a 'civil' marriage celebrant (referred to in the Marriage Act simply as a marriage celebrant) registered under Subdivision C of Division 1 of Part IV, to whom religious or conscientious exemptions will not apply where they are not also registered under Subdivision D of Division 1 of Part IV, or are not a minister of religion covered by section 47.

Item 7 - Section 5AA (Meaning of entity)

67. This section inserts a definition of entity by importing in the definition provided at section 184-1 of the A New Tax System (Goods and Services Tax) Act 1999. That definition is intended to encompass all forms of commercial and not-for-profit structuring in Australia.

68. As various sections within Part VAA extend protections to entities, subsection (2) provides that an entity is an entity regardless of whether it is:

•

for-profit or not-for-profit (a matter that is determined by whether the entity may make distributions to its members);

•

the entity is a religious body or organisation (as defined by section 5(1));

•

the entity operates to make a profit (many not-for-profit entities that are bound by their constitution not to make distributions to members undertake commercial operations for the purpose of giving rise to a surplus to apply to their charitable or other purposes (see for example the circumstances outlined in Commissioner of Taxation v Word Investments ^[13] ).

The protections afforded in Part VAA are intended to apply to all such bodies.

69. The protections granted under Article 18 of the ICCPR extend beyond religious institutions and their officials - they extend to individuals and corporations. The High Court of Australia recognised in Commissioner of Taxation v Word Investments, ^[14] that extensive engagement in commercial activities and recognition as a religious body are not mutually exclusive categories. The recognition of the religious freedom rights of for-profit entities has also been recently acknowledged by the United States Supreme Court in Burwell, Secretary of Health and Human Services et al v Hobby Lobby Stores Inc et al (Hobby Lobby) ^[15] where the Court, referring to both non-profit and for-profit corporations, held that '[f]urthering their religious freedom also "furthers individual religious freedom"'. ^[16] The consistency of the Part VAA provisions with international law is further set out in the Supplementary Statement of Compatibility with Human Rights that accompanies this Bill.

Item 7-Subsection 5AB (Meaning of relevant marriage belief)

70. Section 5AB outlines the concept of relevant marriage belief, to which various protections attach in Part VAA. Subsection 5AB(1) provides that a belief is a relevant marriage belief for a person if the person holds:

a.

a 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 (this is the definition of marriage provided in the Marriage Act prior to the amendments effected by this Bill); or

b.

any one or combination of genuine religious or conscientious beliefs that are constitutive of, supportive of, or a corollary of the foregoing belief. A non-exhaustive example list of the kinds of beliefs that may fall within the subparagraph is provided.

A person or entity that holds a relevant marriage belief receives certain protections under Part VAA. A belief under subparagraph (a) is protected independently from any of the beliefs that may fall within subparagraph (b) within Part VAA. The beliefs that may fall within the scope of subparagraph (b) are protected independently from the belief under subparagraph (a) that are protected under Part VAA. These beliefs are independently protected in Part VAA, and their protection is not dependent on their mutual application in a set of circumstances. Where both a belief under subparagraph (a) and any one or all of the beliefs under subparagraph (b) mutually apply to a certain set of circumstances, they will all be protected.

71. Subsection (2) provides that an entity may hold a relevant marriage belief (inclusive of either or both a 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 and any one or more of the beliefs covered by subsection 5AB(1)(b)).

Item 7-Subsection 5AC (Meaning of relevant belief)

72. Section 5AC outlines the concept of relevant belief. A person holds a relevant belief if the person holds:

a.

a relevant marriage belief (defined at section 5AB); or

b.

a genuine religious or conscientious belief that:

•

a same-sex relationship (or same-sex relationships in general) are not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person or

•

the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth; or

•

any one or combination of genuine religious or conscientious beliefs that are constitutive of, supportive of, or a corollary of the foregoing beliefs.

73. The term 'same-sex relationship' is to be read to include a 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.

74. A belief about the nature of gender is included in relevant belief. This is because, for example, a same sex relationship in which one of the members had altered their gender would, by reference to their legal status alone, no longer be a same-sex relationship but would be a relationship between persons of the opposite sex. To limit the protections of a person who holds a genuine or conscientious belief about same-sex relationships to only those same-sex relationships in which one of the members had not altered their gender identity would undermine the scope of the protections contained in the Bill.

75. Subsection 5AC(2) provides that an entity may hold a relevant belief. A person or entity who holds a relevant belief receives certain protections under Part VAA, as outlined below.

76. Again, the beliefs defined at section 5AC are independently protected in Part VAA, and their protection is not dependent on their mutual application in a set of circumstances. Where a belief under subsection (1)(a) (or any one or all of beliefs that fall within a relevant marriage belief) and any one or all of the beliefs under subsection (1)(b) mutually apply to a certain set of circumstances, they will all be protected.

Item 7 - Subsection 5AD (Determining when a belief is held)

77. Section 5AD sets out interpretive principles that apply to the holding of certain beliefs by a person or an entity under the Marriage Act.

78. Subsection 5AD(1) provides that a person or entity holds a genuine belief or a genuine religious or conscientious belief or genuinely believes a matter if the holding of the belief is not fictitious, capricious or an artifice. This test adopts the wording employed by Lord Nicholls in R (on the application of Williamson) v Secretary of State for Education and Employment. ^[17] As the Canadian Supreme Court has recognized, an individual's right to religious freedom does not necessitate an inquiry into whether their 'beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for courts to make'. ^[18] The ruling in Christian Youth Camps Ltd v Cobaw Community Health Services Ltd ^[19] (Cobaw), to the extent that the Court had regard to, what was considered by the Court to be, a range of views amongst congregations associated with the appellant, is an example of reasoning that is to be distinguished from this test. For this reason, section 5AD(1) requires that, wherever the Marriage Act makes reference to a genuine belief or a genuine religious or conscientious belief or whether a person or entity genuinely believes a matter, regard is instead to be had to the belief of the actual 'person' or 'entity', and whether that belief is genuinely held by that person or entity.

79. Subsection (2) clarifies the means by which an entity (including a religious body) may be said to hold a relevant belief or a relevant marriage belief (or any component thereof). In Cobaw an entity's doctrines were held to be limited to the matters expressly addressed solely in its core governance document. This reading, it is considered, fails to appreciate the many and varied means by which religious belief may be adopted or held. The question concerns when the law will recognise the holding of belief. The effect of the reading in Cobaw is to impose very strict limitations on the expression of religious freedom by religious bodies. Subsection (2) clarifies that this strict reading is not to be applied. It provides a means for the law's recognition of when religious bodies have adopted a belief that gives due recognition to the broad plurality of religious expressions within Australia, and the many and varied unique means by which they may adopt or define their beliefs.

80. As the Bill allows all couples to marry and to have their marriages recognised regardless of their sex, gender, gender identity or intersex status, subsection (3) clarifies that for the purposes of the Act whether or not another person is a man or a woman is to be determined by the authorised celebrant, chaplain or authorised officer who is the holder of the relevant marriage belief, subject to the requirement that their belief must be genuine (not fictitious, capricious or an artifice) and reasonably held. As recognised by the Senate Select Committee in its consideration of the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill:

definitions of 'sex' vary between the Commonwealth, states and territories, and legal definitions can differ from religious or doctrinal definitions. This means that the current drafting which limits religious exemptions to "same-sex couples" would not apply to all marriages that some religious doctrines would regard as same-sex regardless of the fact that a person has changed legal sex or because they have biological attributes in variance to their legal sex. ^[20]

Subsection 5AD(3) addresses this concern and is required to give consistency and effect to the religious and conscientious protections contained in the Bill.

Item 8 - Subsection 5B (Act binds Crown)

81. Section 5B provides that the Marriage Act binds the Crown in each of its capacities. The Act thus binds the Commonwealth, each of the States, the Australian Capital Territory, the Northern Territory, Norfolk Island and the other territories of the Commonwealth.

Item 9 - Section 6 (heading)

82. This item repeals the current heading of section 6 of the Marriage Act and replaces it with 'Interaction of Act with State and Territory laws'.

Item 10 - Section 6

83. This item clarifies that Part VAA excludes the operation of State and Territory laws. The Bill otherwise preserves the current interaction of the Marriage Act with State and Territory law.

Item 11 - At the end of section 6

84. The Senate Select Committee acknowledged that 'the intersection of federal, state and territory law is a complex matter that should be considered further if a parliament introduces a marriage bill.' ^[21] Currently State and Territory law gives varying and incomplete protection to the internationally recognised rights of freedom of expression, association, thought, conscience or religion and the rights of the child. Under Article 50 of the International Covenant on Civil and Political Rights, the Commonwealth is accountable for a failure on the part of the States or Territories to acquit the obligations under the Covenant.

85. For the avoidance of doubt section 6(2) then provides that Part VAA excludes and limits the operation of State and Territory laws to the extent of any inconsistency. This provision is intended to effect consistency in Australia's acquittal of its obligations under the International Covenant on Civil and Political Rights and the relevant international instruments which the Bill gives effect to, as outlined at section 2A. It draws upon existing judicial authorities to clarify the intention of the provision, including authorities in which the courts have recognised that the Commonwealth has obligations under international law to ensure that the applicable rights are recognised equally and without discrimination in all the States and Territories of the Commonwealth. To that end, subsection (2) adopts the wording of the Full High Court in Viskauskas v Nilan ^[22] and also of Dixon J in Ex parte McLean. ^[23] The provision also is supported by Dao v Australian Postal Commission ^[24] and AMP v Goulden. ^[25] Subsection (4) provides the circumstances in which a person may not be prosecuted under the law of a State or Territory.

86. The intergovernmental immunity doctrine set out by the High Court in Melbourne Corporation v Commonwealth ^[26] does not invalidate section 6(2). This is because in the Industrial Relations Act Case ^[27] the High Court affirmed the ability of the Commonwealth to make laws that lay down generally applicable minimum wage laws and general terms and conditions of employment, so, by analogy, it is possible for the Commonwealth to stipulate that the States cannot when they disperse funding discriminate on the grounds listed in section 6(2).

Item 13-Paragraph 23B(2)(b)

87. This item amends paragraph 23B(2)(b) of the Marriage Act by removing the words 'a brother and a sister' and replacing them with the words '2 siblings' to clarify that existing restrictions on prohibited relationships apply regardless of sex or gender.

Item 14- Sections 39DA - 39DE Subdivision D - Traditional marriage celebrants

88. New section 39DA specifies that only persons who have completed the necessary steps to register as a marriage celebrant can be identified as a traditional marriage celebrant on the register of marriage celebrants.

89. Identification as a traditional marriage celebrant is available to:

a.

ministers of religion (as defined in subsection 5(1)) from non-recognised denominations (these ministers are only able to register as a marriage celebrant under Subdivision C),

b.

ministers of religion (as defined in subsection 5(1)) from recognised denominations (who are usually registered under Subdivision A, but may wish to register as a marriage celebrant under Subdivision C in order to perform marriages outside the specific rituals and observances of their religion), and

c.

other marriage celebrants who hold a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

90. The inclusion of persons who hold a religious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life alongside ministers of religion is consistent with the recommendations of the Senate Select Committee. ^[28]

91. The inclusion of persons who hold such a belief alongside ministers of religion is also consistent with international law. This inclusion recognises their rights to freedom of thought, conscience or religion under Article 18 of the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23). In particular the United Nations Human Rights Committee has recognised in General Comment No. 22 on Article 18 that

The right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) in article 18 (1) is far-reaching and profound; it encompasses freedom of thoughts on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others. ^[29]

92. The inclusion of persons who hold a conscientious relevant marriage belief is also consistent with international law. Article 18 protects individual conscience separate from religious conviction. General Comment No. 22 provides:

The Committee draws the attention of States parties to the fact that the freedom of thought and the freedom of conscience are protected equally with the freedom of religion and belief. ^[30]

As noted by the Senate Select Committee:

General Comment 22 makes the specific point that equal protection is afforded to conscience, and as such any attempt to differentiate on the rights of an individual based on conscience vs religion may be contested. ^[31]

It is also to be noted that the inclusion of conscientious objectors at section 47A of the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill was supported by the Australian Federation of Civil Celebrants in evidence before the Senate Select Committee. ^[32]

Furthermore, regard is had to the Defence Legislation Amendment Act 1992:

i.

which was a response to a recommendation of the Senate Select Committee on Constitutional and Legal Affairs that conscientious objectors be lawfully permitted to object to 'participation in a particular military conflict where to be compelled by law to do so would violate the individual's sense of personal integrity'; ^[33]

ii.

which expanded the grounds for objection to military service to include not only religious but also conscientious objection; and

iii.

thus provides an example of Commonwealth law that affords comparable protection to conscientious and religious belief.

93. The protections to religious and conscientious belief contained in the Bill are also consistent with the United Nations Economic and Social Council's Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (Siracusa Principles) which, in setting out when a limitation of a right may be considered 'necessary' under Article 18(3), require that 'in applying a limitation, a state shall use no more restrictive means than are required'. ^[34] The consistency of these provisions with international law is further set out in the Supplementary Statement of Compatibility with Human Rights that accompanies this Bill. This Supplementary Explanatory Memorandum is to be read to include the statements made in the Supplementary Statement of Compatibility.

94. Existing marriage celebrants who hold a relevant marriage belief may apply to be registered as traditional marriage celebrants.

95. New section 39DB specifies notice requirements for identification as a traditional marriage celebrant to ensure the Registrar has access to relevant information needed to administratively process requests.

96. New section 39DC requires the Registrar to identify a person as a traditional marriage celebrant on the register of marriage celebrants if they are entitled to be registered and notice has been provided to the Registrar.

97. The Bill provides a clear and easy to administer solution for traditional marriage celebrants to access protections for their religious or conscientious beliefs. All 'civil' marriage celebrants under Subdivision C will be able to access protections for their religious or conscientious beliefs by registering under the new Subdivision D as a traditional marriage celebrant.

98. New section 39DD describes the process of identifying a person as a traditional marriage celebrant, which includes annotations and notice requirements.

99. New section 39DE provides a process by which a person may give notice that they no longer wish to be identified as a traditional marriage celebrant on the register of marriage celebrants.

100. The new heading for Subdivision E makes clear that sections 39F to 39M apply to all marriage celebrants, unless otherwise stated.

Item 15 & 67- Updating traditional marriage celebrant references and administrative procedures

101. Item 15 provides that a certificate signed by the Registrar that a person is, or is not, identified as a traditional marriage celebrant on the register is prima facie evidence of that fact. Item 67 makes a consequential amendment.

Item 16 - Section 43

102. This Item clarifies that section 43 is subject to Part VAA.

Items 17 to 20-Wording of the monitum

103. Subsection 45(2) of the Marriage Act currently specifies the wording of the 'monitum' - the vows that must be used in all marriages solemnised in Australia, other than marriages that are solemnised in the presence of a minister of religion. The vows required to be used for a marriage solemnised by a minister of religion are determined by the minister's religion (see subsection 45(1) of the Marriage Act).

104. Subsection 45(2) currently provides the following:

Where a marriage is solemnised by or in the presence of an authorised celebrant, not being a minister of religion, it is sufficient if each of the parties says to the other, in the presence of the authorised celebrant and the witnesses, the words:

I call upon the persons here present to witness that I, A.B. (or C.D.), take thee, C.D. (or A.B.), to be my lawful wedded wife (or husband).

105. Items 17 and 18 insert subheadings that are consequential upon the introduction of a new monitum at section 45(2A).

106. Item 19 amends section 45(2) by omitting 'not being a minister of religion' and inserting 'traditional marriage celebrant (other than a minister of religion)'. The existing phraseology will then continue to be used by marriages that are solemnised by a traditional marriage celebrant in their capacity as a traditional marriage celebrant.

107. As noted above, ministers of religion (as defined in subsection 5(1)) from recognised denominations who are usually registered under Subdivision A, may wish to register as a traditional marriage celebrant under Subdivision D in order to perform marriages outside the specific rituals and observances of their religion. These authorised celebrants would be required, when solemnising a religious marriage in their capacity as a minister of a recognised denomination, to solemnise the marriage in accordance with 'any form or ceremony recognised as sufficient' for the purposes of their religious body or religious organisation. When solemnising a marriage as a traditional marriage celebrant outside the specific rituals and observances of their religion, the vows provided by subsection 45(2) of the Marriage Act would then be used. The same applies to any minister of religion that is not from a recognised denomination who chooses to solemnise a marriage in their capacity as a traditional marriage celebrant - the persons must use the wording provided in section 45(2). Where they solemnise a marriage in accordance with any form and ceremony recognised as sufficient by their religious body, they are authorised to do so under section 45(1).

108. Item 20 inserts a new subsection 45(2A) which includes a new monitum that is to be used by all remaining celebrants. Item 20 amends the monitum by adding the gender neutral term 'spouse' to existing terms 'husband or wife'. These amendments ensure that people who are legally recognised other than male or female can use the gender neutral term 'spouse' to be accurately described in their wedding vows.

109. These items therefore enable marrying couples to word their marriage vows in a manner that best reflects their relationship.

110. Item 21 inserts a subheading that is consequential upon the introduction of a new monitum at section 46(1A). Item 22 amends existing section 46(1) to insert the words 'but being a traditional marriage celebrant' after 'denomination'. This has the effect that the existing vows under the Marriage Act will continue to be used in marriages solemnised by traditional marriage celebrants, inclusive of:

a.

Marriage celebrants who hold a genuine religious or conscientious belief that marriage is the union of a man and a woman;

b.

Ministers of religion who are not from recognised denominations; and

c.

Ministers of religion (as defined in subsection 5(1)) from recognised denominations who are usually registered under Subdivision A, but wish to register as a traditional marriage celebrant under Subdivision D in order to perform marriages outside the specific rituals and observances of their religion (and who are solemnising a marriage in their capacity as a traditional marriage celebrant as opposed to their capacity as a minister of a recognised denomination).

111. Item 23 inserts an additional monitum at section 46(1A) that reflects the inclusion of 2 people within the updated definition of marriage in this Bill. These amendments ensure that people who are legally recognised other than male or female can use the gender neutral term 'spouse' to be accurately described in their wedding vows. Item 24 is a consequential amendment that provides reference to 46(1A) at subsection 46(2).

Item 25-Section 47

112. This item makes clear when ministers of religion may refuse to solemnise a marriage.

113. 'Minister of religion' is defined in subsection 5(1) of the Marriage Act. The definition includes both ministers of a denomination recognised under section 26 and ministers from non-recognised religious bodies or organisations. The Bill does not alter that definition.

114. Subsections 47(1) and (2) reiterate the position under the existing section 47 of the Marriage Act.

115. Subsection 47(1) will provide that a minister of religion may refuse to solemnise a marriage despite anything in Part IV of the Marriage Act.

116. Subsection 47(2) continues to allow a minister of religion to refuse to solemnise a marriage if notice requirements are not met and to impose additional requirements to solemnise a marriage. This enables religions to maintain their own rituals and observances in relation to marriage (e.g. educational classes on the religious importance of marriage or pre-marriage counselling for a prescribed period), provided these do not contravene Australian law.

Refusing to solemnise a marriage on the basis of religious beliefs etc.

117. Subsection 47(3) is a new subsection which will allow ministers of religion to continue to refuse to solemnise a marriage to maintain the protection of freedom of conscience or religion under the Marriage Act:

•

subparagraph 47(3)(a) ensures that conduct that is consistent with religious doctrine, tenets or beliefs is protected,

•

subparagraph 47(3)(b) ensures conduct that is because of the susceptibilities of a religious community is protected, and

•

subparagraph 47(3)(c) ensures the minister's genuine religious or conscientious beliefs are protected (e.g. where the doctrines, tenets or beliefs of the minister's religion are ambiguous or allow for a variety of different practices regarding marriages).

118. In addition, subparagraph 47(3)(a) adopts a test that requires that the conduct is consistent with religious doctrine, tenets or belief. This is distinct from tests that require conduct to conform with religious doctrine. In Cobaw the interpretation applied to the phrase 'conforms with the doctrines of the religion' by the Victorian Court of Appeal was that 'the doctrine requires, obliges or dictates that the person act in a particular way when confronted by the circumstances which resulted in their acting in the way they did' ^[35] and 'as requiring it to be shown that conformity with the relevant doctrine(s) of the religion gave the person no alternative but to act (or refrain from acting) in the particular way.' ^[36] This strict reading is not to be applied under the Act. Instead, the term 'consistent' is adopted, noting the Macquarie Dictionary definition of that term is 'agreeing or accordant; compatible'.

119. In addition, subparagraph 47(3)(b) adopts a test that requires that the conduct be entered into because of religious susceptibilities. This is distinct from tests that require that the conduct be necessary to avoid injury to religious susceptibilities. Applying such a test in Cobaw, the Victorian Court of Appeal held that that test required demonstration of various matters, including that the harm be 'unavoidable'. The strict reading applied in Cobaw is not intended to be applied.

120. Subparagraph 47(3)(c) provides an additional circumstance where a minister of religion can refuse to solemnise a marriage. If an individual minister's genuine religious or conscientious beliefs do not allow them to solemnise a marriage, that minister's refusal to solemnise the marriage will not contravene anti-discrimination laws. By way of example, this may include circumstances where the doctrines, tenets or beliefs of the minister's religion are ambiguous or allow for ministers to exercise their own discretion in deciding whether to perform certain marriages.

121. The minister of religion will also remain able to solemnise a marriage according to any form and ceremony recognised by the minister's religious body or organisation, provided the marriage is otherwise in accordance with the Marriage Act.

Grounds for refusal not limited by this section

122. The Marriage Act does not require a minister of religion to solemnise any marriage. New subsection 47(4) ensures that section 47 does not limit the grounds on which a minister of religion may otherwise refuse to solemnise a marriage (e.g. a double-booking). Ministers of religion will still be required to comply with other laws outside of Part IV of the Marriage Act 1961, including anti-discrimination laws (e.g. Racial Discrimination Act 1975). Part 3 of the Bill effects amendments to the Sex Discrimination Act 1984 to ensure that Act is consistent with the exemptions introduced into the Marriage Act 1961 by this Bill. These provisions, and the provisions of new section 47, are designed to ensure that a minister of religion whose religious belief is that marriage is only a relationship between a man and a woman, may decline to solemnise a same-sex marriage without penalty. These provisions will also over-ride any State or Territory law on discrimination relating to sexual orientation which might have been argued to operate to the contrary.

Item 26-Before section 48

Section 47A-Traditional marriage celebrants may refuse to solemnise marriages

123. New section 47A will allow traditional marriage celebrants that hold a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life and who are not acting in a capacity as a minister of religion to refuse to solemnise marriages. Persons who are solemnising a marriage in their capacity as a minister of religion will rely upon section 47. A traditional marriage celebrant's decision may be based on their own religious or conscientious beliefs. A traditional marriage celebrant who relies upon their religious beliefs may also take into account their religion's doctrines or tenets in determining their religious beliefs.

124. Identification as a traditional marriage celebrant is available to ministers of religion (as defined in subsection 5(1)):

a.

from non-recognised denominations (these ministers are only able to register as a marriage celebrant under Subdivision C),

b.

ministers of religion from recognised denominations (who are usually registered under Subdivision A, but may wish to register as a marriage celebrant under Subdivision C in order to perform marriages outside the specific rituals and observances of their religion).

125. Where a traditional marriage celebrant is acting in their capacity as a minister of religion, they will rely upon section 47. Where they are not acting in that capacity, they will rely upon section 47A.

Grounds for refusal not limited by this section

126. The Marriage Act does not require a traditional marriage celebrant to solemnise any marriage. New subsection 47A(2) ensures that section 47A does not limit the grounds on which a traditional marriage celebrant, may otherwise refuse to solemnise a marriage (e.g. a concern that the parties do not understand the religious significance of the marriage). Traditional marriage celebrants will still be required to comply with other laws, including anti-discrimination laws (e.g. Racial Discrimination Act). Part 3 of the Bill effects amendments to the Sex Discrimination Act 1984 to ensure that Act is consistent with the exemptions introduced into the Marriage Act 1961 by this Bill. These provisions, and the provisions of new section 47A, are designed to ensure that traditional marriage celebrants whose genuine religious or conscientious belief is that marriage is only a relationship between a man and a woman, may decline to solemnise a same-sex marriage without penalty. These provisions will also over-ride any State or Territory law on discrimination relating to sexual orientation which might have been argued to operate to the contrary. 'Civil' marriage celebrants (who are not traditional marriage celebrants) may not refuse to solemnise marriages on religious or conscientious grounds.

127. Section 47B provides that bodies established for religious purposes may refuse to make a facility available or provide goods or services for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental thereto. Purposes that will be reasonably incidental thereto include:

(a)

the purpose of preparing for the solemnisation of a marriage that is not the union of a man and a woman; and

(b)

the purpose of solemnising a marriage that is not the union of a man and a woman; and

(c)

the purpose of celebrating a marriage, contemporaneously with the marriage, that is not the union of a man and a woman.

A non-exhaustive list of examples of facilities, goods and services provided by religious bodies that are covered by section 47B include provision of services by relationship counsellors, hire of reception halls and catering for receptions. A note clarifying that this in the intention of the provision is provided in the following terms:

Note: Examples include:

(a)

provision of services by relationship counsellors;

(b)

hire of reception halls;

(c)

catering for receptions.

Item 28 - Marriage officers

128. New section 71A allows an officer (as defined by the Defence Act 1903) authorised in writing by the Chief of the Defence Force to solemnise marriages under Division 3 of Part V of the Marriage Act. This is consistent with the recommendations of the Senate Select Committee. ^[37] The inclusion of officers will ensure that Defence Force members, including those on deployment overseas, will have a non-religious option to have their marriage solemnised by a marriage officer, including where a chaplain declines to solemnise their marriage.

129. An officer shares the same meaning as provided in the Defence Act 1903, which is defined as either a chaplain in the Defence Force or a person appointed as an officer of the Navy, Army or Air Force and who holds a rank specified in items 1 to 12 of the table in subclause 1(1) of Schedule 1:

Item 31 - Subsection 72(2)

130. Under Part V of the Marriage Act (as amended by this Bill), Defence Force chaplains or officers authorised by the Chief of the Defence Force are authorised to solemnise marriages outside of Australia, where at least one party to the marriage is a member of the Australian Defence Force.

131. Subsection 72(2) of the Marriage Act sets out the vows that must be used in all marriages solemnised by Defence Force chaplains and officers, unless they consider it unnecessary for the parties to do so having regard to the form and ceremony of the marriage.

132. Subsection 72(2) currently provides the following:

I call upon the persons here present to witness that I, A.B. (or C.D.), take thee, C.D. (or A.B.), to be my lawful wedded wife (or husband).

133. Item 31 amends the monitum by adding the gender neutral term 'spouse' to existing terms 'husband or wife'.

134. This amendment ensures that people who are legally recognised other than male or female can use the gender neutral term 'spouse' to be accurately described in their wedding vows.

Items 51 & 54 - Amendments to section 81

135. Item 51 amends the heading of section 81 and introduces a new subheading for new section 81(1).

136. Item 54 inserts new provisions at the end of section 81 to clarify the situations in which a chaplain or an officer, may refuse to solemnise a marriage.

Refusing to solemnise a marriage on the basis of religious or conscientious beliefs etc.

137. A chaplain is a minister of religion (as defined under subsection 5(1) of the Marriage Act). To avoid confusion, the new subsection 81(2) replicates subsection 47(3) of the Marriage Act to ensure chaplains can refuse to solemnise a marriage on the basis of their genuine religious or conscientious beliefs. This provision maintains the protection of freedom of religion and conscience under the Marriage Act and provides the same protections for Defence Force chaplains solemnising marriages of Defence Force members as it does for ministers of religion more generally in Australia.

138. This provision provides important three tiered protections for freedom of religion by allowing a Defence Force chaplain to refuse to solemnise a marriage:

a.

subparagraph 81(2)(a) ensures that conduct that is consistent with religious doctrine, tenets or beliefs is protected,

b.

subparagraph 81(2)(b) ensures conduct that is because of the susceptibilities of a religious community is protected, and

c.

subparagraph 81(2)(c) ensures the chaplain's genuine religious or conscientious beliefs are protected (e.g. where the doctrines, tenets or beliefs of the minister's religion are ambiguous or allow for a variety of different practices regarding marriage).

139. Paragraphs 118 ff. above further elaborate upon the intention of these provisions.

140. Subparagraph 81(2)(c) provides for an additional circumstance where a chaplain can refuse to solemnise a marriage. If an individual chaplain's genuine religious or conscientious beliefs do not allow them to solemnise a marriage, that chaplain's refusal to solemnise the marriage will not contravene anti-discrimination laws.

141. New section 81(3) will allow officers authorised by the Chief of the Defence Force that hold a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life to refuse to solemnise marriages under Part V. An authorised officer's decision may be based on their own religious or conscientious beliefs. An authorised officer who relies upon their religious beliefs may also take into account their religion's doctrines or tenets in determining their religious beliefs.

Grounds for refusal not limited by this section

142. The Marriage Act does not require chaplain or an authorised officer to solemnise any marriage under Part V. New subsection 81(4) ensures that section 81 does not limit the grounds on which an authorised celebrant may otherwise refuse to solemnise a marriage.

143. Authorised celebrants will still be required to comply with other laws, including anti-discrimination laws (e.g. Racial Discrimination Act). Part 3 of the Bill effects amendments to the Sex Discrimination Act 1984 to ensure that Act is consistent with the exemptions introduced into the Marriage Act 1961 by this Bill. Authorised celebrants already have broader discretion to refuse to solemnise a marriage (e.g. lack of time to solemnise a marriage because of other authorised celebrant's duties). Subsection 81(1) of the Marriage Act will continue to allow an authorised celebrant to refuse to solemnise a marriage where the authorised celebrant is of the opinion that it would be inconsistent with international law or the comity of nations.

Items 57-58-Section 88EA

144. Section 88EA was inserted into the Marriage Act by the Marriage Amendment Act 2004 to prevent foreign same-sex marriages solemnised overseas from being recognised in Australia.

145. The removal of this provision from the Marriage Act will allow same-sex marriages solemnised overseas to be recognised in Australia, in accordance with section 88D of the Marriage Act. Recognition of foreign same-sex marriages will be subject to the same restrictions currently in place in Part VA of the Marriage Act for the recognition of other foreign marriages (e.g. restrictions on bigamy, underage marriage, prohibited relationships and if there was no consent). This provision will address the circumstances that were recently considered by the United Nations Human Rights Committee in G v Australia. ^[38] The amendment will allow persons who have entered into a same sex marriage overseas but who have subsequently separated to be divorced under Australian law, subject to the provisions of the Family Law Act 1975.

Part VAA - Protection of freedoms for persons holding relevant beliefs

Item 64 - Part VAA - Freedom of thought, conscience, religion, expression and association in relation to holding certain beliefs

146. Part VAA introduces protections for freedoms of persons, including individuals and entities, religious bodies and religious educational bodies who hold a relevant belief. The freedoms are based upon protections in international law. The consistency of these provisions with international law is further set out in the Supplementary Statement of Compatibility with Human Rights that accompanies this Bill. As set out therein, and as recognised by the Senate Select Committee, the comprehensive protections granted to freedom of expression, association, thought, conscience or religion extend beyond religious institutions and their officials - they extend to individuals and corporations. This Supplementary Explanatory Memorandum is to be read to include the statements made in the Supplementary Statement of Compatibility.

147. Australian and international experience has shown that individuals and entities have suffered discrimination and intimidation for expressing and acting upon genuine beliefs about marriage or sexuality, including for refusing to make supplies (including facilities, goods and/or services) or confer privileges or benefits in relation to a same-sex marriage. While Part VAA does not rely upon the following rulings as a form of precedent to guide its interpretation, the following matters provide examples of the conduct it seeks variously to address:

a.

In the United Kingdom, the Charities Commission for England and Wales removed the charitable status of 19 Catholic adoption and foster agencies because they preferred not to adopt or foster to same-sex couples. This caused many of these agencies to close down or transfer their operations as they were no longer exempt for the purposes of tax. ^[39]

b.

In New Zealand, Family First was deregistered by the Charities Board because of its commitment to traditional marriage which no longer could be regarded as a public benefit. ^[40]

c.

In Johns v Derby County Council 2011¸ the English High Court supported a local council decision that a Christian couple with traditional views on sexual ethics, who had successfully fostered many children, would not make suitable foster carers because they would not be open to promoting or accepting a homosexual lifestyle.

d.

In New Jersey the government declared that a Methodist organisation would no longer receive a real estate tax exemption when it declined to allow a same sex couple to have a commitment ceremony in a pavilion that was used for Church services, youth ministry programs and weddings. ^[41]

e.

In Tasmania, a booklet outlining the Catholic position on same-sex marriage distributed by a Catholic Archbishop was held by the Antidiscrimination Commissioner to be a possible violation of anti-vilification legislation. ^[42] The matter proceeded to a conciliation session but was eventually abandoned after many months by the complainant.

f.

In 2011 Adrian Smith from Manchester in England placed on his Facebook page a comment that he did not think that churches should be compelled to marry same-sex couples, although he did not object to same-sex marriage. This was before England allowed same-sex marriage. He was accused by his employer, a housing association, of "gross misconduct" and threatened with dismissal. Because of his long service, he was only demoted; but he lost 40% of his salary. ^[43]

g.

In Australia, calls were made for Dr Stephen Chavura to be dismissed by Macquarie University unless he resigned from another organisation that was perceived to be opposed to same-sex marriage.

h.

In Australia, Dr Pansy Lai had a petition, which gained 5000 signatures, circulated calling for her deregistration as a doctor due to her comments about same-sex marriage and safe schools in a No campaign TV commercial to deregister her as a doctor.

i.

In the United States of America, Chick Fil A was subject to commercial boycotting because of management's views and donations supporting tradition marriage. As part of this local governments and universities refused to allow new Chick Fil A franchises.

j.

In Australia, complaints are current underway against Presbyterian Minister Campbell Markham and street preacher David Gee for expressing their views on same-sex marriage.

k.

In the United Kingdom, the Vishnitz Jewish Girls School failed their school-assessment on one criteria, which was its inadequate promotion of homosexuality and gender reassignment, as it was deemed that these were necessary to have a full understanding of fundamental British values and equality principles.

l.

In British Columbia, Trinity Western University required their students and staff to sign a community covenant which included a promise to abstain from sexual activity, unless it was between a husband and wife. Due to this the British Columbia College of Teachers voted to refuse accreditation to all teaching graduates because they might discriminate against LGBTI students. After many years of litigation, the Supreme Court of Canada upheld the right of Trinity graduates to be accredited.

m.

In Canada, Four Provincial (State) Law societies decided to refuse accreditation to the planned law school and program of Trinity Western University on the grounds that the community covenant of the university was discriminatory, not on any grounds relating to the quality of the curriculum or faculty of the law school. The effect of the decision would be to deny graduates of the law school the right to practise law in those Provinces. Two of those Provinces reversed the decision and in the other two ligation about the decisions has been through the Provincial Courts and is now to be heard by the Supreme Court of Canada.

n.

In Northern Ireland, Ashers Bakery company, run by a Christian couple, was found liable for discrimination because it refused to bake a cake for a political group with the slogan "Support Gay Marriage". Ashers led evidence that it had never refused to supply a person on the grounds of their sexual orientation and did not do so in this case but refused only because it would not disseminate or be associated with the message on the cake. The court held that the sexual orientation of the person who ordered the cake was irrelevant and the refusal to provide a cake with that message on it amounted to discrimination.

Item 64 - Section 88J Freedom to express etc. relevant belief

148. As noted above, Australian and international experience has shown that individuals have been subjected to discriminatory treatment and governmental detriments for expressing traditional beliefs about marriage or sexuality. As acknowledged by the United States Supreme Court in Obergefell v. Hodges the view that '[m]arriage...is by its nature a gender-differentiated union of man and woman...long has been held-and continues to be held-in good faith by reasonable and sincere people here and throughout the world.' ^[44]

149. Section 88J(1) is a statement of the freedoms of thought, conscience, religion or belief protected under Articles 18, 19 and 22 of the International Covenant on Civil and Political Rights, as apply to the holding and expression of a relevant belief. Subsection 88J(2) and (3) clarify when it is lawful for a person or entity to express a relevant belief, including with reference to 88KA, further outlined below.

Item 64 - Section 88JA Freedom to hold, express or act on relevant marriage belief

150. Section 88JA(1) is a statement of the freedoms of thought, conscience, religion or belief protected under Articles 18, 19 and 22 of the International Covenant on Civil and Political Rights, as apply to the holding and expression of a relevant marriage belief. Section 88JA(1) clarifies that that these rights are not confined to the private sphere but also extend to business, employment, community and public affairs and that it is not unlawful to hold, express and act upon a relevant marriage belief. Subsection 88JA(2) and (3) clarify when it is lawful for a person or entity to express and act upon a relevant belief, including with reference to 88KA, further outlined below.

Item 64 - Section 88K Protection from unfavourable treatment

151. The Senate Select Committee acknowledged that 'the evidence supported the need to enhance current protections for religious freedom' ^[45] and referred to an anti-detriment clause as one of 'various potential remedies' to protect religious freedom. ^[46] Although regard is to be had solely to the terminology of section 88K in its interpretation, international experience has shown that other jurisdictions have considered similar anti-detriment protections to be necessary. ^[47]

152. In light of the international experience referred to above, section 88K(1) provides that it is 'unlawful for a public authority or a relevant person or entity within the meaning of subsection (2) to treat another person or entity unfavourably, or subject or propose to subject the person or entity to any detriment or disadvantage, obligation or sanction, or denial of any benefit, whether directly or indirectly' including in a range of fields, because the person or entity holds or expresses a relevant belief (other than a relevant marriage belief), or holds, expresses or acts consistently with a relevant marriage belief. The protection for acts only applies to those that are consistent with a relevant marriage belief under subparagraph (1)(l) and that protection is limited to lawful acts. The meaning of lawful acts is clarified by subsection (5), in conjunction with section 88KA.

153. Subsection 88K(1) makes unlawful certain conduct of a public authority which treats someone unfavourably, directly or indirectly, because of the specified beliefs. 'Public authority' is defined in section 88KB. Because public authorities may also cause or induce other persons or entities (such as a contractor or funding recipient or the holder of a licence or permit) to engage in conduct of treating someone unfavourably because of the specified beliefs, section 88K also makes unlawful:

a.

A relevant person or entity treating someone unfavourably because of the specified beliefs where the person or entity is caused or induced to do so by a public authority (sub-section 88K(1)); and

b.

A public authority's causing or inducing a relevant person or entity to treat someone unfavourably because of the specified beliefs (sub-section 88K(3)).

154. Subsection 88K(2) defines a relevant person or entity in sub-section (1) to mean a person or entity which engages in the conduct described in subsection (1) because it is caused or induced to do so by a public authority and gives some inclusive examples of how that causing or inducing may occur.

155. Sub-section 88K(4) provides that a request or instruction by a public authority or a condition in a contract or arrangement with a public authority or a condition in direct or indirect funding by a public authority or a condition in a licence or permission granted by a public authority which would cause or induce a person or entity is inoperative to the extent that it would cause or induce a person or entity to engage in conduct described in sub-section (1).

156. Section 88K acts in almost all respects only as a shield protecting persons and entities with a relevant belief from detriment being imposed upon them by a public authority or a relevant person or entity because they express or act on their belief. It will protect, for example:

a.

a person who is dismissed or demoted as an employee or terminated as a contractor; or

b.

a business which is terminated as a supplier or refused the opportunity to tender, or is denied a permit, licence or funding; or

c.

a school or college which is refused government accreditation;

because the person or business or school or college holds, expresses or acts on a specified.

157. Section 88K provides this shield by making such detrimental actions unlawful and giving the affected person or entity the right to seek civil remedies in court such as an injunction or declaration or damages, as well as the right to complain to the AHRC of discrimination.

158. The protection of freedoms of persons and entities holding relevant beliefs under section 88K is balanced with freedoms of other Australians. Where section 88K gives protection from unfavourable treatment for acts or omissions based on specified beliefs, it only gives that protection for lawful acts and omissions. Thus section 88K does not protect criminal actions or other unlawful activity, subject to 88KA.

159. Section 88K(5) provides that a lawful act or omission does include an act or omission that is not an offence against, or a contravention of, a law because of section 88KA.

Item 64 - Section 88KA

160. Section 88KA deals with the issue that overbroad and inconsistent State and Territory vilification laws and anti-discrimination laws have in some cases unreasonably interfered with the human rights of Australians to express and manifest by action certain genuinely held conscientious and religious beliefs. For example some Australians have been dismissed from their jobs for expressing a traditional marriage belief and would be without a remedy under federal and some State and Territory anti-discrimination laws. Some Australians have been put through lengthy vilification complaint processes simply for stating their orthodox and longstanding religious beliefs. A balance needs to be struck which protects those rights and the rights of Australians not to be discriminated against on grounds like sexual orientation and relationship status. Current anti-discrimination law does not strike that balance, but section 88KA does so.

161. To strike this balance in relation to discrimination law, section 88KA provides a limited protection from anti-discrimination laws in relation to persons and entities acting on a specified belief, but not from the federal Sex Discrimination Act. Section 88K provides that a person or entity that holds a relevant marriage belief does not commit an offence against or contravene a law prohibiting discrimination (except the Sex Discrimination Act 1984) to the extent that the conduct of the person or entity is engaged in because the person or entity genuinely believes that the conduct is consistent with the relevant marriage belief. But the person's conduct will still contravene the Sex Discrimination Act prohibitions on discrimination (e.g. on the grounds of sexual orientation or gender identity or relationship status) if the person or entity engages in conduct which is unlawful discrimination against another person.

162. To strike a better balance between free speech and anti-vilification laws, section 88KA provides a limited protection for persons expressing a specified belief from laws prohibiting vilification or a law which makes it unlawful to offend, humiliate, intimidate, insult or ridicule another person. But this protection does not apply where the expression of the belief would be reasonably likely, in all the circumstances, to threaten or harass another person or group of persons on the basis of the sexual orientation, gender identity, intersex status, marital or relationship status or the family responsibilities of the person or persons in the group.

163. This is intended to allow Australians to state their specified beliefs without fear of vilification complaints because a person is offended by the belief, but it does not permit a person to state their beliefs in a way that would be reasonably likely, in all the circumstances, to threaten or harass another person or group of persons on the specified bases.

164. To summarise the overall effect of sections 88K and 88KA, section 88K makes unlawful unfavourable treatment initiated against persons and entities that:

a.

hold, express or act upon a genuine religious or conscientious belief that marriage is between a man and a woman ('relevant marriage belief') in relation to matters such as employment, engagement as a contractor, education, supply of goods or services or economic benefits. However this protection does not permit such persons or entities:

1.

to express their belief in a way that is reasonably likely in all the circumstances to threaten or harass another person or group on the grounds of sexual orientation, gender identity, intersex status, marital or relationship status or their family responsibilities (see88K(5) and 88KA);

2.

to engage in any conduct on the basis of that belief that would be unlawful discrimination under the Sex Discrimination Act against another person (e.g. on the grounds of on the grounds of sexual orientation, gender identity, intersex status, marital or relationship status or their family responsibilities) - see 88K(5) and 88KA.

(A relevant marriage belief is a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered for life, and beliefs that are constitutive, supportive or a corollary of that belief.)

b.

hold and express a 'relevant belief'. However this protection will not permit expression that is reasonably likely in all the circumstances to threaten or harass another person on the grounds of sexual orientation, gender identity, intersex status, marital or relationship status or their family responsibilities;- see sections 88K(5) and 88KA. As for acting upon a relevant marriage belief, there is no protection for engaging in an act based on a relevant belief (unless it is a relevant marriage belief - see above) if the act would be unlawful discrimination under the Sex Discrimination Act against another person (e.g. on the grounds of sexual orientation, gender identity, intersex status, marital or relationship status or their family responsibilities;) - see section 88KA.

(A relevant belief includes a relevant marriage belief and a person's genuine religious or conscientious belief that that a same sex relationship is not consistent with their religious or conscientious conviction or that for most people gender is either male or female and related beliefs that are constitutive, supportive or a corollary of those beliefs.)

165. The Bill thus carefully balances this protection with the rights of others in several ways. The Bill protects expression of traditional marriage beliefs from overbroad vilification laws (such as Tasmania's law used to bring a complaint against Catholic Bishops who stated the orthodox Catholic view of marriage). But the Bill expressly does not protect expression which would threaten or harass a person or group of persons on the basis of sexual orientation, gender identity, intersex status, marital or relationship status or family responsibilities.

166. Currently State and Territory law gives varying and incomplete protection to the internationally recognised rights of freedom of expression, association, thought, conscience or religion and the rights of the child. The Bill protects conduct by a person or entity with a traditional marriage belief which is consistent with that belief from the unbalanced and inconsistent patchwork of State and Territory anti-discrimination laws. However it leaves such conduct subject to the anti-discrimination regime in the Federal Sex Discrimination Act 1984. Such conduct is not protected by the Bill if it would be unlawful discrimination against another person on the basis of these protected attributes under the Sex Discrimination Act. Refusals to supply to same sex married couples and other discriminatory conduct retain their protections under the Sex Discrimination Act.

Item 64 - Section 88KB

167. Section 88KB provides provisions that assist in determining the scope of the definition of public authority.

Item 64 - Section 88L Scope of rights - expressing a relevant belief

168. Section 88L provides that the right to express a relevant belief or relevant marriage belief includes, but is not limited to, the freedom to seek, receive and impart information and ideas of all kinds, either orally, in writing or in print, in the form of art, or through any other medium. It is based upon Article 19 of the International Covenant on Civil and Political Rights.

Item 64 - Section 88M Supply of facilities or provision of goods or services

169. Intentionally deleted.

170. Intentionally deleted.

171. Intentionally deleted.

172. Intentionally deleted.

173. Intentionally deleted.

174. Intentionally deleted.

Item 64 - Section 88N Non-discrimination in the allocation of funding

175. Experience has also shown that governments, including local and State governments in Australia, have proposed, or effected restrictions on access to funding for bodies that hold a relevant belief. Again, such is inconsistent with Australia's international obligations, as further articulated in the Supplementary Statement of Compatibility with Human Rights that accompanies this Bill. Section 88N provides that the Commonwealth, a State or a Territory, local government or any government entity cannot decline to provide funding or impose any conditions on funding because an individual or entity holds, expresses or acts upon a relevant belief.

176. Subsection (3) inserts a definition of government entity with reference to the A New Tax System (Australian Business Number) Act 1999 and also provides that it includes an entity established by or under a law of a State or Territory.

Item 64 - Section 88O Charitable status

177. Section 88O introduces protections to charities to address concerns that their charitable status will be affected by the introduction of same sex marriage. Australia shares the common law of charities with the United Kingdom, the United States and New Zealand. Based on recent experience in those jurisdictions there is a real concern that a failure to provide religious or faith based charities with an ability to access exemptions in charity law in respect of the question of marriage will lead to the loss of charitable status, government funding where such is conditional on that status, and tax exemptions and concessions.

On 21 August 2017 the New Zealand Charities Registration Board deregistered Family First New Zealand, a body advocating for the traditional understanding of marriage, on the basis that it 'has a purpose to promote its views about marriage and the traditional family that cannot be determined to be in the public benefit in a way previously accepted as charitable.' ^[48] In considering whether Family First could be said to be established for the charitable purpose of advancing moral and mental improvement in the community the Board said 'it is not possible to establish a public benefit analogous to moral improvement in the advocacy of Family First. Most of the advocacy of Family First concerns advocacy on issues where there are two sides to an argument on a topical social issue, neither of which has been determined to be for the benefit of the public.' The Board was drawing on a long line of authorities which had held that contentious social issues could not be determined to be for the public benefit.

As the Board was applying the common law of charities, there is a concern that a similar conclusion may be reached by an Australian Court. While not binding in Australia, Australian courts have looked to other common law jurisdictions in matters of charity law, and vice-versa. The public benefit test under which Family First lost its charity status, is the same common law test, adopted from the seminal decision of the House of Lords in Pemsel's case. ^[49] All Australian charities must satisfy the requirement that they be for the public benefit. There is no material distinction between New Zealand and Australia on this point. This concern is addressed by section 88O(1) of the Paterson Bill. Importantly it is at the moment that the law changes to allow same sex couples to marry that the question of whether a belief that marriage does not include same sex couples continues to be for the public benefit at law arises.

178. The second relevant common law requirement is that charities must conform to public policy. ^[50] This requirement is replicated in section 11(a) of the Charities Act 2013. In Obergefell v Hodges, ^[51] Chief Justice Roberts stated that the tax exempt status of United States religious institutions that opposed same sex marriage "would be in question," based on the reasoning of the Court in Bob Jones University v United States. ^[52] In doing so, he referred to the following exchange between Justice Alito and the Solicitor General for the U.S. Department of Justice appearing as amicus curiae during the proceedings:

JUSTICE ALITO: Well, in the Bob Jones case, the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?

GENERAL VERRILLI: You know, I -- I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue. I -- I don't deny that. I don't deny that, Justice Alito. It is -- it is going to be an issue.

In the Bob Jones University decision the Supreme Court held that a university that refused to enrol persons in an interracial marriage failed to meet the requirement under the Internal Revenue Code that "an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy" (basing such in part on the seminal House of Lords decision in Pemsel's case ^[53] ) and the requirement at common law that the "purpose of a charitable trust may not be illegal or violate established public policy." ^[54] This concern has prompted the United States Internal Revenue Service to issue a clarification that, for its purposes, it will not interpret the law to remove the tax exemption of religious charities. ^[55]

Turning to the position in Canada, in Everywoman's Health Centre Society (1988) v The Queen, Decary JA stated the public policy test as requiring conformity to "definite and somehow officially declared and implemented public policy." ^[56] In Canada Trust Co. v. Ontario Human Rights Commission ^[57] a trust settled to provide scholarships to persons who were needy, white, of British parentage or nationality and Protestant was held to be contrary to public policy. Tarnopolsky JA based his decision on the principle that "public trusts which discriminate on the basis of distinctions that are contrary to public policy must now be void." ^[58] Robins JA agreed:

To perpetrate a trust that imposes restrictive criteria on the basis of the discriminatory notions espoused in these recitals according to the terms specified by the settlor would not, in my opinion, be conducive to the public interest. The settlor's freedom to dispose of his property through the creation of a charitable trust fashioned along these lines must give way to current principles of public policy under which all races and religions are to be treated on a footing of equality and accorded equal regard are respect. ^[59]

While in Australia, charities are permitted to have a purpose 'of promoting or opposing a change to any matter established by law, policy or practice', ^[60] this ability remains subject to the provision disqualifying any purpose 'of engaging in, or promoting, activities that are unlawful or contrary to public policy'. ^[61] That is the common law test referred to by Chief Justice Roberts, drawn from the House of Lords decision in Pemsel's case and referred to in the Canadian cases cited above. ^[62] To the extent that there may be tension within the Charities Act itself between the ability of a charity to advocate for a change in policy and the requirement that a charity be in conformity with public policy, the amendments proposed by section 88O do not attempt to provide reconciliation. However, it must be presumed that section 11(a) has work to do. It is this common law requirement that led to the removal of the tax exemption in Bob Jones University v United States, ^[63] and which grounded Chief Justice Roberts' concern that the finding of a Constitutional right to same sex marriage may lead to the loss of tax exemptions for religious bodies.

Furthermore, In the United Kingdom, the Charities Commission for England and Wales removed the charitable status of 19 Catholic adoption and foster agencies because they preferred not to adopt or foster to same-sex couples. This caused many of these agencies to close down or transfer their operations as they were no longer exempt for the purposes of tax. ^[64]

179. The above establishes that there is no reasonable distinction to be drawn between the common law of charities as applied in the above Anglophone jurisdictions and Australia, either in respect of the public benefit test or the conformity with public policy test. There is thus no reasonable ground for concluding that similar conclusions will not be reached in Australia and that an Australian charity's position on the question of same sex marriage will not be relevant to a determination of whether it meets the requirement of a charity at law. The simplest remedy is that contemplated by section 88O in the proposed amendments - remove from the calculus as to whether a charity promotes activities that are contrary to public policy consideration of whether it holds a relevant marriage belief. It is at the moment that the law changes to allow same sex couples to marry that the question of whether a belief that marriage does not include same sex couples is against public policy arises.

Item 64 - Section 88P Endorsement and Promotion

180. As outlined above, international experience has shown that individuals and entities have been compelled to express, create, publish, associate with or endorse or promote statements or opinions contrary to their genuine conscientious or religious belief (e.g. a statement in favour of same sex marriage against their convictions in favour of traditional marriage). An illustration of this form of conduct was recently provided in Lee v McArthur, McArthur & Ashers Baking Co Ltd ^[65] where a denial of a request to make a cake that made a political statement promoting same-sex marriage was considered (the request was to bake a cake conveying the statement "Support Gay Marriage" for a same sex marriage lobby group's event). In that case the respondent asserted that the denial was based upon the request to promote a view, as opposed to any personal protected attribute of the person seeking the service. In order to permit a person in similar circumstances to lawfully act upon their genuine religious or conscientious belief, subsection 88P(1) makes it unlawful to require a person or entity to engage in relevant conduct in relation to a statement or opinion (such as expressing or supporting or being associated with the statement or opinion), if the person or entity holds a relevant belief and genuinely believes that the statement or opinion is not consistent with that relevant belief. Subsection (2) defines relevant conduct in relation to a statement or opinion.

Item 64 - Section 88Q Bodies established for religious purposes and education institutions

181. Section 88Q pertains to any act or omission of a body established for religious purposes or an educational institution established for religious purposes that is consistent with a relevant belief. Section 88Q is intended to provide a wide ranging exemption. Section 88Q does not endorse unlawful acts, as clarified by section 88KA.

Item 64 - Section 88R Right not to attend class if material taught is not consistent with a relevant marriage belief or relevant belief

182. Section 88R introduces protections to students and parents that enact their rights, as provided under international law. It relies upon the Commonwealth external affairs power. Article 18(4) of the International Covenant on Civil and Political Rights provides:

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

183. The right of the child to 'freedom of thought, conscience and religion' is explicitly outlined in Article 14 of the Convention on the Rights of the Child. ^[66] The Convention reiterates the 'rights and duties of parents ... to provide direction to the child in the exercise of his or her right.' ^[67] It requires State Parties to 'undertake to ensure the child such protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents ...'. ^[68] It is therefore clear that international human rights law protects freedom of religion for both adults and children. The application of these provisions to the Bill is further set out in the Supplementary Statement of Compatibility with Human Rights that accompanies this Bill.

184. The Commonwealth has the power to legislate in respect of the matters stated at section 51 of the Australian Constitution. These powers include the external affairs power, which is exercisable against any power reserved to the States, see for example Commonwealth v Tasmania ^[69] (the Tasmanian Dams Case) and Western Australia v Commonwealth. ^[70] The Commonwealth has clear power to effect a law that relates to the States' powers over education. Furthermore the intergovernmental immunity doctrine set out by the High Court in Melbourne Corporation v Commonwealth ^[71] does not invalidate section 88R as this doctrine is limited to protecting the states in their capacity to function as independent governments (see the Industrial Relations Act case ^[72] as an example) and section 88R does not impinge on this ability. The provision requires that the States provide alternate education to any child whose rights are asserted under section 88R.

185. Section 88R provides that a parent or student aged 16 and above, or the parent of a student aged under 16, may ask the principal of any school in any State or Territory that the student is attending to release the student from any class or classes (or the relevant parts of those classes) involving any material inconsistent with a relevant belief. The provision draws upon section 25A of the Education Act 1989 (NZ).

186. Section 88R provides a student aged over 16 at an educational institution or a parent or guardian of such a student aged under 16 with a right to have the student excused from attending a class or a part of class which teaches material that the person genuinely believes is not consistent with a relevant belief held by the student or parent. The school must arrange alternative supervision for such students during the period that material is taught.

Item 64 - Section 88S Victimisation

187. Based on a similar provision in the Australian Human Rights Commission Act, section 88S makes it an offence for one person to subject, or threaten to subject, the other person to any detriment on the ground that the other person has alleged a contravention of Part VAA or sought to exercise rights under Part VAA such as by bringing civil proceedings or making a compliant to the AHRC.

Item 64 - Division 3 - Remedies

188. Subdivision A provides for civil remedies in courts of competent jurisdiction for contraventions of Part VAA.

189. Section 88T provides for a civil action for damages against a person who contravenes Part VAA.

190. Section 88U provides that a court can grant an injunction against a person who contravenes or proposes to contravene Part VAA.

191. Section 88V provides that a court can make other orders including declaratory orders and orders of a restorative nature if a person or entity contravenes Part VAA.

192. Section 88VA provides for the avoidance of doubt that conduct which is unlawful under Part VA constitutes a contravention of Part VA.

193. Subdivision B confers jurisdiction on courts to hear and determine applications for civil remedies.

194. Section 88W confers jurisdiction on the Federal Court of Australia and the Federal Circuit Court to hear and determine matters arising under Part VAA.

Part 2-Amendment of the Australian Human Rights Commission Act 1986

Australian Human Rights Commission Act 1986

Item 69 - Subsection 3(1)

195. Item 69 amends the definition of unlawful discrimination in section 3 of the Australian Human Rights Commission Act 1986 to include a contravention of Part VAA of the Marriage Act as a form of unlawful discrimination in respect of which a complaint may be made to the AHRC. This provision gives a person or entity who suffers from a contravention of Part VAA an additional avenue to seek a remedy to the civil court remedies described above.

Item 70 - Subsection 3(1)

196. Item 70 also amends the definition of unlawful discrimination in section 3 of the Australian Human Rights Commission Act to include conduct which constitutes the offence of victimisation under proposed section 88S.

Part 3-Amendment of the Sex Discrimination Act 1984

Sex Discrimination Act 1984

Item 71 - Subsection 37(1)(d)

197. Section 37(1) of the Sex Discrimination Act 1984 currently provides that

'Nothing in Division 1 or 2 affects ... (d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.'

Item 71 amends section 37(1)(d) of the Sex Discrimination Act to replace the reference to 'conforms to' with 'is consistent with'. Item 71 also amends section 37(1)(d) to replace 'necessary to avoid injury to' with 'because of'. This change is made to effect consistency between the new test in the Marriage Act and the test in the Sex Discrimination Act. To effect the equivalent amendments to the Marriage Act but fail to correspondingly amend the Sex Discrimination Act could lead to an inference the Parliament intends that a stricter test is to be applied under the Sex Discrimination Act. That is not the intention of the Bill.

198. In Cobaw the interpretation applied to the phrase 'conforms with the doctrines of the religion' by the Victorian Court of Appeal was that 'the doctrine requires, obliges or dictates that the person act in a particular way when confronted by the circumstances which resulted in their acting in the way they did' ^[73] and 'as requiring it to be shown that conformity with the relevant doctrine(s) of the religion gave the person no alternative but to act (or refrain from acting) in the particular way.' ^[74] This strict reading is not to be applied under the Act. Instead, the term 'consistent' is adopted, noting the Macquarie Dictionary definition of that term is 'agreeing or accordant; compatible'.

199. In addition, subparagraph 37(1)(d) is amended to adopt a test that requires that the conduct be entered into because of religious susceptibilities. This is distinct from tests that require that the conduct be necessary to avoid injury to religious susceptibilities. Applying such a test in Cobaw, the Victorian Court of Appeal held that that test required demonstration of various matters, including that the harm be 'unavoidable'. The strict reading applied in Cobaw is not intended to be applied under section 37(1)(d).

Item 72 - After subsection 37(2)

200. Item 72 introduces subsection 37(3), (4) and (5). The intent of these provisions is to provide clarity that faith-based charities will be bodies established for religious purposes for the purposes of section 37(1)(d) of the Act. Such bodies rely upon exemptions in anti-discrimination law to ensure that they are able to appoint staff and governing persons that share their religious convictions. This ability is critical to the maintenance of the ethos and unique identity of these institutions.

201. These provisions draw upon existing judicial pronouncements of the High Court in Congregational Union of New South Wales v Thistlethwaite ^[75] and the New South Wales Court of Appeal in Presbyterian Church (New South Wales) Property Trust v Ryde Municipal Council. ^[76] They draw upon the common law recognition that non-religious charitable purposes can be religious in certain circumstances. For example, in Presbyterian Church (New South Wales) Property Trust v Ryde Municipal Council a retirement village operated by the Presbyterian Church was held to be a religious body.

202. A further illustration of a body that is intended to be covered by these provisions is a faith-based public benevolent institution (PBI). The Australian Charities and Not-for-profits Commission (ACNC) has adopted the interpretation that such a body must have a main purpose of providing benevolent relief in order to be registered as a PBI on the ACNC Register, but cannot have a religious purpose. ^[77] In Cobaw, the Victorian Court of Appeal held that the charity law test for determining whether a body had a purpose of advancing religion was the test for determining whether an entity was a 'body established for religious purposes' under the Equal Opportunity Act 1995 (Vic). If this reasoning is applied to the ACNC's interpretation of the law of public benevolent institutions (which are charities under the Charities Act 2013), all such faith-based institutions will lose discretion over their identity and character.

203. Similarly the Queensland Anti-Discrimination Tribunal has held that St Vincent de Paul's Society is not a 'body established for religious purposes' under the Anti-Discrimination Act 1991 (Qld), with the result being that St Vincent de Paul's Society could not require that the President of a local conference be a Catholic. ^[78] As noted in the Supplementary Statement of Compatibility, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by the General Assembly of the United Nations on 25 November 1981 (resolution 36/55) is a matter of international concern referred to in the Bill. Article 6(b) of the Declaration provides that the right to freedom of thought, conscience, religion or belief under Article 18 of the ICCPR includes the freedom 'to establish and maintain appropriate charitable or humanitarian institutions'. To remove the ability of such institutions to control the appointment of their staff and leaders is to remove their ability to maintain their faith-based character, and thus a direct impingement on their religious freedom rights. Subsections 37(3), (4) and (5) address these concerns.

Items 73, 74, 75 - Subsection 38

204. Items 73, 74 and 75 amend subsections (1), (2) and (3) of section 38 of the Sex Discrimination Act respectively. These amendments adopt a test that requires that the conduct be entered into because of religious susceptibilities. This is distinct from tests that require that the conduct be necessary to avoid injury to religious susceptibilities. Applying such a test in Cobaw, the Victorian Court of Appeal held that that test required demonstration of various matters, including that the harm be 'unavoidable'. The strict reading applied in Cobaw is not intended to be applied under section 37(1)(d).

Item 76 - after subsection 38(3)

205. Item 76 inserts new section 38A into the Sex Discrimination Act. Subsections (1), (2) and (3) provide that a body established for religious purposes or institution holds a belief if the holding of the belief is not fictitious, capricious or an artifice. This test adopts the wording employed by Lord Nicholls in R (on the application of Williamson) v Secretary of State for Education and Employment. ^[79] In addition, as the Canadian Supreme Court has recognized that the right to religious freedom does not necessitate an inquiry into whether the "beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for courts to make". ^[80] The ruling in Cobaw to the extent that the Court had regard to, what was considered by the Court to be, a range of views amongst congregations is to be distinguished from this test. For this reason, new subsections (1), (2) and (3) require regard to be had to the belief of the relevant body or institution.

206. Subsection (4) outlines when such a body may hold a doctrine, tenet or belief. In Cobaw an entity's doctrines were held to be limited to the matters expressly addressed solely in its core governance document. This reading, it is considered, fails to appreciate the many and varied means by which religious belief may be adopted or held. The question concerns when the law will recognise the holding of belief. The effect of the reading in Cobaw is to impose very strict limitations on the expression of religious freedom by religious bodies. Subsection (2) clarifies that this strict reading is not to be applied. It provides a means for the law's recognition of when religious bodies have adopted a belief that gives due recognition to the broad plurality of religious expressions within Australia, and the many and varied unique means by which they may adopt or define their beliefs.

207. The Senate Select Committee acknowledged that 'the intersection of federal, state and territory law is a complex matter that should be considered further if a parliament introduces a marriage bill.' ^[81] Currently State and Territory law gives varying and incomplete protection to the internationally recognised rights of freedom of expression, association, thought, conscience or religion. Under Article 50 of the International Covenant on Civil and Political Rights, the Commonwealth is accountable for a failure on the part of the States or Territories to acquit the obligations under the Covenant.

208. Section 38B then provides that section 37, 38 and 38A exclude and limit the operation of State and Territory laws to the extent of any inconsistency. This provision is intended to effect consistency in Australia's acquittal of its obligations under the International Covenant on Civil and Political Rights. It draws upon existing judicial authorities to clarify the intention of the provision, including authorities in which the courts have recognised that the Commonwealth has obligations under international law to ensure that the applicable rights are recognised equally and without discrimination in all the States and Territories of the Commonwealth. To that end, subsection (2) adopts the wording of the Full High Court in Viskauskas v Nilan ^[82] and also of Dixon J in Ex parte McLean. ^[83] The provision also is supported by Dao v Australian Postal Commission ^[84] and AMP v Goulden. ^[85] Subsection (3) provides that subsections (1) and (2) do not however operate to override any Commonwealth, State or Territory law where that law is more protective of a body established for religious purposes or educational institution.

Item 77-Subsection 40(2A)

209. In 2013, subsection 40(2A) was inserted into the Sex Discrimination Act to ensure that new discrimination protections on the grounds of 'sexual orientation', 'gender identity', 'intersex status' and 'marital or relationship status' did not apply to marriages solemnised in compliance with subsection 5(1) or religious exemptions in the Marriage Act. This exemption was necessary in order for the Marriage Act not to be inconsistent with the protections against discrimination in the Sex Discrimination Act.

210. The Bill proposes amendments to subsection 40(2A) of the Sex Discrimination Act to ensure the exemptions for ministers of religion and traditional marriage celebrants contained in sections 47 and 47A and chaplains and authorised officers in section 81 are given effect to.

211. New subsection 40(2AA)(a) includes an additional provision clarifying that this exemption from the Sex Discrimination Act does not apply if a traditional marriage celebrant's identification as a traditional marriage celebrant on the register of marriage celebrants has been removed at the time the marriage is solemnised.

212. Item 77 also includes a note that cross-references subsection 37(1)(d) of the Sex Discrimination Act to make readers aware of the permanent exemption available for bodies established for religious purposes. This cross-reference is to assist readers who may not be familiar with the Sex Discrimination Act as a whole and its interplay with the Marriage Act.

213. These amendments are required to give full effect to sections 47, 47A and 81 as proposed by this Bill. It makes clear that a minister of religion, traditional marriage celebrant, chaplain or authorised officer's refusal to solemnise marriages in prescribed circumstances does not constitute unlawful discrimination under the Sex Discrimination Act.

Item 78 - After section 40

214. Intentionally deleted.

Part 4-Amendments if Schedule 9 to the Civil Law and Justice Legislation Amendment Act not yet commenced

Item 79-Paragraph 115(2)(b)

215. Section 115 of the Marriage Act outlines information included in the register of authorised celebrants published on the internet.

216. The new subsection 115(2)(b)(ii) includes a requirement to publish whether or not the person is identified as a traditional marriage celebrant. This builds on subsection 115(2)(a) that requires the list to clearly identify ministers of religion.

217. The new subsections 115(2)(b)(i) and (iii) provide that the published list shall show the traditional marriage celebrant's full name, designation (if any) and address and, where appropriate, the religious body or religious organisation to which he or she belongs, in line with similar requirements for marriage celebrants under subsection 115(2)(b) of the Marriage Act.

218. In clearly requiring all lists of authorised celebrants to accurately describe the category under which an authorised celebrant is registered, potential customers can make informed consumer decisions before contacting a celebrant in the knowledge of exemptions which apply to ministers of religion and traditional marriage celebrants.

Item 80- The Schedule (table item 1 of Part III)

219. This item amends 'a husband and wife' to 'two people' in The Schedule which identifies whose consent is required for the marriage of a minor who is adopted.

220. As at 1 July 2017, all states and territories except the Northern Territory permit adoption of children by couples regardless of their sex or sexual orientation, where it is in the best interests of the child.

221. The changes to The Schedule will amend the language to accommodate the inclusive language of all couples who may jointly adopt a child.

Part 5-Amendments once Schedule 9 of the Civil Law and Justice Legislation Amendment Act 2017 commences

222. Items 81, 82 and 83 provide for traditional marriage celebrants to be listed on the register of marriage celebrants (as will occur as discussed above at item 79 in the event that amendments to Schedule 9 of the Civil Law and Justice Legislation Amendment Act commence).

223. However, amendments to The Schedule which will occur if the Civil Law and Justice Legislation Amendment Act passes negate the need to amend The Schedule.

Part 6 - Amendment of the Charities Act 2013

224. Item 84 is necessary to clarify that the fact that a faith-based charity would be a body established for religious purposes will not be relevant for the determination as to whether it satisfies the definition of charity provided by section 12 of the Charities Act 2013. That definition draws upon the common law of charities. The item clarifies that, for example, the mere characterisation of a faith-based charity that is registered as a charity advancing social or public welfare through a purpose of relieving the poverty, distress or disadvantage of individuals or families as a body established for religious purposes under section 37(1)(d) of the Sex Discrimination Act will not affect its registration under the Australian Charities and Not-for-profits Commission Act 2012 as a charity advancing social or public welfare.

Part 7 - Amendment of the Income Assessment Act 1997

225. Item 85 inserts a new provision in the Income Tax Assessment Act 1997 that provides that the mere characterisation of a body as a body established for religious purposes under section 37(1)(d) of the Sex Discrimination Act 1984 will not detrimentally affect any endorsement as a deductible gift recipient it has received. Bodies advancing religion are not generally eligible for endorsement as a deductible gift recipient.

Part 8 - Amendment of the Fringe Benefits Tax Assessment Act 1986

226. Items 86 and 87 insert new subprovisions in the Fringe Benefits Tax Assessment Act 1986 that provide that the mere characterisation of a public benevolent institution or a health promotion charity as a body established for religious purposes under section 37(1)(d) of the Sex Discrimination Act 1984 will not detrimentally affect their respective endorsement either as a public benevolent institution or a health promotion charity under the Fringe Benefits Tax Assessment Act. The amendment is necessary to ensure that the fringe benefits tax treatment of such bodies will not be adversely affected as a result of their characterisation as a body established for religious purposes under the Sex Discrimination Act 1984.

Part 9 - Application and transitional provisions

227. Part 9 of Schedule 1 sets out the application provisions necessary to support the commencement of the amendments. Part 9 of Schedule 1 also includes transitional provisions necessary to give full effect to the Marriage Act amendments.

Item 88-Definitions

228. The only term defined by item 69 is 'amended Act' to make clear that the references to 'amended Act' in Part 5 are references to the Marriage Act as amended by this Bill.

Item 89-Application of amendments

229. Subitem 89(1) will enable any two people wishing to marry in Australia, regardless of their sex or gender, to be eligible to lodge a Notice of Intended Marriage with an authorised celebrant on or after the date the amendments to the Marriage Act commence.

230. Subitem 89(2) will enable existing same-sex marriages solemnised outside of Australia to be automatically recognised in Australia from the date the amendments commence. Recognition of these marriages from the time of commencement of the provisions of the Bill will mitigate against the potential adverse impact of retrospective recognition. In addition, all future foreign same-sex marriages will also be recognised in Australia.

231. Subitem 89(3) clarifies that Part VAA applies according to its terms from its commencement.

232. Subitem 89(4) clarifies that any foreign marriages involving a prohibited relationship will not be recognised in Australia.

Item 90-Recognition of certain marriages by foreign diplomatic or consular officers that occurred in Australia before commencement

233. This item ensures that same-sex marriages solemnised by, or in the presence of, a foreign diplomatic or consular officer in Australia before the commencement of this Bill will be recognised in Australia from the date on which the amendments commence.

234. In order to recognise such marriages, item 90 will treat the marriage as though it took place in the overseas country under whose laws it was solemnised, provided the same-sex marriage would have been recognised as valid in the overseas country but was solemnised in Australia prior to the commencement of this item.

235. Restrictions on unlawful foreign marriage remain which will not allow certain marriages to be recognised in Australia as valid (e.g. restrictions on bigamy, underage marriage, prohibited relationships and if there was no consent).

236. Item 90 is a transitional provision which ensures that same-sex couples who married under foreign laws prior to the commencement of this Bill will be equally and consistently treated in having their existing marriage recognised, regardless of whether their marriage took place in Australia or overseas. The provision further ensures that same-sex couples whose marriage was solemnised by or in the presence of a foreign diplomatic or consular officer in Australia are not detrimentally affected by the fact that the diplomatic or consular officer was of a non-proclaimed overseas country.

237. Subitem 90(2) sets out definitions that apply in item 90 to give effect to items 89 and 90.