House of Representatives

Supplementary Explanatory Memorandum

(Circulated by authority of the )

Summary of Supplementary Explanatory Memorandum

1. This Bill amends the Marriage Act 1961 to allow two people to marry in Australia, regardless of their sex or gender. The Bill also enacts Australia's international obligations in respect of the following human rights: freedom of expression, association, thought, conscience or religion and the rights of the child.

2. The Bill extends the definition of marriage to include 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.

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

4. The Bill gives effect to the international human rights of thought, conscience or religion in relation to the solemnisation of marriage in the following ways:

a.

ministers of religion will be able to refuse to solemnise a marriage consistent with their religion's doctrine, tenets or beliefs, or the religious susceptibilities of adherents of that religion, or their own genuine religious or conscientious belief.

b.

a new category of traditional marriage celebrants, inclusive of, but not limited to, ministers of religion who are not ministers of a religion of a recognised denomination, will be able to refuse to solemnise a marriage where their genuine religious or conscientious beliefs do not allow them to do so. 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. ^[1]

The Bill protects only genuine beliefs which are not fictitious, capricious or an artifice. The Bill does not permit any conduct which is unlawful discrimination under the Sex Discrimination Act.

5. There is substantial experience of discrimination and intimidation against persons and entities who support traditional marriage in Australia and in jurisdictions that have legislated for same-sex marriage, in areas like employment, education, professional accreditation and commercial boycotts. However, 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.' ^[2]

6. Persons who hold the traditional view of marriage for reasons other than religious belief do not have protection under Federal, State and Territory anti-discrimination laws or the Fair Work Act's anti-discrimination provisions. Persons who hold the traditional view of marriage on the ground of religious belief have no protection under Federal anti-discrimination laws and no protection under New South Wales or South Australian anti-discrimination laws. Some protection is provided under the anti-discrimination laws of the other States or Territories but only for individuals and not organisations. The Bill redresses this imbalance and provides legal protections against that discrimination and intimidation to persons and entities that hold a traditional marriage belief by giving effect to their international human rights to expression, association, thought, conscience or religion.

7. The Bill 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.

8. 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 varying and incomplete 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.

9. The Bill inserts a new Part VAA of the Marriage Act which provides:

a.

a shield to be used as a legal protection against unfavourable treatment initiated by a public authority or by a person acting on the request or requirement of a public authority against persons and entities because the person or entity:

i.

holds, expresses or acts 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.

(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 related beliefs that are constitutive, supportive or a corollary of that belief.)

ii.

holds or expresses a 'relevant belief' (note that there is no protective shield in relation to person or entity acting on a relevant belief unless it is a relevant marriage belief).

(A relevant belief includes a relevant marriage belief and a person's genuine religious or conscientious belief 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.)

iii.

However these protections do 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;

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 sexual orientation, intersex status, gender identity, marital or relationship status or family responsibilities).

b.

that a person or entity cannot be required to express or publish or endorse or promote a statement or opinion in favour of same-sex marriage which is contrary to their genuine religious or conscientious belief.

c.

that governments cannot decline to provide funding, impose conditions or withdraw funding from an individual or entity solely because that individual or entity holds a relevant belief.

d.

that charities that hold a relevant belief will not lose their charitable status as a result of the changes to the Marriage Act permitting same sex marriage, as has happened in some other countries.

e.

that bodies established for religious purposes and educational institutions established for religious purposes may perform acts consistent with a relevant belief.

10. The Senate Select Committee acknowledged that 'the evidence supported the need to enhance current protections for religious freedom' ^[3] and referred to an anti-detriment clause as one of 'various potential remedies' available to protect religious freedom. ^[4] The protective shield referred to at subparagraph 9(a) gives legal protection from detrimental conduct initiated by a public authority or by a person acting on the request or requirement of a public authority in three ways:

a.

It makes unlawful certain detrimental action taken against a person or entity because they hold or express or act on a relevant marriage belief or hold or express a relevant belief.

b.

It provides a person or entity which suffers from such detrimental action with the right to seek court orders against the person or entity taking the detrimental action. These orders include a declaration that the detrimental action is unlawful, an injunction, damages for loss suffered from the detrimental action and such other orders of a compensatory or corrective nature as the court thinks appropriate.

c.

The person who suffers the detrimental action also has the option to make a complaint to the Australian Human Rights Commission (AHRC) that the detrimental action is in contravention of the protective shield provisions and the AHRC may conciliate and determine the complaint.

11. The Bill also introduces protections that enact Australia's international obligations to protect the liberty of parents to ensure the religious and moral education of their children in conformity with their own convictions.

12. The Bill introduces amendments to the Sex Discrimination Act to ensure that the protections in the Marriage Act are consistent with the protections in the Sex Discrimination Act. The amendments also clarify that faith-based charities are bodies established for religious purposes under the Sex Discrimination Act so that they can exercise discretion over their staff and leaders, and thus maintain their unique character, consistent with the protections granted to religious freedom in international law. Consequential amendments to the Charities Act 2013, Income Tax Assessment Act 1997 and Fringe Benefits Tax Assessment Act 1986 are made to ensure that the tax endorsements of charities are not affected by those amendments.

13. There is a concern that Federal, State and Territory anti-discrimination laws are unbalanced in giving much less protection to Australians with relevant beliefs than they do to Australians of same sex orientation and supporters of same sex marriage. In addition, even where State and Territory anti-discrimination laws do give some protection to Australians with relevant beliefs they are varied and inconsistent in how they do this.

14. This Bill strikes the appropriate balance of protections between those Australians with relevant beliefs and those who are same sex attracted or support same sex marriage, consistently with Australia's obligations in international law. To ensure consistency, that balance is properly to be expressed in Federal law through the interaction of the protective provisions in the Marriage Act to be inserted by the Bill and the Federal Sex Discrimination Act. The Bill will therefore override the patchwork of State and Territory anti-discrimination laws. The Bill leaves the expression and acting on a relevant belief subject to the Federal Sex Discrimination Act anti-discrimination provisions and the provisions in Part VAA of the Marriage Act as described above. In order to ensure consistency with Australia's obligations in international law, the Bill provides that these protections prevail against any State and Territory law to the contrary.