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Freedom to Marry Bill 2016

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2016

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

FREEDOM TO MARRY BILL 2016

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of Senator Leyonhjelm)

 

 

 



 

FREEDOM TO MARRY BILL 2016

 

OUTLINE

 

The purpose of the Freedom to Marry Bill 2016 is threefold.

 

Firs t , the Bill reduces the extent to which go vernment interferes in private life. It does this by allowing all Australians, regardless of sex, sexual orientation, and gender identity, the right to marry.

 

Seco nd, it imposes no claims or burdens of conscience on those persons who object to marriages other than between a man and a woman for both religious and non-religious reasons.

 

Th ird, it ensures that while conscience is to the greatest extent protected, the State - which stands for all Australians and whose laws ought to be neutral - cannot make claims of conscience in this matter.

 

In furtherance of the above, amendments made to the Marriage Act 1961 in 2004 purporting to define marriage pursuant to the marriage head of power in the Australian Constitution are repealed.

 

 

NOTES ON CLAUSES



Clause 1: Short title



1.         This clause provid es for the Act, when enacted, to be cited as the Freedom to Marry Act 2016 .

 

Clause 2: Commencement

 

2.         This clause provides for the commencement of the provisions of the amending Bill.  Sections 1 to 3 will commence on the day after the Bill receives the Royal Assent.

 

3.         Schedule 1 (which contains the amendments to the Marriage Act 1961 ) will commence on the 14 th day after the Bill receives the Royal Assent. Part 1 of Schedule 2 (which contains an amendment to the Sex Discrimination Act 1984 ) commences at the same time.

 

4.         Part 2 of Schedule 2 contains a power for regulations to be made to deal with consequential amendments that may be required as a result of the enactment of the Bill. It will commence on the day after the Bill receives the Royal Assent. This will allow regulations dealing with any necessary consequential amendments to be made before the commencement of the main amendments contained in Schedule 1.

 

Clause 3: Objects



5.         This clause states that the objects of this Bill are to:

 

(a)        ensure the Marriage Act 1961 allows all Australians the freedom to marry regardless of sex, sexual orientation, and gender identity;

            (b)        facilitate less government intervention in private and family life; and

            (c)        promote freedom of choice and conscience for individual Australians.

 

Clause 4 - Schedules

 

6.         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

 

Marriage Act 1961

 

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



7.         Item 1 amends the definition of marriage in the Marriage Act 1961 to: “the union of two people, to the exclusion of all others, voluntarily entered into for life.”

 

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

 

8.         Item 2 omits “a brother and a sister” and substitutes “siblings”, which relates to marriages of parties within a prohibited relationship.

 

Item 3 - Subsection 39(4)

 

9.         Item 3 inserts a new subsection 39(4) that ensures that authorised celebrants who are State employees must solemnise marriages that are in accordance with the Act, including - of course - marriages that are not between a man and a woman.

 

Item 4 - Subsection 45(2)



10.       Item 4 inserts “ or partner, or spouse” into the choice of words that may be spoken by each of the parties in the presence of an authorised celebrant when solemnising a marriage. This recognises that some couples prefer the word ‘partner’, while others prefer the word ‘spouse’.

 

Item 5 - Subsection 46(1)

 

11.       Item 5 amends the words an authorised celebrant may speak, inserting “two people” to replace “a husband and wife”. This is intended to cover the field, ensuring that the Marriage Act 1961 covers those who are transgender or intersex who wish to marry.

 

Item 6 - Section 47 (heading)

 

12.       Item 6 amends the heading to section 47 so that it reflects the amendments of Items 7, 8 and 9.

 



 

Item 7 - Section 47

 

13.       Item 7 refers to the governing section, 39(4), which disapplies section 47 to authorised celebrants who are employees of the State, and who therefore cannot discriminate.

 

Item 8 - Paragraph 47(a)

 

14.       Item 8 omits the reference to “minister of religion”, as the Bill not only protects religious conscience, but also conscience claims by those who are not religious.

 

Item 9 - Application of amendments - ministers of religion

 

15.       Item 9 is an avoidance of doubt provision to ensure that the amendments made in the Schedule will not change or affect in any way the existing conditions in the  Marriage Act 1961  relating to ministers of religion not being bound to solemnise marriages. An avoidance of doubt provision was recommended by the Senate Legal and Constitutional Affairs Legislation Committee's report into the Marriage Equality Amendment Bill 2010 , tabled in June 2012.

 

Item 10 - Subsection 72(2)

 

16.       Item 10 inserts “ or partner, or spouse” into the choice of words that may be spoken by each of the parties in the presence of a military chaplain when solemnising a marriage. This recognises that some couples prefer the word ‘partner’, while others prefer the word ‘spouse’.

 

Item 11 - Section 88EA

 

17.       Item 11 repeals section 88EA, which prohibits the recognition of marriages between same sex couples solemnised in a foreign country.

 

Item 12 - Part VIII (heading)

 

18.       Item 12 of Schedule 1 repeals the existing heading to Part VIII of the Marriage Act 1961 and inserts a new heading to that Part and a heading for proposed Division 1 which will contain the existing provisions in that Part. This amendment is consequential on the amendment made by item 13 of Schedule 1 which inserts a new Division 2 into Part VIII.

 

Item 13- At the end of Part VIII

 

19.       Item 13 of Schedule 1 adds a new Division 2 at the end of Part VIII of the Marriage Act 1961 to deal with the application of the amendments relating to the definition of marriage .

 

20.       Proposed subsection 110(1) of the Marriage Act 1961 makes it clear that the amendments made by Schedule 1 apply in relation to marriages that take place at or after the commencement of that Schedule. This means that none of the amendments will affect existing marriages or have the effect of validating marriages that purportedly took place under Australian law and would not have been valid before that commencement.

 

21.       Proposed subsection 110(2) provides that the new definition of marriage , and paragraphs 23(2)(b) and 23B(2)(b) as proposed to be amended by Item 2, will apply after the commencement of Schedule 1 in relation to marriages that took place before that commencement for the purposes of Division 3 of Part IV (marriages by foreign diplomatic or consular officers), Part VA (recognition of foreign marriages) and related provisions of the Marriage Act 1961 .

 

22.       Broadly, this will mean that marriages meeting the new definition of marriage that took place before the commencement of Schedule 1, and that are recognised as valid under the law of a foreign country, will be recognised as valid in Australia after that commencement.

 

Item 14 - Part III of the Schedule (table item 1)

 

23.       Item 14 amends the Schedule dealing with “persons whose consent is required to the marriage of a minor”. It replaces the phrase “husband and wife” with “two people”, and as with Item 3, is designed to cover the field.

 

Schedule 2 - Consequential Amendments

 

Sex Discrimination Act 1984

 

Part 1 - Amendments of the Sex Discrimination Act 1984

 

Item 1 - After section 38

 

24.       Item 1 of Schedule 2, Part 1 adds a new section 38A to the Sex Discrimination Act 1984 so that — in the course of providing, or offering to provide, goods, services or facilities in connection with the solemnisation of a marriage under the Marriage Act 1961 — it is not unlawful to discriminate against someone because of their sexual orientation, gender identity, intersex status, marital or relationship status.

 

25.       Section 38A will ensure that refusals to provide goods (such as flowers), services (such as photography) or facilities (such as a wedding venue) for a same sex marriage do not constitute unlawful discrimination. As a result of section 38A, the amendment of the definition of marriage will impose no claims or burdens of conscience on those persons who object to marriages other than between a man and a woman.

 

26.       Section 38A will cover more than just refusals to provide goods, services or facilities for a same sex marriage.  For instance, it will ensure that refusals to provide goods, services or facilities for a marriage between a man and a woman, where the refusal is motivated by the marital or relationship status of the man or woman, will not constitute unlawful discrimination. This includes refusals in direct compliance with the Marriage Act 1961 , such as refusals to solemnise marriages between descendants, ancestors and siblings. It also includes refusals that are not in direct compliance with the Marriage Act 1961 , such as refusals to provide goods, services or facilities for a marriage because a party to a marriage is a divorcee.

 



 

Item 2 - Subsection 40(2A)

 

27.       Item 2 of Schedule 2, Part 1 repeals subsection 40(2A) of the Sex Discrimination Act 1984

28.       Subsection 40(2A) deems that discrimination on the basis of sexual orientation, gender identity, intersex status or marital or relationship status, where the discrimination is done in direct compliance with the Marriage Act 1961 , does not constitute unlawful discrimination. 

 

29.       The new section 38A covers all acts currently covered by subsection 40(2A), making subsection 40(2A) redundant — hence its repeal.

 

Part 2 - Other consequential amendments

 

Item 3 - Regulations may make consequential amendments of Acts

 

30.       Item 3 of Schedule 2, Part 2 allows the Governor-General to make regulations amending Acts, including the Marriage Act 1961 and the Sex Discrimination Act 1984 , that are of a transitional nature (including prescribing any saving or application provisions). The regulation-making power may only be exercised during the 12 months starting on the day after the Bill receives the Royal Assent.

 



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Freedom to Marry Bill 2016

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The Freedom to Marry Bill 2016 changes the definition of marriage in the Marriage Act 1961 to: “the union of two people, to the exclusion of all others, voluntarily entered into for life.”  It thereby allows people to marry regardless of their sex, sexual orientation, gender identity or intersex status.

 

The Bill also provides for freedom of conscience for both religious and non-religious private sector authorised celebrants, while ensuring that authorised celebrants in the employ of the state are not able to discriminate. 

 

It also provides for freedom of conscience for people who provide goods, services or facilities for marriages.

 

Human rights implications

This Bill engages the right to equality before the law because it extends the right to marry to people regardless of sex, sexual orientation, gender identity or intersex status. 

 

The Bill also engages the right to freedom of thought, conscience and religion by ensuring that no burdens of conscience are placed on those persons who object to marriages other than between a man and a woman.   

 

Conclusion

This Bill is compatible with human rights as it reduces government intervention in human relationships and hence advances the protection of human rights.