2010-2011-2012-2013

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

THE SENATE

 

 

MARRIAGE EQUALITY AMENDMENT BILL 2013

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of Senator Hanson-Young)

 

 

 

 

 

Marriage Equality Amendment Bill 2013

Explanatory Memorandum

Circulated by authority of Senator Sarah Hanson-Young

 

 

GENERAL OUTLINE

 

The Marriage Equality Amendment Bill 2013 will remove all discrimination from the Marriage Act 1961 to ensure that two people, regardless of their sex, sexual orientation or gender identity have the opportunity to marry.

 

The Australian Greens believe that discrimination currently enshrined in the Marriage Act 1961 must be overturned to ensure that freedom of sexual orientation and gender identity are recognised as a fundamental human right, and that acceptance and celebration of diversity are essential for genuine equality to exist.



This Bill will also reverse amendments made to the Marriage Ac 1961 in 2004, which not only continue to discriminate on the basis of sexuality and gender identity, but also explicitly prohibit the recognition of same-sex marriages entered into under the laws of another country.

 

The recommendations of the 2012 Senate inquiry into my Marriage Equality Amendment Bill 2010 have been incorporated in the drafting of this Bill.

 

FINANCIAL IMPACT

Nil

 

NOTES ON CLAUSES

Clause 1 - Short title

This clause provides for the Act, when enacted, to be cited as the Marriage Equality Amendment Act 2013.

 

Clause 2 - Commencement

This clause provides for the commencement of the Act on the day on which it receives Royal Assent.

 

Clause 3 - Objects

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

(a) remove from the Marriage Act 1961 discrimination against people on the basis of their sex, sexual orientation or gender identity; and

(b) recognise that freedom of sexual orientation and gender identity are fundamental human rights; and; and

(c) promote acceptance and the celebration of diversity;

 

Clause 4 - Schedule

This clause provides that an Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule operates according to its terms.

 

 

 

 

Schedule 1 - Amendment of the Marriage Act 1961

 

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



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

 

This definition was recommended by the 2012 report of the Senate Committee into the Marriage Equality Amendment Bill 2010.

 

Item 2 - Subsection 45(2)



Item 2 inserts "or partner" into the words spoken by each of the parties in the presence of an authorised celebrant, not being a Minister of religion, when solemnizing a marriage.

 

Item 3 - Subsection 46(1)

Item 3 amends the words required to be spoken by the authorised celebrant to the parties replacing the gendered term 'man and a woman' with the gender neutral phrase ‘two people’ so that the phrase as a whole reads ‘marriage, according to law in Australia, is the union of two people to the exclusion of all others, voluntarily entered into for life’.

 

Item 4

Item 4 amends section 47 to make it clear that Ministers of religion are not bound to solemnise marriage by the Marriage Act or any other law.

 

Item 5 - Subsection 72(2)

Item 5 inserts "or partner" into the words spoken by each of the parties in the presence of an authorised celebrant, not being a Minister of religion, when solemnizing a marriage.

 

Item 6 - Section 88EA

Item 6 repeals section 88EA that prohibits the recognition of marriage between same sex couples solemnised in a foreign country.

 

Item 7 - Part 111 of the Schedule (table item 1)

Item 7 amends the Schedule that deals with 'persons whose consent is required to the marriage of a minor'. This item affects Item 1 of the schedules table as to replace the phrase ’husband and wife' with the gender neutral phrase 'two people'.

 

Item 8

Item 8 is an avoidance of doubt provision to ensure that the amendments made by this Schedule will not change or affect in any way the existing conditions in the Marriage Act 1961 relating to the ministers of religion not being bound to solemnise marriages.

This avoidance of doubt provision was recommended by the 2012 report of the Senate Committee into the Marriage Equality Amendment Bill 2010.

 

Item 9

Item 9 inserts a regulation making power that allows Acts (other than the Marriage Act 1961) to be amended consequentially, or that otherwise relate to, the enactment of this Act.

 

 

Statement of Compatibility with Human Rights

Marriage Equality Amendment Bill 2013

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

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 Marriage Equality Amendment Bill 2013 amends the Marriage Act 1961 to ensure that two people, regardless of their sex, sexual orientation or gender identity have the opportunity to marry. Specifically it removes the definition of marriage as currently limited to between a man and a woman, and replaces it with the gender and sexuality neutral phrase ‘two people’.

 

The Bill also repeals insertions to the Marriage Act 1961 in 2004, which discriminates on the basis of sexuality and gender identity, and explicitly prohibits the recognition of same-sex marriages entered into under the laws of another country.

 

Human rights implications

This Bill does not negatively engage any of the applicable rights or freedoms.

This Bill positive engages with the following applicable rights or freedoms:

ICCPR Article 23

This Bill enhances the right of men and women of marriageable age to marry by extending the right of marriage to all people regardless of whether they wish to marry a same-sex or a different-sex partner.

 

ICCPR Article 26

This Bill enhances the right of gay and lesbian Australians to equal protection of the law. This Bill removes aspects of Australian marriage law that are discriminatory, and in doing so, enhances equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

ICECSR Article 12

This Bill enhances the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. It is the clear advice of Australia’s top psychological experts that, for those same-sex couples who do wish to marry, the continued discrimination against them in existing marriage laws is a source of great mental anguish and sometimes mental ill-health. By removing the discrimination from the law, this Bill reduces in part the overall discrimination and alienation suffered by gay and lesbian people which may give rise, in some people particularly young people, to an improvement in physical and mental health.

Conclusion

This Bill is compatible with human rights as it does not raise any negative human rights issues.