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Exposure Draft of the Marriage Amendment (Same Sex Marriage) Bill



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SENATOR THE HON GEORGE BRANDIS QC ATTORNEY-GENERAL LEADER OF THE GOVERNMENT IN THE SENATE

MEDIA RELEASE

EXPOSURE DRAFT OF THE MARRIAGE AMENDMENT (SAME-SEX MARRIAGE) BILL

The Government today has released an Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill. The Exposure Draft will form the basis for ongoing consultation should the same-sex marriage plebiscite go ahead.

The key features of the Exposure Draft are:

1. The definition of marriage would change: The definition of marriage in s 5 of the Marriage Act would be changed to replace “a man and a woman” with “two people”.

2. The conditions for a valid marriage would stay the same: It will continue to be the case that a marriage would be void if, for example, the parties are in a ‘prohibited relationship’, consent was not real, or one or both parties are not of marriageable age.

3. Foreign same-sex marriages would be recognised in Australia: All valid marriage solemnised under the law of a foreign country, including same-sex marriages, would be recognised in Australia if they are consistent with Australian law. A foreign marriage would not be valid in Australia if the marriage would be unlawful in Australia, for example, if the parties are siblings, in a parent-child relationship, or are polygamous.

4. Existing protections for ministers of religion would be retained and strengthened: ministers of religion would be able to refuse to solemnise a marriage on the grounds that the marriage is not the union of a man and a woman, if that refusal conforms to the doctrines, tenets or beliefs of the minister’s religion, or is necessary to avoid injury to the religious susceptibilities of adherents of the religion, or if (irrespective of the teachings of his or her church) the minister has a conscientious objection to same-sex marriage.

5. Marriage celebrants (including those who are not ministers of religion) would be able to refuse to marry a same-sex couple: In addition to the existing law whereby marriage celebrants are under no obligation to solemnise marriage, the Marriage Act would be amended to allow marriage celebrants who are not ministers of religion to refuse, on the basis of conscientious or religious beliefs, to solemnise a marriage on the grounds that the marriage is not the union of a man or a woman. Religious bodies and religious organisations would also be able to refuse to provide facilities, goods or

Contact: T: +61 2 6277 7300 E: agmedia@ag.gov.au

services for the purpose of solemnisation of a same sex marriage, or for purposes reasonably incidental thereto, if the refusal conforms to the doctrines, tenets or beliefs of the religion, or is necessary to avoid injury to the religious susceptibilities of adherents to that religion.

In the event that the Parliament passes the Plebiscite Bill, the Government proposes the establishment of a Joint Select Committee to review and report on the Exposure Draft. The composition of the Committee would be as agreed by the Government, the Opposition, and Crossbench parties.

In all its dealings in this matter, the Government has acted in good faith to acknowledge the diverse and strongly held views of all participants. The Government recognises that it is important for Australians to know what the effect may be of voting ‘yes’ or ‘no’ at the plebiscite.

The Government went to the 2016 Federal Election with a commitment to hold a plebiscite as soon as practicable. By introducing the Plebiscite Bill and this Exposure Draft, we are honouring the commitment we made to the Australian people.

This is the quickest way towards achieving same-sex marriage in this Parliament. For those who believe in same-sex marriage this is the most immediate and only feasible opportunity to achieve this in the foreseeable future.

The Labor Party did nothing to progress same-sex marriage during their six years in Government. They should not get in the way in Opposition. The Government calls on Bill Shorten and the Labor Party to get out of the way, stop the delay and make same-sex marriage a reality.

A copy of the Exposure Draft is attached.

10 October 2016

EXPOSURE DRAFT

EXPOSURE DRAFT

201X-201X

The Parliament of the Commonwealth of Australia

HOUSE OF REPRESENTATIVES/THE SENATE

EXPOSURE DRAFT

Marriage Amendment (Same-Sex Marriage) Bill 201X

No. , 201X

(Attorney-General)

A Bill for an Act to provide for same-sex marriage, and for related purposes

EXPOSURE DRAFT

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No. , 201X Marriage Amendment (Same-Sex Marriage) Bill 201X i

Contents 1 Short title ........................................................................................... 1

2 Commencement ................................................................................. 1

3 Schedules ........................................................................................... 1

Schedule 1—Amendments 3

Part 1—Main amendments 3

Marriage Act 1961 3

Part 2—Amendment of the Sex Discrimination Act 1984 6 Sex Discrimination Act 1984 6

Part 3—Application and transitional provisions 7

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No. , 201X Marriage Amendment (Same-Sex Marriage) Bill 201X 1

1

A Bill for an Act to provide for same-sex marriage, 2 and for related purposes 3

The Parliament of Australia enacts: 4

1 Short title 5

This Act is the Marriage Amendment (Same-Sex Marriage) Act 6 201X. 7

2 Commencement 8

(1) Each provision of this Act specified in column 1 of the table 9 commences, or is taken to have commenced, in accordance with 10 column 2 of the table. Any other statement in column 2 has effect 11 according to its terms. 12

13

Commencement information

Column 1 Column 2 Column 3

Provisions Commencement Date/Details

1. The whole of this Act A single day to be fixed by Proclamation. However, if the provisions do not commence

within the period of 28 days beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

Note: This table relates only to the provisions of this Act as originally 14 enacted. It will not be amended to deal with any later amendments of 15 this Act. 16

(2) Any information in column 3 of the table is not part of this Act. 17 Information may be inserted in this column, or information in it 18 may be edited, in any published version of this Act. 19

3 Schedules 20

Legislation that is specified in a Schedule to this Act is amended or 21 repealed as set out in the applicable items in the Schedule 22

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2 Marriage Amendment (Same-Sex Marriage) Bill 201X No. , 201X

concerned, and any other item in a Schedule to this Act has effect 1 according to its terms. 2

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Amendments Schedule 1 Main amendments Part 1

No. , 201X Marriage Amendment (Same-Sex Marriage) Bill 201X 3

Schedule 1—Amendments 1

Part 1—Main amendments 2

Marriage Act 1961 3

1 Subsection 5(1) (definition of marriage) 4 Omit “a man and a woman”, substitute “2 people”. 5

2 Paragraph 23B(2)(b) 6 Omit “a brother and a sister”, substitute “2 siblings”. 7

3 Subsection 45(2) 8 After “or husband”, insert “, or spouse”. 9

4 Subsection 46(1) 10 Omit “a man and a woman”, substitute “2 people”. 11

5 Section 47 12 Repeal the section, substitute: 13

47 Ministers of religion may refuse to solemnise marriages 14

Refusing to solemnise a marriage despite this Part 15

(1) A minister of religion may refuse to solemnise a marriage despite 16 anything in this Part. 17

(2) In particular, nothing in this Part prevents a minister of religion 18 from: 19 (a) making it a condition of solemnising a marriage that: 20 (i) notice of the intended marriage is given to the minister 21

earlier than this Act requires; or 22 (ii) additional requirements to those provided by this Act 23 are complied with; and 24 (b) refusing to solemnise the marriage if the condition is not 25

observed. 26

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Schedule 1 Amendments Part 1 Main amendments

4 Marriage Amendment (Same-Sex Marriage) Bill 201X No. , 201X

Refusing to solemnise a marriage that is not the union of a man 1 and a woman 2

(3) A minister of religion may refuse to solemnise a marriage despite 3 any law (including this Part) if: 4 (a) the refusal is because the marriage is not the union of a man 5 and a woman; and 6

(b) any of the following applies: 7 (i) the refusal conforms to the doctrines, tenets or beliefs of 8 the religion of the minister’s religious body or religious 9 organisation; 10

(ii) the refusal is necessary to avoid injury to the religious 11 susceptibilities of adherents of that religion; 12 (iii) the minister’s conscientious or religious beliefs do not 13 allow the minister to solemnise the marriage. 14

Grounds for refusal not limited by this section 15

(4) This section does not limit the grounds on which a minister of 16 religion may refuse to solemnise a marriage. 17

6 Before section 48 18 Insert: 19

47A Marriage celebrants may refuse to solemnise marriages 20

(1) A marriage celebrant (not being a minister of religion) may refuse 21 to solemnise a marriage despite any law (including this Part) if: 22 (a) the refusal is because the marriage is not the union of a man 23 and a woman; and 24

(b) the marriage celebrant’s conscientious or religious beliefs do 25 not allow the marriage celebrant to solemnise the marriage. 26

Grounds for refusal not limited by this section 27

(2) This section does not limit the grounds on which a marriage 28 celebrant (not being a minister of religion) may refuse to solemnise 29 a marriage. 30

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Amendments Schedule 1 Main amendments Part 1

No. , 201X Marriage Amendment (Same-Sex Marriage) Bill 201X 5

47B Religious bodies and organisations may refuse to make facilities 1 available or provide goods or services 2

(1) A religious body or a religious organisation may, despite any law 3 (including this Part), refuse to make a facility available, or to 4 provide goods or services, for the purposes of the solemnisation of 5 a marriage, or for purposes reasonably incidental to the 6

solemnisation of a marriage, if: 7 (a) the refusal is because the marriage is not the union of a man 8 and a woman; and 9 (b) the refusal: 10

(i) conforms to the doctrines, tenets or beliefs of the 11 religion of the religious body or religious organisation; 12 or 13 (ii) is necessary to avoid injury to the religious 14

susceptibilities of adherents of that religion. 15

(2) Subsection (1) applies to facilities made available, and goods and 16 services provided, whether for payment or not. 17

(3) This section does not limit the grounds on which a religious body 18 or a religious organisation may refuse to make a facility available, 19 or to provide goods or services, for the purposes of the 20 solemnisation of a marriage, or for purposes reasonably incidental 21

to the solemnisation of a marriage. 22

7 Subsection 72(2) 23 After “or husband”, insert “, or spouse”. 24

8 At the end of section 81 25 Add: 26

Example: A chaplain may refuse to solemnise a marriage that is not the union of 27 a man and a woman where the refusal conforms to the doctrines, 28 tenets or beliefs of the chaplain’s church or faith group. 29

9 Subsection 88B(4) 30 Repeal the subsection. 31

10 Section 88EA 32 Repeal the section. 33

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Schedule 1 Amendments Part 2 Amendment of the Sex Discrimination Act 1984

6 Marriage Amendment (Same-Sex Marriage) Bill 201X No. , 201X

Part 2—Amendment of the Sex Discrimination Act 1 1984 2

Sex Discrimination Act 1984 3

11 Subsection 40(2A) 4 After “in direct compliance with”, insert “, or as authorised by,”. 5

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Amendments Schedule 1

Application and transitional provisions Part 3

No. , 201X Marriage Amendment (Same-Sex Marriage) Bill 201X 7

Part 3—Application and transitional provisions 1

12 Definitions 2 In this Part: 3

amended Act means the Marriage Act 1961, as amended by this Act. 4

13 Application of amendments 5

(1) Except as provided by subitem (2), the amendments made by this 6 Schedule only apply in relation to a marriage (within the meaning of the 7 amended Act) that takes place at or after the commencement of this 8 item. 9

(2) Part VA of the amended Act (recognition of foreign marriages) applies 10 at and after that commencement in relation to a marriage (within the 11 meaning of the amended Act), even if the marriage took place before 12 that commencement. 13

(3) For the purposes of determining whether parties to a marriage are 14 within a prohibited relationship as mentioned in paragraph 88D(2)(c) of 15 the amended Act (as it applies because of subitem (2)), 16 paragraph 23B(2)(b) of the amended Act applies. 17

14 Recognition of certain marriages by foreign diplomatic or 18 consular officers that occurred in Australia before 19 commencement 20

(1) A marriage is recognised as valid in Australia if: 21 (a) the marriage was solemnised in Australia, before the 22 commencement of this item, by or in the presence of a 23 diplomatic or consular officer of an overseas country 24

(whether or not the country was a proclaimed overseas 25 country at the time the marriage was solemnised); and 26 (b) at the time the marriage was solemnised: 27 (i) the marriage was not recognised in Australia as valid 28

because the marriage was not the union of a man and a 29 woman; and 30 (ii) the marriage was recognised as valid under the law of 31 the overseas country; and 32

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Schedule 1 Amendments Part 3 Application and transitional provisions

8 Marriage Amendment (Same-Sex Marriage) Bill 201X No. , 201X

(c) had the marriage occurred in the overseas country at the time 1 the marriage was solemnised, the marriage would, after 2 items 9 and 10 of this Schedule commence, be recognised as 3 valid under Part VA of the Marriage Act 1961. 4

(2) In this item: 5

Australia includes the external Territories. 6 diplomatic or consular officer has the meaning given by section 52 of 7 the Marriage Act 1961. 8

overseas country has the same meaning as in Division 3 of Part IV of 9 the Marriage Act 1961. 10

proclaimed overseas country has the meaning given by section 52 of 11 the Marriage Act 1961. 12