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Monday, 21 May 2018
Page: 3848

Marriage Act

Dear Mrs Wicks

Thank you for your letter of 6 February 2018 regarding petition number EN0417, relating to anti-discrimination legislation and amendments to the Marriage Act 1961 (Cth) to enable same-sex marriage.

Petition EN0417 requests that the House of Representatives 'maintain existing anti-discrimination legislation and it's (sic) intent by not allowing the protections to be watered down by the introduction of exemptions (specifically targeted at non-heterosexual weddings and marriages) in the process of amending the Marriage Act'. I hope the following information assists to inform the Standing Committee on Petitions as to the Australian Government's position on this matter.

The Australian Government considers that people are entitled to respect, dignity and the opportunity to participate in society and to receive the protection of the law, regardless of personal attributes such as their marital status, sexual orientation, gender identity or intersex status. Consistent with this position, the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) makes discrimination on these grounds unlawful in a broad range of areas of public life.

The Australian Government is also committed to protecting freedom of speech, freedom of religion and belief, and other traditional rights and liberties. All Australians are free to choose their religion and belief, and are entitled to express and practise their religion and belief, without intimidation and without interference, as long as those practices are within the framework of Australian law.

The Marriage Amendment (Definition and Religious Freedoms) Bill 2017 was introduced to the Senate by Senator Dean Smith as a private Senator's Bill on 15 November 2017. The Senate approved consequential amendments to the Bill and passed the amended Bill on 29 November 2017. The House of Representatives passed the amended Bill on 7 December 2017.

On 9 December 2017, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Marriage Amendment Act) commenced, providing for marriage equality in Australia. The right to marry is no longer determined by sex or gender. Marriage is now defined in the Marriage Act as the 'union of two people to the exclusion of all others, voluntarily entered into for life'.

The Marriage Amendment Act maintains the capacity for ministers of religion and Defence Force chaplains to refuse to solemnise a marriage in specified circumstances, including where refusing to solemnise a marriage would conform to the doctrines, tenets or beliefs of the religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion. The Act creates a new category of 'religious marriage celebrants' who may refuse to solemnise a marriage on the basis of their religious beliefs. Religious bodies may act in accordance with their doctrines, tenets and beliefs, or where it is necessary to avoid injury to the religious susceptibilities of adherents of that religion, in providing facilities, goods and services in connection with the solemnisation of a marriage.

The Marriage Amendment Act also amends the Sex Discrimination Act to repeal the exemption in subsection 40(5) and a related definition. The consequence of this repeal is that refusals to make, issue and alter official records of a person's sex on the basis that the person is married, even if the refusal is required to be made under State or Territory legislation, will no longer be exempt from the protections against discrimination in Division 2 of the Sex Discrimination Act. Such refusals will therefore be unlawful.

Repealing subsection 40(5) is intended to provide a catalyst for States and Territories with such laws (which includes all States and Territories other than the Australian Capital Territory and South Australia) to amend them. Repealing subsection 40(5) will enable complaints of discrimination to be brought under the Sex Discrimination Act.

The Australian Government acknowledges that many Australians are concerned by the impact that changes to the Marriage Act will have on the rights to religious freedom. That is why the Australian Government initiated the Review of Religious Freedom, which is being chaired by the Hon Phillip Ruddock and is examining whether Australian law adequately protects the human right to freedom of religion. Mr Ruddock will provide his report to the Australian Government in the first half of 2018.

Thank you again for bringing this petition to my attention. I trust this information is of assistance.

Yours sincerely

from the Attorney-General, The Hon Christian Porter MP