Parliamentary Select Committee Releases Report On Draft Same Sex Marriage Bill

Tuesday 28 February 2017 @ 11.13 a.m. | Legal Research

A Parliamentary Select Committee in the Commonwealth has released a report on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill.  The Bill was originally drafted as the basis for on-going consultation if the Government’s same-sex marriage plebiscite had gone ahead.  Although the Plebiscite (Same-Sex Marriage) Bill 2016 (Cth) failed to pass the Senate, the Select Committee said they hoped the report would still be “a useful vehicle to seek consensus on agreed elements of the proposal, and to better identify the substantive issues that remain contested as a result of people’s varying political or philosophical perspectives.

Terms of Reference

The Committee was asked to consider the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill with particular reference to: 

  • the nature and effect of proposed exemptions for ministers of religion, marriage celebrants and religious bodies and organisations, the extent to which those exemptions prevent encroachment upon religious freedoms, and the Commonwealth Government’s justification for the proposed exemptions;
  • the nature and effect of the proposed amendment to the Sex Discrimination Act 1984 and the Commonwealth Government’s justification for it;
  • potential amendments to improve the effect of the bill and the likelihood of achieving the support of the Senate; and
  • whether there are to be any consequential amendments, and, if so, the nature and effect of those consequential amendments, and the Commonwealth Government’s justification for them.

The Committee held public hearings for the inquiry in Melbourne, Sydney and Canberra during January 2017.  They also received approximately 4800 submissions to the inquiry, although they noted that many of these were “form letters” which expressed general support or opposition to same sex marriage but which did not contain substantive commentary on the exposure draft.

Key Issues

The Committee identified a number of issues that they felt would require further in-depth consideration:

  • Definition of ‘marriage’ – The Committee supported the use of the term ‘two people’ to include marriage between transgender and intersex persons
  • Exemptions for ministers of religion – There was “broad agreement” for ministers of religion to have the right to refuse to solemnise a marriage not in accordance with their religion.  The Committee noted that in particular that “there are inconsistencies between proposed exemptions in the Exposure Draft and exemptions in the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act). In particular, proposed new paragraphs 47(3)(b) and 47B(1)(a) would not be consistent with section 37 of the Sex Discrimination Act.”
  • Exemption for marriage celebrants – The Committee found there was “some confusion about marriage celebrants and their current ability to refuse to solemnise a marriage”, and proposed a new category of “Religious Marriage Celebrants” who would be separate from the current civil celebrants and afforded the same exemptions as ministers of religion.
  • Exemption for a religious body or organisation – The Committee said there was a “range of views on whether a 'religious body or a religious organisation' should have a right to refuse to provide facilities, goods or services for, or 'reasonably incidental to', same-sex marriages”, and sought more clarity on how this would apply, for example whether commercial entities owned by religious organisations would be included.
  • Conscientious belief  - The Committee noted that “providing ministers of religion and civil celebrants with a right to refuse to solemnise a marriage based on 'conscientious belief' was controversial, including due to a lack of precedent under Australian law.”  The Committee called for greater consideration of “the complex question of whether the manifestation of a non-religious conscientious belief has the same level of protection as religious belief under international human rights law in this specific area.”

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