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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.
First, the Bill reduces the extent to which government interferes in private life. It does this by
allowing all Australians, regardless of sex, sexual orientation, and gender identity, the right to
marry.
Second, 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.
Third, 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repealed.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 provides 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 14th 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:
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(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.
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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.
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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.
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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.
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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.
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