Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MARRIAGE AMENDMENT (MARRIAGE EQUALITY) BILL 2016
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
(circulated by the authority of the Hon Tanya Plibersek MP)
MARRIAGE AMENDMENT (MARRIAGE EQUALITY) BILL 2016
OUTLINE
The Marriage Amendment (Marriage Equality) Bill 2016 will allow Australians to marry
regardless of their sex, sexual orientation, gender identity or intersex status.
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides for the Act, when enacted, to be cited as the Marriage Amendment
(Marriage Equality) Act 2016.
Clause 2 - Commencement
This clause provides for the commencement of the whole of the Act on the day after the
Act receives the Royal Assent.
Clause 3 - Objects
This clause states that the object of the Act is to allow Australians to marry regardless of
their sex, sexual orientation, gender identity or intersex status.
Clause 4 - Schedules
This clause provides that the legislation that is specified in a Schedule to the Act is
amended or repealed as set out in the applicable items in the Schedule concerned, and
any other item in a Schedule to the Act has effect according to its terms.
Schedule 1 - Amendments to 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."
Item 2 - Paragraphs 23(2)(b) and 23B(2)(b)
Item 2 omits "a brother and a sister" and substitutes "siblings", which relates to marriages
of parties within a prohibited relationship.
Item 3 - Subsection 45(2)
Item 3 inserts "or partner" 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" to "husband" or "wife".
Item 4 - Subsection 46(1)
Item 4 amends the words required to be spoken by the authorised celebrant to the parties
replacing the term 'man and a woman' with the gender neutral phrase 'two people'.
Item 5 - Section 47
This item amends section 47 to clarify that nothing in the Marriage Act 1961, or any other
law, obliges an authorised celebrant, being a minister of religion, to solemnise any
marriage.
Item 6 - At the end of section 47
This item adds a note to the end of section 47 to indicate that one effect of this provision is
that a minister of religion cannot be required to solemnise a marriage where the parties to
the marriage are of the same sex.
Item 7 - Subsection 72(2)
Item 7 inserts "or partner" 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.
Item 8 - Section 88EA
Item 8 repeals section 88EA. The effect of this amendment is to permit the recognition of
a marriage solemnised in a foreign country regardless of the sex, sexual orientation,
gender identity or intersex status of the parties to that marriage.
Item 9 - Part III of the Schedule (table item 1)
Item 9 amends the Schedule that deals with 'persons whose consent is required to the
marriage of a minor'. This item amends item 1 of the table in Part III of the Schedule to
replace the term 'husband and wife' with the gender neutral phrase 'two people'.
Item 10
This item inserts a regulation-making power to allow legislation to be amended
consequentially, or in relation to, the enactment of the Act.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Marriage Amendment (Marriage Equality) 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 Marriage Amendment (Marriage Equality) Bill 2016 will allow Australians to marry
regardless of their sex, sexual orientation, gender identity or intersex status.
Human rights implications
The bill is not detrimental to any applicable rights or freedoms.
The bill positively engages with the following rights and freedoms:
ICCPR - Article 18
The bill acknowledges the right to freedom of thought, conscience and religion in Article 18
of the ICCPR. The bill preserves and clarifies the operation of section 47(a) of the
Marriage Act 1961 which provides that an authorised celebrant, being a minister of
religion, is not obliged to solemnise any marriage. One effect of this provision is that a
minister of religion is not obliged to solemnise a marriage between two persons of the
same gender if to do so would be inconsistent with his or her religious beliefs.
ICCPR - Article 23
The bill promotes the right to of men and women of marriageable age to marry and found a
family in Article 23 of the ICCPR. The bill allows Australians to marry regardless of their
sex, sexual orientation, gender identity or intersex status. This removes discrimination
which currently restricts access to marriage to heterosexual couples.
ICCPR - Article 26
The bill enhances the right to all persons to the equal protection of the law in Article 26 of
the ICCPR. The bill allows Australians to marry regardless of their sex, sexual orientation,
gender identity or intersex status. This extends the equal protection of the law to all
Australians by ensuring that access to the institution of marriage is not limited to
heterosexual couples.
Conclusion
This bill is compatible with human rights and it promotes and enhances human rights
under the ICCPR.
Hon Tanya Plibersek MP