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Act No. 129 of 2017 as made
An Act to amend the law relating to the definition of marriage and protect religious freedoms, and for related purposes
Administered by: Attorney-General's
Originating Bill: Marriage Amendment (Definition and Religious Freedoms) Bill 2017
Registered 08 Dec 2017
Date of Assent 08 Dec 2017
Table of contents.

Commonwealth Coat of Arms of Australia

 

 

 

 

 

 

Marriage Amendment (Definition and Religious Freedoms) Act 2017

 

No. 129, 2017

 

 

 

 

 

An Act to amend the law relating to the definition of marriage and protect religious freedoms, and for related purposes

  

  


Contents

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

2............ Commencement................................................................................... 2

3............ Schedules............................................................................................ 3

Schedule 1—Amendments                                                                                                4

Part 1—Main amendments                                                                                         4

Marriage Act 1961                                                                                                      4

Part 2—Amendment of the Sex Discrimination Act 1984                      17

Sex Discrimination Act 1984                                                                                   17

Part 3—Amendments if Schedule 9 to the Civil Law and Justice Legislation Amendment Act 2017 not yet commenced                                                                                            18

Marriage Act 1961                                                                                                    18

Part 4—Amendments once Schedule 9 to the Civil Law and Justice Legislation Amendment Act 2017 commences                                                                                                     19

Marriage Act 1961                                                                                                    19

Part 5—Application and transitional provisions                                            20

Schedule 2—Additional amendment of the Sex Discrimination Act 1984               22

Sex Discrimination Act 1984                                                                                   22

Schedule 3—Consequential amendments                                                              23

Part 1—Attorney‑General                                                                                         23

Acts Interpretation Act 1901                                                                                   23

Defence Force Discipline Appeals Act 1955                                                        23

Defence (Visiting Forces) Act 1963                                                                       24

Evidence Act 1995                                                                                                     24

Family Law Act 1975                                                                                                24

Financial Transaction Reports Act 1988                                                             26

Maintenance Orders (Commonwealth Officers) Act 1966                                 26

Marriage Act 1961                                                                                                    26

Part 2—Defence                                                                                                            28

Australian Defence Force Cover Act 2015                                                           28

Defence Force Retirement and Death Benefits Act 1973                                   28

Part 3—Employment                                                                                                   29

Safety, Rehabilitation and Compensation Act 1988                                          29

Seafarers Rehabilitation and Compensation Act 1992                                     29

Part 4—Finance                                                                                                              30

Federal Circuit Court of Australia Act 1999                                                       30

Governor‑General Act 1974                                                                                    30

Judges’ Pensions Act 1968                                                                                      30

Parliamentary Contributory Superannuation Act 1948                                   30

Superannuation Act 1976                                                                                        30

Part 5—Immigration and Border Protection                                                   31

Migration Act 1958                                                                                                   31

Part 6—Veterans’ Affairs                                                                                         32

Military Rehabilitation and Compensation Act 2004                                       32

Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988  32

Schedule 4—Additional application and transitional provisions            33

Part 1—Application and transitional provisions relating to family law matters  33

Division 1—Preliminary                                                                                            33

Division 2—Matters under the Family Law Act 1975                                        33

Division 3—Matters under the Family Court Act 1997 (WA)                           37

Part 2—Other transitional provisions                                                                  41

Part 3—Transitional rules                                                                                          42

 


Commonwealth Coat of Arms of Australia

 

 

Marriage Amendment (Definition and Religious Freedoms) Act 2017

No. 129, 2017

 

 

 

An Act to amend the law relating to the definition of marriage and protect religious freedoms, and for related purposes

[Assented to 8 December 2017]

The Parliament of Australia enacts:

1  Short title

                   This Act is the Marriage Amendment (Definition and Religious Freedoms) Act 2017.

2  Commencement

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

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

8 December 2017

2.  Schedule 1, Parts 1 and 2

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.

9 December 2017

(F2017N00098)

3.  Schedule 1, Part 3

At the same time as the provisions covered by table item 2.

However, if Schedule 9 to the Civil Law and Justice Legislation Amendment Act 2017 commences at or before that time, the provisions covered by this table item do not commence at all.

9 December 2017

4.  Schedule 1, Part 4

The later of:

(a) the commencement of the provisions covered by table item 2; and

(b) immediately after the commencement of Schedule 9 to the Civil Law and Justice Legislation Amendment Act 2017.

However, if Schedule 9 to the Civil Law and Justice Legislation Amendment Act 2017 does not commence, the provisions covered by this table item do not commence at all.

 

5.  Schedule 1, Part 5

At the same time as the provisions covered by table item 2.

9 December 2017

6.  Schedule 2

The day after the end of the period of 12 months starting on the day the provisions covered by table item 2 commence.

9 December 2018

7.  Schedules 3 and 4

At the same time as the provisions covered by table item 2.

9 December 2017

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

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

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Amendments

Part 1Main amendments

Marriage Act 1961

1  After section 2

Insert:

2A  Objects of this Act

                   It is an object of this Act to create a legal framework:

                     (a)  to allow civil celebrants to solemnise marriage, understood as the union of 2 people to the exclusion of all others, voluntarily entered into for life; and

                     (b)  to allow ministers of religion to solemnise marriage, respecting the doctrines, tenets and beliefs of their religion, the views of their religious community or their own religious beliefs; and

                     (c)  to allow equal access to marriage while protecting religious freedom in relation to marriage.

2  Subsection 5(1) (definition of authorised celebrant)

Repeal the definition, substitute:

authorised celebrant means:

                     (a)  in relation to a marriage proposed to be solemnised in Australia:

                              (i)  a minister of religion registered under Subdivision A of Division 1 of Part IV; or

                             (ii)  a person authorised to solemnise marriages under Subdivision B of Division 1 of Part IV; or

                            (iii)  a marriage celebrant; or

                            (iv)  a religious marriage celebrant; or

                     (b)  in relation to a marriage proposed to be solemnised in accordance with Division 3 of Part V:

                              (i)  a chaplain; or

                             (ii)  an officer (within the meaning of the Defence Act 1903), other than a chaplain, authorised by the Chief of the Defence Force under section 71A to solemnise marriages under that Division.

3  Subsection 5(1) (definition of marriage)

Omit “a man and a woman”, substitute “2 people”.

4  Subsection 5(1) (paragraph (c) of the definition of prescribed authority)

Omit “a chaplain”, substitute “a chaplain or an officer (within the meaning of the Defence Act 1903), other than a chaplain, authorised by the Chief of the Defence Force under section 71A to solemnise marriages under that Division”.

5  Subsection 5(1)

Insert:

religious marriage celebrant means a person identified as a religious marriage celebrant on the register of marriage celebrants under Subdivision D of Division 1 of Part IV.

6  Paragraph 21(2)(b)

Omit “the chaplain”, substitute “the authorised celebrant”.

7  Paragraph 23B(2)(b)

Omit “a brother and a sister”, substitute “2 siblings”.

8  After section 39D

Insert:

Subdivision DReligious marriage celebrants

39DA  Entitlement to be identified as a religious marriage celebrant  on the register of marriage celebrants

                   A person is entitled to be identified as a religious marriage celebrant on the register of marriage celebrants if:

                     (a)  the person is registered as a marriage celebrant under Subdivision C of this Division; and

                     (b)  the person is a minister of religion.

39DB  Request to be identified as a religious marriage celebrant on the register of marriage celebrants

             (1)  A person may, in writing, give the Registrar of Marriage Celebrants notice that the person wishes to be identified as a religious marriage celebrant on the register of marriage celebrants.

             (2)  The notice must be in a form approved by the Registrar, and include all of the information required by the form.

39DC  Identification as a religious marriage celebrant

                   The Registrar of Marriage Celebrants must identify a person as a religious marriage celebrant on the register of marriage celebrants if:

                     (a)  the person has given the Registrar notice in accordance with section 39DB that the person wishes to be identified as a religious marriage celebrant on the register; and

                     (b)  the person is entitled to be identified as a religious marriage celebrant on the register.

39DD  Transitional provisions for existing marriage celebrants

Marriage celebrants who are ministers of religion, but not ministers of religion of a recognised denomination

             (1)  The Registrar of Marriage Celebrants must identify a person as a religious marriage celebrant on the register of marriage celebrants if:

                     (a)  the person was registered as a marriage celebrant under Subdivision C of this Division immediately before Part 1 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced; and

                     (b)  the person is a minister of religion.

Marriage celebrants who wish to be religious marriage celebrants on the basis of their religious beliefs

             (2)  The Registrar of Marriage Celebrants must identify a person as a religious marriage celebrant on the register of marriage celebrants if:

                     (a)  the person was registered as a marriage celebrant under Subdivision C of this Division immediately before Part 1 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced; and

                     (b)  the person gives the Registrar notice that the person wishes to be identified as a religious marriage celebrant on the register:

                              (i)  in writing; and

                             (ii)  in a form approved by the Registrar; and

                            (iii)  within 90 days after Part 1 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commences; and

                     (c)  the choice is based on the person’s religious beliefs.

39DE  Process of identification on the register as a religious marriage celebrant

             (1)  The Registrar identifies a person as a religious marriage celebrant on the register of marriage celebrants by annotating the register to include that detail.

             (2)  If the Registrar identifies a person as a religious marriage celebrant on the register of marriage celebrants, the Registrar must, as soon as practicable, give the person written notice of that fact.

             (3)  If the Registrar decides not to identify a person as a religious marriage celebrant on the register of marriage celebrants, the Registrar must, as soon as practicable, inform the person in writing of:

                     (a)  the decision; and

                     (b)  the reasons for it; and

                     (c)  the person’s right under section 39J to apply for a review of the decision.

Subdivision EGeneral provisions relating to all marriage celebrants

9  After paragraph 39G(1)(c)

Insert:

            ; and (d)  disclose that the celebrant is a marriage celebrant, and whether or not the celebrant is a religious marriage celebrant, in any document relating to the performance of services as a marriage celebrant (including advertisements) by the celebrant.

10  After paragraph 39I(1)(a)

Insert:

                    (aa)  is satisfied that the marriage celebrant is no longer entitled to be identified as a religious marriage celebrant on the register of marriage celebrants; or

11  At the end of subsection 39I(1)

Add:

               ; or (f)  is satisfied that the marriage celebrant’s notice under section 39DB or paragraph 39DD(2)(b) (notice requesting to be identified as a religious marriage celebrant) was known by the marriage celebrant to be false or misleading in a material particular.

12  After paragraph 39I(2)(d)

Insert:

               ; or (e)  if the marriage celebrant is identified as a religious marriage celebrant on the register of marriage celebrants:

                              (i)  remove the identification of the marriage celebrant as a religious marriage celebrant from the register for a period (the suspension period) of up to 6 months by annotating the register of marriage celebrants to include a statement that the celebrant is not identified as a religious marriage celebrant, and the dates of the start and end of the suspension period; or

                             (ii)  remove the identification of the marriage celebrant as a religious marriage celebrant permanently from the register.

13  After subsection 39I(3)

Insert:

          (3A)  If the Registrar removes the identification of a marriage celebrant as a religious marriage celebrant for any period under paragraph (2)(e), section 47A does not apply in respect of the celebrant during that period.

14  Subsection 39I(4)

After “disciplinary measures against a marriage celebrant”, insert “(including a religious marriage celebrant)”.

15  At the end of subsection 39J(1)

Add:

               ; or (d)  not to identify a person as a religious marriage celebrant on the register of marriage celebrants; or

                     (e)  to remove the identification of a person as a religious marriage celebrant from the register of marriage celebrants, either for a specified period or permanently.

16  After subsection 39J(2)

Insert:

          (2A)  For the purposes of both the making of an application under subsection (1) and the operation of the Administrative Appeals Tribunal Act 1975 in relation to such an application, if:

                     (a)  a person has given notice under section 39DB or paragraph 39DD(2)(b) (notice requesting to be identified as a religious marriage celebrant); and

                     (b)  at the end of 3 months after the day on which the notice was given, the person has not been:

                              (i)  identified as a religious marriage celebrant on the register of marriage celebrants; or

                             (ii)  notified by the Registrar that the Registrar has decided not to identify the person as a religious marriage celebrant on the register of marriage celebrants;

the Registrar is taken to have decided, on the last day of the 3 month period, not to identify that person as a religious marriage celebrant on the register of marriage celebrants.

17  After paragraph 39M(c)

Insert:

                 or (d)  a person was identified as a religious marriage celebrant on the register of marriage celebrants; or

                     (e)  a person was not identified as a religious marriage celebrant on the register of marriage celebrants;

18  Subsection 45(2)

After “or husband”, insert “, or spouse”.

19  Subsection 46(1)

Omit “a man and a woman”, substitute “2 people”.

20  Section 47

Repeal the section, substitute:

47  Ministers of religion may refuse to solemnise marriages

Refusing to solemnise a marriage despite this Part

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

             (2)  In particular, nothing in this Part prevents a minister of religion from:

                     (a)  making it a condition of solemnising a marriage that:

                              (i)  notice of the intended marriage is given to the minister earlier than this Act requires; or

                             (ii)  additional requirements to those provided by this Act are complied with; and

                     (b)  refusing to solemnise the marriage if the condition is not observed.

Refusing to solemnise a marriage on the basis of religious beliefs etc.

             (3)  A minister of religion may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:

                     (a)  the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister’s religious body or religious organisation;

                     (b)  the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;

                     (c)  the minister’s religious beliefs do not allow the minister to solemnise the marriage.

Grounds for refusal not limited by this section

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

21  Before section 48

Insert:

47A  Religious marriage celebrants may refuse to solemnise marriages

             (1)  A religious marriage celebrant may refuse to solemnise a marriage despite anything in this Part, if the celebrant’s religious beliefs do not allow the celebrant to solemnise the marriage.

Grounds for refusal not limited by this section

             (2)  This section does not limit the grounds on which a religious marriage celebrant may refuse to solemnise a marriage.

47B  Bodies established for religious purposes may refuse to make facilities available or provide goods or services

             (1)  A body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if the refusal:

                     (a)  conforms to the doctrines, tenets or beliefs of the religion of the body; or

                     (b)  is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

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

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

             (4)  To avoid doubt, a reference to a body established for religious purposes has the same meaning in this section as it has in section 37 of the Sex Discrimination Act 1984.

             (5)  For the purposes of subsection (1), a purpose is reasonably incidental to the solemnisation of marriage if it is intrinsic to, or directly associated with, the solemnisation of the marriage.

22  Subsection 71(1)

Omit “a chaplain”, substitute “an authorised celebrant”.

23  After section 71

Insert:

71A  Marriage officers

                   The Chief of the Defence Force may, by instrument in writing, authorise an officer (within the meaning of the Defence Act 1903), other than a chaplain, to solemnise marriages under this Division.

24  Paragraphs 72(1)(a) and (b)

Omit “the chaplain” (wherever occurring), substitute “the authorised celebrant”.

25  Subsection 72(2)

Omit “the chaplain” (wherever occurring), substitute “the authorised celebrant”.

26  Subsection 72(2)

After “or husband”, insert “, or spouse”.

27  Section 74 (heading)

Omit “chaplain”, substitute “authorised celebrant”.

28  Subsection 74(1)

Omit “the chaplain”, substitute “the authorised celebrant”.

29  Subsection 74(3)

Omit “A chaplain”, substitute “An authorised celebrant”.

30  Section 75 (heading)

Omit “Chaplain”, substitute “Authorised celebrant”.

31  Section 75

Omit “A chaplain”, substitute “An authorised celebrant”.

32  Section 75

Omit “the chaplain”, substitute “the authorised celebrant”.

33  Subsections 76(1), 77(1) and 78(2)

Omit “the chaplain”, substitute “the authorised celebrant”.

34  Section 79 (heading)

Omit “Chaplain”, substitute “Authorised celebrant”.

35  Section 79

Omit “A chaplain”, substitute “An authorised celebrant”.

36  Section 79

Omit “the chaplain”, substitute “the authorised celebrant”.

37  Subsection 80(1)

Omit “a chaplain”, substitute “an authorised celebrant”.

38  Subsection 80(1)

Omit “the chaplain”, substitute “the authorised celebrant”.

39  Paragraphs 80(2)(a) and (c)

Omit “the chaplain”, substitute “the authorised celebrant”.

40  Subsection 80(4)

Omit “The chaplain”, substitute “The authorised celebrant”.

41  Subsections 80(5) and (6)

Omit “the chaplain”, substitute “the authorised celebrant”.

42  Subsection 80(8)

Omit “a chaplain”, substitute “an authorised celebrant”.

43  Subsection 80(9)

Omit “the chaplain” (first occurring), substitute “the authorised celebrant”.

44  Paragraph 80(9)(b)

Omit “the chaplain”, substitute “the authorised celebrant”.

45  Subsection 80(10)

Omit “a chaplain”, substitute “an authorised celebrant”.

46  Section 81

Omit “A chaplain”, substitute “(1) An authorised celebrant (including a chaplain)”.

47  Section 81

Omit “the chaplain” (wherever occurring), substitute “the authorised celebrant”.

48  At the end of section 81

Add:

Refusing to solemnise a marriage on the basis of religious beliefs etc.

             (2)  A chaplain may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:

                     (a)  the refusal conforms to the doctrines, tenets or beliefs of the religion of the chaplain’s religious body or religious organisation;

                     (b)  the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;

                     (c)  the chaplain’s religious beliefs do not allow the chaplain to solemnise the marriage.

Grounds for refusal not limited by this section

             (3)  This section does not limit the grounds on which an authorised celebrant (including a chaplain) may refuse to solemnise a marriage.

49  Subsection 83(2)

Omit “a chaplain”, substitute “an authorised celebrant”.

50  Section 84 (heading)

Omit “a chaplain”, substitute “an authorised celebrant”.

51  Paragraph 84(1)(a)

Omit “a chaplain”, substitute “an authorised celebrant”.

52  Paragraphs 84(1)(b) and (c)

Omit “the chaplain”, substitute “the authorised celebrant”.

53  Subsection 84(1)

Omit “the chaplain” (last occurring), substitute “the authorised celebrant”.

54  Paragraph 85(1)(b)

Omit “a chaplain”, substitute “an authorised celebrant”.

55  Paragraph 85(1)(c)

Omit “the chaplain”, substitute “the authorised celebrant”.

56  Subsection 85(1)

Omit “the chaplain” (last occurring), substitute “the authorised celebrant”.

57  Subsection 88B(4)

Repeal the subsection.

58  Section 88EA

Repeal the section.

59  Subsection 99(3)

Omit “A chaplain”, substitute “An authorised celebrant”.

60  Subsection 116(2)

Omit “or chaplain” (wherever occurring).

61  Subsections 117(1) and (2)

After “other than Subdivision C”, insert “or D”.

62  Paragraph 119(3)(f)

Omit “chaplain”, substitute “authorised celebrant”.

Part 2Amendment of the Sex Discrimination Act 1984

Sex Discrimination Act 1984

63  Subsection 40(2A)

Repeal the subsection, substitute:

          (2A)  A minister of religion (as defined in subsection 5(1) of the Marriage Act 1961) may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if any of the circumstances mentioned in paragraph 47(3)(a), (b) or (c) of the Marriage Act 1961 apply.

       (2AA)  A religious marriage celebrant (as defined in subsection 5(1) of the Marriage Act 1961) may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if:

                     (a)  the identification of the person as a religious marriage celebrant on the register of marriage celebrants has not been removed at the time the marriage is solemnised; and

                     (b)  the circumstances mentioned in subsection 47A(1) of the Marriage Act 1961 apply.

       (2AB)  A chaplain in the Defence Force may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if any of the circumstances mentioned in paragraph 81(2)(a), (b) or (c) of the Marriage Act 1961 apply.

Note:          Paragraph 37(1)(d) also provides that nothing in Division 1 or 2 affects any act or practice of a body established for religious purposes that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

Part 3Amendments if Schedule 9 to the Civil Law and Justice Legislation Amendment Act 2017 not yet commenced

Marriage Act 1961

64  Paragraph 115(2)(b)

Repeal the paragraph, substitute:

                     (b)  in respect of each other person:

                              (i)  the person’s full name, designation (if any) and address; and

                             (ii)  whether the person is identified as a religious marriage celebrant on the register of marriage celebrants; and

                            (iii)  where appropriate, the religious body or religious organisation to which the person belongs.

65  The Schedule (table item 1 of Part III)

Omit “by a husband and wife jointly”, substitute “by 2 people jointly”.

Part 4Amendments once Schedule 9 to the Civil Law and Justice Legislation Amendment Act 2017 commences

Marriage Act 1961

66  After paragraph 115(1)(ab)

Insert:

                    (ac)  a list of the persons who are religious marriage celebrants; and

67  Subsection 115(2) (after table item 3)

Insert:

3A

paragraph (1)(ac)

the information required to be entered in the register of marriage celebrants for the purposes of subsection 39D(5); and

where appropriate, the religious body or religious organisation to which the person belongs.

68  Subsection 115(3)

Omit “paragraph (1)(a), (aa) or (ab)”, substitute “paragraph (1)(a), (aa), (ab) or (ac)”.

Part 5Application and transitional provisions

69  Definitions

In this Part:

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

70  Application of amendments

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

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

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

71  Recognition of certain marriages by foreign diplomatic or consular officers that occurred in Australia before commencement

(1)       A marriage is recognised as valid in Australia if:

                     (a)  the marriage was solemnised in Australia, before the commencement of this item, by or in the presence of a diplomatic or consular officer of a foreign country (whether or not the country was a proclaimed overseas country at the time the marriage was solemnised); and

                     (b)  at the time the marriage was solemnised:

                              (i)  the marriage was not recognised in Australia as valid because the marriage was not the union of a man and a woman; and

                             (ii)  the marriage was recognised as valid under the law of the foreign country; and

                     (c)  had the marriage occurred in the foreign country at the time the marriage was solemnised, the marriage would, after items 57 and 58 of this Schedule commence, be recognised as valid under Part VA of the Marriage Act 1961.

(2)       In this item:

Australia includes the external Territories.

diplomatic or consular officer has the meaning given by section 52 of the Marriage Act 1961.

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

Schedule 2Additional amendment of the Sex Discrimination Act 1984

  

Sex Discrimination Act 1984

1  Subsection 4(1) (definition of official record of a person’s sex)

Repeal the definition.

2  Subsection 40(5)

Repeal the subsection.

Schedule 3Consequential amendments

Part 1Attorney‑General

Acts Interpretation Act 1901

1  Section 2B

Insert:

spouse: see section 2CA.

2  After section 2C

Insert:

2CA  References to spouses

             (1)  For the purposes of any Act, a person is the spouse of another person (whether of the same sex or a different sex) if the person is legally married to the other person.

             (2)  Subsection (1) has effect in addition to any provision of an Act that affects the meaning of spouse in a provision of that Act.

Example:    Spouse is defined for the purposes of an Act to include a de facto partner and a former spouse. Because of this section, a reference in the Act to a person’s spouse covers any person who is legally married to the person, in addition to any person covered by the definition in the Act.

3  Application of definition of spouse

The amendments of the Acts Interpretation Act 1901 made by this Part apply, on and after the commencement of this Part, in relation to Acts enacted and instruments made before, on or after that commencement.

Defence Force Discipline Appeals Act 1955

4  Paragraph 31(1)(c)

Omit “husband or wife” (wherever occurring), substitute “husband, wife or spouse”.

5  Application of amendment—evidence of spouses in proceedings

The amendment of the Defence Force Discipline Appeals Act 1955 made by this Part applies in relation to proceedings before the Tribunal on or after the commencement of this Part, whether instituted before or after that commencement.

Defence (Visiting Forces) Act 1963

6  Subsection 5(1) (paragraph (a) of the definition of dependant)

Omit “wife or husband”, substitute “wife, husband or spouse”.

Evidence Act 1995

7  Paragraph 73(1)(b)

Omit “a man and a woman”, substitute “2 people”.

8  Application of amendment—evidence concerning relationships

The amendment of the Evidence Act 1995 made by this Part applies in relation to evidence adduced in proceedings on or after the commencement of this Part, whether the proceedings are instituted before or after that commencement.

Family Law Act 1975

9  Subsection 4(1) (definition of child of a marriage)

Repeal the definition, substitute:

child of a marriage has a meaning affected by subsections 60F(1), (2), (3) and (4).

10  Paragraph 43(1)(a)

Omit “a man and a woman”, substitute “2 people”.

11  Subsection 55A(3)

Omit “the husband or the wife”, substitute “party to the marriage”.

12  Subsection 55A(3)

Omit “the husband and wife”, substitute “both parties to the marriage”.

13  Subsection 55A(4)

Omit “husband and wife”, substitute “parties to the marriage”.

14  Section 60E

Omit all the words after “void”, substitute “as if the purported marriage were a marriage”.

15  Subsection 60F(1)

Repeal the subsection, substitute:

             (1)  For the purposes of this Act, a child is (subject to subsections (2), (3) and (4)) a child of a marriage if:

                     (a)  the child is the child of both parties to the marriage, whether born before or after the marriage; or

                     (b)  the child is adopted after the marriage by both parties to the marriage, or by either of them with the consent of the other.

16  Subsection 60F(4A)

Repeal the subsection.

17  Subsection 98A(3)

Omit “the husband or the wife”, substitute “party to the marriage”.

18  Subsection 98A(3)

Omit “the husband and wife”, substitute “both parties to the marriage”.

19  Subsection 98A(4)

Omit “husband and wife”, substitute “parties to the marriage”.

20  Section 100 (heading)

Repeal the heading, substitute:

100  Evidence of husbands, wives or spouses

21  Application of amendments

(1)       Sections 55A, 60F and 98A of the Family Law Act 1975, as in force on and after the commencement of this Part, apply in relation to a marriage (within the meaning of the Marriage Act 1961, as amended by this Act), even if:

                     (a)  the marriage took place before that commencement; or

                     (b)  for subsections 60F(3) and (4)—the adoption of the child took place before that commencement.

(2)       Section 60E of the Family Law Act 1975, as in force on and after the commencement of this Part, applies in relation to a purported marriage (within the meaning of the Marriage Act 1961, as amended by this Act), even if the purported marriage took place before that commencement.

Financial Transaction Reports Act 1988

22  Paragraph 21A(1)(b)

Repeal the paragraph, substitute:

                     (b)  if the signatory has changed the surname by which the signatory is known to that of the signatory’s spouse or de facto spouse—by which the signatory was known before making that change; or

Maintenance Orders (Commonwealth Officers) Act 1966

23  Section 3 (definition of maintenance order)

After “wives,”, insert “husbands, spouses,”.

Marriage Act 1961

24  Subsection 42(10)

Omit “a widow or widower”, substitute “that that party’s last spouse has died”.

25  Application of amendments

            Subsection 42(10) of the Marriage Act 1961, as amended by this Part, applies in relation to a marriage (within the meaning of that Act as amended by this Act) that takes place at or after the commencement of this Part.

Part 2Defence

Australian Defence Force Cover Act 2015

26  Subsections 7(1) and (2)

Omit “husband or wife” (wherever occurring), substitute “husband, wife, spouse”.

Defence Force Retirement and Death Benefits Act 1973

27  Subsections 6A(1) and (2)

Omit “husband or wife” (wherever occurring), substitute “husband, wife, spouse”.

Part 3Employment

Safety, Rehabilitation and Compensation Act 1988

28  Subsection 4(1) (paragraph (b) of the definition of spouse)

Omit “husband or wife”, substitute “husband, wife or spouse”.

Seafarers Rehabilitation and Compensation Act 1992

29  Section 3 (paragraph (b) of the definition of spouse)

Omit “husband or wife”, substitute “husband, wife or spouse”.

Part 4Finance

Federal Circuit Court of Australia Act 1999

30  Subclause 9E(5) of Schedule 1

Omit “husband or wife” (wherever occurring), substitute “husband, wife, spouse”.

Governor‑General Act 1974

31  Subsections 2B(2) and (3)

Omit “husband or wife” (wherever occurring), substitute “husband, wife, spouse”.

Judges’ Pensions Act 1968

32  Subsections 4AB(1) and (2)

Omit “husband or wife” (wherever occurring), substitute “husband, wife, spouse”.

Parliamentary Contributory Superannuation Act 1948

33  Subsections 4B(1) and (2)

Omit “husband or wife” (wherever occurring), substitute “husband, wife, spouse”.

Superannuation Act 1976

34  Subsections 8A(1) and (2)

Omit “husband or wife” (wherever occurring), substitute “husband, wife, spouse”.

Part 5Immigration and Border Protection

Migration Act 1958

35  Subsection 5F(1)

After “another person”, insert “(whether of the same sex or a different sex)”.

36  Paragraph 5F(2)(b)

Omit “as husband and wife”, substitute “as a married couple”.

Part 6Veterans’ Affairs

Military Rehabilitation and Compensation Act 2004

37  Subsection 5(1) (paragraph (a) of the definition of partner)

Omit “husband or wife”, substitute “husband, wife or spouse”.

Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988

38  Subsection 4(1) (paragraph (b) of the definition of spouse)

Omit “husband or wife”, substitute “husband, wife or spouse”.

Schedule 4Additional application and transitional provisions

Part 1Application and transitional provisions relating to family law matters

Division 1—Preliminary

1  Definitions

(1)       In this Schedule:

pre‑commencement same‑sex marriage means a marriage (within the meaning of the Marriage Act 1961, as amended by this Act) that:

                     (a)  was solemnised before the recognition time; and

                     (b)  is recognised in Australia as valid at the recognition time because of Part 5 of Schedule 1 to this Act; and

                     (c)  would not have been so recognised apart from that Part.

recognition time means the commencement of Part 5 of Schedule 1.

(2)       A term that is used in this Schedule and defined for the purposes of the Family Law Act 1975 has the same meaning in this Schedule as it has in that Act.

Division 2—Matters under the Family Law Act 1975

2  Proceedings pending under the Family Law Act 1975 in relation to pre‑commencement same‑sex marriages

(1)       This item applies to proceedings that:

                     (a)  were pending under the Family Law Act 1975 immediately before the recognition time; and

                     (b)  related to a de facto relationship that:

                              (i)  existed before or when the proceedings were instituted; and

                             (ii)  was between 2 persons who were parties to a single pre‑commencement same‑sex marriage solemnised before the proceedings were instituted.

(2)       The proceedings continue under the Family Law Act 1975 at and after the recognition time:

                     (a)  as if they related to a marriage that had been solemnised when the pre‑commencement same‑sex marriage was solemnised; and

                     (b)  if the proceedings were a de facto financial cause—as if anything done before the recognition time for the purposes of a provision of Part VIIIAB of that Act (except Division 4 of that Part) had been done for the purposes of the corresponding provision of Part VIII of that Act.

Note 1:    Part VIII of that Act is about property, spousal maintenance and maintenance agreements relating to a marriage. Part VIIIAB of that Act is about financial matters relating to de facto relationships. Division 4 of that Part is about financial agreements.

Note 2:    Item 5 of this Schedule deals with financial agreements.

3  Cessation of maintenance at recognition time

(1)       If:

                     (a)  before the recognition time, an order was made under Part VIII of the Family Law Act 1975 with respect to the maintenance of a party to a marriage; and

                     (b)  the party later became party to a pre‑commencement same‑sex marriage;

subsections 82(4), (6), (7) and (8) of that Act apply in relation to the order as if the party had remarried at the recognition time.

(2)       If:

                     (a)  before the recognition time, an order was made under Division 2 of Part VIIIAB of the Family Law Act 1975 with respect to the maintenance of a party (the receiving party) to a de facto relationship; and

                     (b)  the receiving party later became party to a pre‑commencement same‑sex marriage with someone who was not a party to the de facto relationship;

subsections 90SJ(2), (3), (4) and (5) of that Act apply in relation to the order as if the receiving party had married at the recognition time.

4  Recognition of overseas divorces, annulments and legal separations relating to pre‑commencement same‑sex marriages

(1)       To avoid doubt, subsection 104(3) of the Family Law Act 1975 extends to a divorce, annulment or legal separation relating to a pre‑commencement same‑sex marriage, even if:

                     (a)  the relevant date (as defined in section 104 of that Act) was before the recognition time; or

                     (b)  the divorce, annulment or legal separation occurred before the recognition time.

(2)       The Family Law Act 1975 applies as if subsection 104(3) of that Act also provided for a divorce effected in accordance with the law of an overseas jurisdiction to be recognised as valid in Australia if the divorce related to a pre‑commencement same‑sex marriage and was effected before the recognition time.

(3)       For the purposes of the application of subsection 104(4) of the Family Law Act 1975 in relation to subsection 104(3) of that Act as it applies because of subitem (2), the mere fact that the divorce relates to a pre‑commencement same‑sex marriage does not mean that recognition of the divorce would manifestly be contrary to public policy.

5  Financial agreements and separation declarations

(1)       This item applies if:

                     (a)  before the recognition time, the parties to a pre‑commencement same‑sex marriage made a Part VIIIAB financial agreement relating to a contemplated, actual or former de facto relationship between them:

                              (i)  whether or not they were parties to the pre‑commencement same‑sex marriage at the time they made the agreement; and

                             (ii)  whether or not anyone else is a party to the agreement; and

                     (b)  under section 90UJ of the Family Law Act 1975, the agreement is binding on the parties to the agreement immediately before the recognition time.

(2)       For the purposes of a law of the Commonwealth (including the Family Law Act 1975) at and after the recognition time, the agreement, with the necessary changes, is taken:

                     (a)  to be a financial agreement made under Part VIIIA of that Act relating to a contemplated, actual or former marriage between the parties to the pre‑commencement same‑sex marriage; and

                     (b)  to be binding on the parties to the agreement under section 90G of that Act until the agreement is terminated or set aside in accordance with that Act.

(3)       However, the agreement is taken not to include a provision that deals with a matter that could not validly have been dealt with in a Part VIIIAB financial agreement, even if the matter could validly be dealt with in a financial agreement.

(4)       Section 90E of the Family Law Act 1975 does not apply in relation to the agreement at and after the recognition time if the agreement was covered by section 90UE (agreements made in non‑referring States that become Part VIIIAB financial agreements) of that Act before that time.

Note:       Section 90E and subsection 90UH(1) of that Act set out requirements for provisions in agreements relating to the maintenance of a party or a child or children. Subsection 90UH(1) does not apply in relation to a Part VIIIAB financial agreement covered by section 90UE.

(5)       If, before the recognition time, a separation declaration was made, as described in section 90UF of the Family Law Act 1975, for the purposes of giving effect to the agreement (whether the declaration was included in the agreement or not), the declaration is taken on and after that time to be a separation declaration made as described in section 90DA of that Act.

(6)       If, before the recognition time, a separation declaration was made as described in subsection 90MP(8), (9) or (10) of the Family Law Act 1975 in relation to the agreement so far as it is a superannuation agreement for the purposes of Part VIIIB of that Act, the declaration is taken on and after that time to be a separation declaration made as described in subsection 90MP(3), (4) or (4A) of that Act.

(7)       Subitem (6) applies whether the separation declaration was included in the superannuation agreement or not.

Division 3—Matters under the Family Court Act 1997 (WA)

6  Proceedings pending under the Family Court Act 1997 (WA) before the recognition time

Application

(1)       This item applies to proceedings in a court (the WA court) that:

                     (a)  were pending under the Family Court Act 1997 (WA) (the WA Act) immediately before the recognition time; and

                     (b)  related to a de facto relationship that:

                              (i)  existed before or when the proceedings were instituted; and

                             (ii)  was between 2 persons who were parties to a single pre‑commencement same‑sex marriage solemnised before the proceedings were instituted.

Continuation of proceedings under the Family Law Act 1975

(2)       The proceedings continue under the Family Law Act 1975 (the Commonwealth Act) at and after the recognition time:

                     (a)  as if they related to a marriage that had been solemnised when the pre‑commencement same‑sex marriage was solemnised; and

                     (b)  if the proceedings were Part 5A proceedings (within the meaning of the WA Act)—as if anything done before the recognition time for the purposes of a provision of Part 5A of the WA Act (except Division 3 of that Part) had been done for the purposes of the corresponding provision of Part VIII of the Commonwealth Act.

Note 1:    Part VIII of the Commonwealth Act is about property, spousal maintenance and maintenance agreements relating to a marriage. Part 5A of the WA Act is about financial matters relating to de facto relationships. Division 3 of that Part is about financial agreements.

Note 2:    Item 8 of this Schedule deals with financial agreements made under Division 3 of Part 5A of the WA Act.

(3)       The WA court is invested with jurisdiction to hear and determine the proceedings as continued under subitem (2).

(4)       Any decision validly made by a court before the recognition time about the admissibility of particular evidence in the proceedings continues to have effect for the purposes of the proceedings after that time.

(5)       In performing duties or exercising powers in relation to the proceedings under the Commonwealth Act, a court may ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.

Appeal proceedings in Court of Appeal

(6)       If the proceedings were an appeal instituted in, or made to, the Court of Appeal under Part 7 of the WA Act, that Court may, on the application of a party or of its own motion, refer the appeal to a Full Court of the Family Court of Australia.

(7)       If an appeal is referred to a Full Court of the Family Court of Australia under subitem (6):

                     (a)  jurisdiction is conferred on the Court to hear and determine the appeal; and

                     (b)  the following provisions of the Commonwealth Act, and the standard Rules of Court made for the purposes of those provisions, apply in relation to the appeal as if it were an appeal referred to in subsection 94(1) of that Act:

                              (i)  subsection 93A(2);

                             (ii)  section 94, except subsections 94(1), (1AA), (1A) and (3);

                            (iii)  section 94AAB;

                            (iv)  section 96AA; and

                     (c)  the Full Court may proceed by way of a hearing de novo, but may receive as evidence any record of evidence given, including any affidavit filed or exhibit received in the Court of Appeal or the court from which the appeal lay.

(8)       However, subsection 94(2) of the Commonwealth Act applying because of subitem (7) does not permit the Full Court to order a re‑hearing by the Court of Appeal.

This item does not apply to proceedings about guardians

(9)       Despite subitem (1), this item does not apply to so much of the proceedings as relate to the appointment or removal under section 71 of the WA Act of a guardian.

7  Cessation of maintenance at recognition time

            If:

                     (a)  before the recognition time, an order was made under Division 2 of Part 5A of the Family Court Act 1997 (WA) with respect to the maintenance of a party (the receiving party) to a de facto relationship; and

                     (b)  the receiving party later became party to a pre‑commencement same‑sex marriage with someone who was not a party to the de facto relationship;

section 82 of the Family Law Act 1975 applies in relation to the order as if it were an order with respect to the maintenance of a party to a marriage and the party had remarried at the recognition time.

8  Financial agreements and separation declarations

(1)       This item applies if:

                     (a)  before the recognition time, the parties to a pre‑commencement same‑sex marriage made a financial agreement within the meaning of Part 5A of the Family Court Act 1997 (WA), or a former financial agreement (within the meaning of that Part), relating to a contemplated, actual or former de facto relationship between them:

                              (i)  whether or not they were parties to the pre‑commencement same‑sex marriage at the time they made the agreement; and

                             (ii)  whether or not anyone else is a party to the agreement; and

                     (b)  under section 205ZS of that Act, the agreement is binding on the parties to the agreement immediately before the recognition time.

(2)       For the purposes of a law of the Commonwealth (including the Family Law Act 1975) at and after the recognition time, the agreement, with the necessary changes, is taken:

                     (a)  to be a financial agreement made under Part VIIIA of that Act relating to a contemplated, actual or former marriage between the parties to the pre‑commencement same‑sex marriage; and

                     (b)  to be binding on the parties to the agreement under section 90G of that Act until the agreement is terminated or set aside in accordance with that Act.

(3)       However, the agreement is taken not to include a provision that deals with a matter that could not validly have been dealt with in a financial agreement within the meaning of Part 5A of the Family Court Act 1997 (WA), even if the matter could validly be dealt with in a financial agreement within the meaning of the Family Law Act 1975.

(4)       If the agreement was a former financial agreement (within the meaning of Part 5A of the Family Court Act 1997 (WA)), then section 90E of the Family Law Act 1975 (requirements for provisions in agreements relating to the maintenance of a party or a child or children) does not apply in relation to the agreement.

(5)       Section 90DA (need for separation declaration) of the Family Law Act 1975 does not apply in relation to the agreement unless the spouse parties separate, and begin living separately and apart, at or after the recognition time.

Part 2Other transitional provisions

9  Second marriage ceremonies for certain marriages by foreign diplomatic or consular officers that occurred in Australia before commencement

(1)       This item applies to a marriage (within the meaning of the Marriage Act 1961, as amended by this Act) that was solemnised:

                     (a)  in Australia, before the commencement of this item; and

                     (b)  by or in the presence of a diplomatic or consular officer of a foreign country (whether or not the country was a proclaimed overseas country at the time the marriage was solemnised).

(2)       Subsections 113(2) and (5) of the Marriage Act 1961, as in force on and after the commencement of this item, apply in relation to the marriage as if it took place outside Australia.

Part 3Transitional rules

10  Transitional rules

(1)       The Attorney‑General may, by legislative instrument, make rules (transitional rules) prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Act.

(2)       To avoid doubt, the transitional rules may not do the following:

                     (a)  create an offence or civil penalty;

                     (b)  provide powers of:

                              (i)  arrest or detention; or

                             (ii)  entry, search or seizure;

                     (c)  impose a tax;

                     (d)  set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

                     (e)  directly amend the text of an Act.

(3)       Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to transitional rules made during the period of 12 months starting on the commencement of this item.

 

 

 

 

[Minister’s second reading speech made in—

Senate on 15 November 2017

House of Representatives on 4 December 2017]

(257/17)