2016-2017-2018

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

SEX DISCRIMINATION AND MARRIAGE LEGISLATION AMENDMENT (PROTECTING SUPPORTERS OF TRADITIONAL MARRIAGE) BILL 2018

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of Senator Anning)

 

 

 

 

SEX DISCRIMINATION AND MARRIAGE LEGISLATION AMENDMENT (PROTECTING SUPPORTERS OF TRADITIONAL MARRIAGE) BILL 2018

 

 

OUTLINE

 

The purpose of the Sex Discrimination and Marriage Legislation Amendment (Protecting Supporters of Traditional Marriage) Bill 2018 is protecting the sanctity of individual conscience of those who recognise marriage only as a union between a man and a woman.

 

It also protects individual clergy from being legally obliged to solemnise others against their will.

 

 

NOTES ON CLAUSES

Clause 1: Short title

1.         This clause provides for the Act, when enacted, to be cited as the Sex Discrimination and Marriage Legislation Amendment (Protecting Supporters of Traditional Marriage) Act 2018.

 

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 the Bill receives the Royal Assent.

 

3.         Part 1 of Schedule 1 (which contains the amendments to the Marriage Act 1961) will commence on the day after the Bill receives the Royal Assent. Part 2 (which contains an amendment to the Sex Discrimination Act 1984) commences at the same time.

 

Clause 3 – Schedules

 

4.         Each Act specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule.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

 

Part 1 – Main Amendments

 

Marriage Act 1961

 

Item 1 – Subsection 39

5.         Item 1 makes it clear that State and Territory officers may refuse to solemnise a marriage based upon conscience or belief.

 

 

Item 2 – Subsection 39DA(b)

 

6.         Item 2 clarifies the definition of religious celebrants.

 

Item 3 – Subsection 47AA

7.         Item 3 adds a new subsection 47AA which makes clear that no authorised celebrant (religious or non-religious) is bound to solemnise any marriage.

 

Item 4 – Subsection 47A (heading)

 

8.         Item 4 amends the heading in an avoidance of doubt provision to ensure that the amendments 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.

 

Items 5 – Subsection 47A(1)

 

9.         Item 5 amends the reference to any marriage celebrant (religious or non-religious).

 

Item 6 – Subsection 47A(2)

 

10.       Item 6 amends the reference to any marriage celebrant (religious or non-religious).

 

Item 7 – Subsection 81(2)

 

11.       Item 7 replaces the reference to chaplain with “an authorised celebrant” giving the latter the same ability to refuse to solemnise marriages as provided for chaplains in the Act.

 

Item 8 – Subsection 81(2)(a) and (c)

 

12.       Item 8 replaces the reference to chaplain with “authorised celebrant.”

 

Item 9 – Subsection 81(2)(c)

 

13.       Item 9 replaces the reference to chaplain with “authorised celebrant.”

 

 

Part 2 – Consequential Amendments

 

Sex Discrimination Act 1984

 

Item 10 – After section 38

 

14.       Item 10 of Part 2 of Schedule 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.

 

15.       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.

 

16.       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.

 

Items 11 to 14 – Subsections 40(2A), (2AA) and (2AB)

17.       Items 11 to 14 make it clear that a minister of religion and any authorised celebrant may refuse to solemnise a marriage despite anything in Division 1 or 2.

 

Part 3 – Other consequential amendments

 

Item 15 – Regulations may make consequential amendments of Acts

 

22.       Item 15 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.

 

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Sex Discrimination and Marriage Legislation Amendment (Protecting Supporters of Traditional Marriage) Bill 2018

 

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 Bill provides for freedom of conscience for both religious and non-religious private sector authorised celebrants. 

It also provides for freedom of conscience for people who provide goods, services or facilities for marriages.

 

Human rights implications

 

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.