Update: The Marriage Amendment (Definition and Religious Freedoms) Bill 2017  received Royal Assent on 8 December 2017 and the majority of provisions of the new legislation commenced on 9 December 2017 (Proclamation F2017N00098).

Legislation legalising same-sex marriage in Australia has passed the House of Representatives, and is now awaiting Royal Assent.

The majority of the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (the Bill) will commence on the earlier of a day to be fixed by Proclamation, or the day after the end of the 28 day period beginning from the day the legislation receives Royal Assent: cl 2.

The key provisions of the Bill will:

• re-define marriage as “a union of 2 people, to the exclusion of all others, voluntarily entered into for life”
• allow ministers of religion, “religious marriage celebrants” and Australian Defence Force chaplains to refuse to solemnise a marriage in accordance with their religious beliefs
• allow bodies established for religious purposes to refuse to make a facility available, or to provide goods or services in relation to the solemnisation of a marriage, if the refusal “conforms to the doctrines, tenets or beliefs of the religion of the body” or “is necessary to avoid injury to the religious susceptibilities of adherents of that religion”. This is consistent with the existing religious exemption in s 37 of the Sex Discrimination Act 1984 (Cth).

Protection of religious freedom in Australia to be examined separately

A number of politicians unsuccessfully proposed amendments to the original Bill aimed at strengthening the protection of religious freedom.

The debate around this issue triggered the establishment of an expert panel to examine whether Australian law adequately protects religious freedom. The expert panel will be chaired by the Hon Philip Ruddock.

In a media release about the expert panel, Prime Minister Malcolm Turnbull stated:

“Any reforms to protect religious freedom at large should be undertaken carefully. There is a high risk of unintended consequences when Parliament attempts to legislate protections for basic rights and freedoms, such as freedom of religion. The Government is particularly concerned to prevent uncertainties caused by generally worded Bill of Rights-style declarations.”

Also, an inquiry into the status of freedom of religion or belief is currently being undertaken by the Joint Standing Committee on Foreign Affairs, Defence and Trade.

The Joint Standing Committee has released an interim report on the legal foundations of religious freedom in Australia which highlights, among other things, the limited protection of religious freedom and belief at a federal level, and discusses the potential for tension between religious freedom and rights to equality and non-discrimination.

Depending on the outcome of these inquiries, 2018 may see some significant changes to anti-discrimination and other laws dealing with religious freedom.

Follow the progress of the Bill and the inquiries into protection of religious freedom

Find out about the history and progress of the Bill:

• Senate passes same-sex marriage Bill, 30 November 2017
• “Yes” result in same-sex marriage survey – what’s next?, 15 November 2017.

Follow the progress of the Bill, and the inquiries into the protection of religious freedom, via the Wolters Kluwer (CCH) Au & NZ Equal Opportunity Law and Practice Reporter.