By Ellen Bevan, Content Specialist, Wolters Kluwer.
Update: Senator Dean Smith introduced the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 into the Senate late on 15 November 2017. The Bill was read a second time, and will be debated today.
Over 61% of those who responded to the recent same-sex marriage survey have said “yes” to the question “should the law be changed to allow same-sex couples to marry”. Almost 80% of eligible Australians expressed their view, and all states and territories recorded a majority “yes” response.
The question now is how the Commonwealth Government will give effect to this result, including the impact of any legislative changes to existing anti-discrimination laws.
What happens next?
The postal vote is non-binding, however, in a press conference this morning, Prime Minister Malcolm Turnbull and Minister for Finance, Mathias Cormann, confirmed that the Government will now facilitate a free vote on a Private Members Bill to legalise same-sex marriage and to protect certain religious freedoms in relation to marriage that are perceived to be under threat.
There are two key Private Members’ Bills that are currently being circulated.
Senator Dean Smith’s draft Bill
The Marriage Amendment (Definition and Religious Freedoms) Bill 2017, was released by Senator Dean Smith, Warren Entsch MP, Trevor Evans MP, Tim Wilson MP, and Trent Zimmerman MP on 6 August 2017. A copy of this draft Bill was published by The Australian newspaper.
This appears to be the preferred Bill, and according to the ABC, Senator Smith has placed his Bill on the notice paper, which has been co-signed by Senators Linda Reynolds, Jane Hume, Penny Wong, Louise Pratt, Richard Di Natale and Skye Kakoschke-Moore.
Senator Smith’s draft Bill used the report by Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill as its starting point.
It would allow ministers of religion, “religious marriage celebrants” and Australian Defence Force (ADF) chaplains to refuse to solemnise a marriage in accordance with their religious beliefs.
It would also 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.”
Senator Smith’s Bill would not introduce a major change to existing anti-discrimination laws, as the anti-discrimination provisions of the Sex Discrimination Act 1984 (Cth) (SDA) already generally do not apply to any “act or practice of a body established for religious purposes, being an act or practice 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” (s 37).
Senator James Paterson’s draft Bill
The Marriage Amendment (Definition and Protection of Freedoms) Bill 2017, was released by Senator James Paterson on 13 November 2017.
Senator Paterson’s draft Bill would introduce more significant changes to federal anti-discrimination law.
Like Senator Smith’s Bill, this Bill allows a minister of religion, “traditional marriage celebrant”, or ADF chaplain or authorised officer to refuse to solemnise a marriage on the basis of their religious or conscientious beliefs.
However, this Bill goes further to provide, among other things, for an ability to refuse to supply goods, services, accommodation and facilities in relation to the solemnisation or celebration of a same-sex marriage where the refusal is consistent with a genuine religious or conscientious belief. This would create a limited exception to the anti-discrimination provisions of the SDA.
This Bill also creates the concepts of a “relevant marriage belief” and a “relevant belief”, which primarily refer to a religious or conscientious belief that marriage is between a man and a woman. The Bill provides protection for people or entities who hold a relevant marriage belief or a relevant belief.
Prime Minister Malcolm Turnbull has criticised Senator Paterson’s Bill, saying that it would have “virtually no prospect of getting through the Parliament”, and that “I don’t believe Australians would welcome, and certainly the Government would not countenance, making legal discrimination that is unlawful today.”
The Prime Minister has said that the Government’s goal is to have legislation passed through Parliament before Christmas this year.