Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill
The submission to the Senate Select Committee (the Committee) on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill (the Exposure Draft) was prepared by the Law Council.
Owing to time constraints for which to provide a submission, the Law Council has not had the opportunity to seek the views of all of its Constituent Bodies on the Exposure Draft. The Law Council notes that the Senate Select Committee considering the Exposure Draft was established on 30 November 2016 and that the call for submissions was put out in early December 2016. Submissions to the Committee were due on 13 January 2017. The Law Council considers the consultation period inadequate, having regard to both the exceptional importance of the subject matter, as well as the time of year when most if not all organisations are closed and consultation with members difficult.
The Exposure Draft would legalise same-sex marriage in Australia by way of amendments to the Marriage Act 1961 (Cth) (the Marriage Act). It would also exempt religious ministers and civil marriage celebrants3 from having to solemnise same-sex marriages.
The Law Council welcomes the Committee’s inquiry as an opportunity for the Parliament to consider and recommend protections for religious freedoms while removing discrimination.
The Law Council, Law Institute of Victoria and Queensland Law Society are generally supportive of the proposed amendments in the Exposure Draft. The current exclusion of same-sex couples from the Marriage Act denies them a right that is afforded to all other Australians and is inconsistent with the right to be free from discrimination.
The Law Council, Law Institute of Victoria and the Queensland Law Society support the protection of religious freedom and considers it reasonable to allow ministers of religion to conduct religious marriage ceremonies in accordance with the tenets and doctrines of their religion.
However, the proposed exemptions for marriage celebrants, ‘conscientious belief’ or ‘religious bodies and organisations’ are not supported.
Key recommendations of this submission include:
- Proposed s 47A relating to an exemption for marriage celebrants from solemnising same-sex marriages should be removed from the Exposure Draft.
- The ‘conscientious belief’ exemption should be removed from the Exposure Draft.
- Proposed section 47B relating to an exemption for religious bodies and organisations from providing facilities or goods and services should be removed from the Exposure Draft.
- The proposed amendment to the Sex Discrimination Act 1984 (Cth) relating to exemptions for anything done under the Marriage Act should be removed from the Exposure Draft.
- The Exposure Draft should include a provision to ensure that liabilities (such as tax liabilities) are not imposed retrospectively as a consequence of the retrospective recognition of a foreign same-sex marriage.