Explainer: Marriage equality in Australia

Explainer: Marriage equality in Australia

All Australians should have the same opportunities for love, commitment and happiness.

The Human Rights Law Centre has been working with the Equality Campaign and LGBTI community organisations to campaign for a Yes vote in the Australian Marriage Law Postal Survey. We believe marriage equality is a human rights issue which is about fairness and equality of for all Australians.

What will happen if it’s a Yes result?

If the result is Yes, the Coalition Government has promised to facilitate a vote on a private member’s bill by the end of 2017.

What private member’s bills are there?

There are currently two private member’s bills set to be tabled if there’s a Yes result on 15 November 2017.

  1. Consensus Bill

    In August 2017, Liberal Senator Dean Smith released the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, which reflects the outcomes from a consensus cross-party Senate report released in early 2017. The report provides a pathway on how amendments to the Marriage Act could allow same-sex couples to marry while balancing freedom from discrimination and freedom of religion.
     
  2. Paterson Bill

    On 13 November 2017, Liberal Senator James Paterson released the Marriage Amendment (Definition and Protection of Freedoms) Bill 2017, which extends exemptions beyond the Senate report.

Consensus Bill

Who supports the Consensus Bill?

The Consensus Bill has cross-party support if there is a Yes result. It’s supported by key members of the Liberal Backbench, Labor, and the Greens.

It is also supported by many LGBTI community organisations and supporters of marriage equality as a pathway forward to achieving marriage equality before the end of the year.

The primary concern raised about the Consensus Bill is that it allows existing civil celebrants to reclassify as religious marriage celebrants (within 90 days of the legislation coming into effect) and refuse to perform same-sex marriages, even if they do not have a formal role as a minister of religion. It has also been suggested the Bill could be improved by removing the specific exemption for religious organisations providing marriage related goods and services, particularly given there is an existing exemption in federal anti-discrimination law, which already relates to all goods and services and has the same legal test.

Some criticism of the Consensus Bill has incorrectly stated that the Bill will extend the legal test for discrimination in goods and services or that it allows civil celebrants to discriminate.

What does the Consensus Bill do?

1. Marriage equality

Same-sex couples will be allowed to marry in Australia if the Consensus Bill is passed. Same-sex couples who have married overseas will also have their marriages recognised. The Consensus Bill amends the definition of marriage from the union of ‘a man and a woman’ to ‘2 people’ – which means that it is inclusive of all LGBTI people and their relationships.

2. People who solemnise a marriage in Australia

  • Ministers of religion will still be able to refuse to perform weddings on religious grounds, but the Consensus Bill clarifies that a minister of religion can refuse based on their religious organisation’s doctrine, their congregation’s needs or the minister’s religious beliefs (rather than for any reason whatsoever).
     
  • Religious marriage celebrants can refuse to perform weddings if their religious beliefs do not allow them to do so.

    This new category includes ministers of religion from religions that aren’t officially recognised, who can already refuse to perform weddings. It will also include current marriage celebrants with religious beliefs, who will have 90 days to transfer to this new category, in recognition that they became a marriage celebrant under the current definition of marriage.

    It is estimated that up to 3% of civil marriage celebrants will elect to transfer to become religious marriage celebrants after the Bill commences.

    These marriage celebrants are required to advertise themselves as a ‘religious marriage celebrant’ to ensure that couples wanting to marry will know that they may refuse to solemnise their marriage.
     
  • Civil celebrants will not be able to discriminate against a couple wanting to marry under the Bill. This would include approximately 97% of current marriage celebrants and all future marriage celebrants who are not ministers of a religion.
     
  • Registry officers also cannot refuse to marry a couple on discriminatory grounds.

3. Marriages of Defence Force members overseas

In rare situations, members of the Australian Defence Force may wish to marry while deployed overseas.

  • Chaplains: Currently, ADF Chaplains can refuse to marry a couple for a range of reasons including religious reasons. The Bill does not change this, but it does clarify the religious grounds on which a chaplain can refuse.
     
  • Marriage officers: The Consensus Bill introduces a new category of marriage officers who are ADF officers to provide a secular alternative for ADF members to marry overseas. Marriage officers cannot refuse to perform a same-sex wedding on discriminatory grounds.

4. Facilities, goods and services for wedding ceremonies and receptions

  • Religious bodies: Under existing anti-discrimination laws (e.g. s 37 Sex Discrimination Act 1984 (Cth)), bodies established for religious purposes can already refuse to provide facilities, goods and services to LGBTI people and others (single mums, divorcees or young people) in line with their religious organisation’s doctrine or their congregation’s needs.

    The Consensus Bill replicates this existing religious exemption for facilities, goods and services related to wedding ceremonies and receptions.

    For example, a religious body could refuse to hire out a church hall to a same-sex couple if their religion did not allow same-sex marriage.

  • Commercial businesses or individuals would not be able to refuse to provide facilities, goods and services on religious grounds under the Consensus Bill.

    For example, a baker could not refuse to bake a wedding cake or an Uber driver could not refuse to drive a same-sex couple to their wedding.

The Consensus Bill’s religious exemption is consistent with the Sex Discrimination Act and does not extend the legal test for religious organisations.

Paterson Bill

Who supports the Paterson Bill?

It is unclear how many parliamentarians support the Paterson Bill. Many LGBTI groups and human rights organisations have publicly criticised the bill.

What does the Paterson Bill do?

1. Marriage equality

Same-sex couples will be allowed to marry in Australia and same-sex couples who have married overseas will also have their marriages recognised. The Paterson Bill adds an additional definition of marriage as a union of ‘2 people’ to the existing definition of a ‘man and a woman’. If passed, the definition will be inclusive of all LGBTI people and their relationships.

However, the definition of marriage which is read out at weddings differs depending on who it is performed by:

  • a traditional marriage celebrant: “marriage is the union of a man and a woman”, or
  • a marriage celebrant: “marriage is the union of 2 people”.

2. People who solemnise a marriage in Australia

Not only does the Paterson Bill allow all ministers of religion and non-religious celebrants to refuse to perform a wedding on religious grounds, but also on the broad concept of conscientious belief grounds.

Conscientious belief objection

This is inconsistent with the Senate Select Committee’s report on “conscientious belief”, which noted that:

  • Allowing conscientious belief to be used to allow discrimination against a class of persons would be unprecedented under Australian law.
  • Conscientious belief as a term “lacked definition and could potentially have an unlimited scope”.
  • Same-sex couples should not be unnecessarily singled out under any marriage equality bill.
  • The ability to refuse a good or service based on conscientious belief is “controversial”.
  • The Committee is disinclined to disturb decades of anti-discrimination law and practice in Australia.

Refusal based on celebrant’s belief on a person’s sex or gender

A minister or celebrant can also disregard the current legal status of a person’s sex, gender, gender identity or intersex status if they believe the person was assigned a different sex at birth. This is an unprecedented move which overrides federal, state and territory identity documents in favour of a minister or celebrant’s subjective belief about what another person’s sex or gender should be.

Who can refuse to perform a wedding?

Currently, only ministers of religion can refuse to perform a wedding on limited grounds.

Under the Paterson Bill, all ministers of religion and celebrants would be able to refuse to perform weddings on religious or conscientious belief grounds. This applies to:

  • Ministers of religion
  • Traditional marriage celebrants: This is a new category for people whose religious or conscientious beliefs against same-sex marriage would not allow them to perform a same-sex wedding.
  • Civil celebrants
  • Registry officers

There are no provisions around celebrants being required to advertise whether or not they would refuse to perform a same-sex wedding. Unlike ministers of religion and traditional marriage celebrants who are given a specific power to refuse to perform a same sex wedding in the Paterson Bill, a celebrant or registry officer’s ability to refuse is hidden in the proposed goods and services exception.

These exceptions are one sided, the Paterson Bill does not allow a registry officer to refuse to issue a marriage certificate for a man-woman marriage, but makes it lawful for a registry officer to refuse to issue a marriage certificate for a same-sex marriage.

3. Marriages of Defence Force members overseas

In rare situations, members of the Australian Defence Force may wish to marry while deployed overseas.

  • Chaplains: Currently, ADF Chaplains can refuse to marry a couple for a range of reasons. The Bill does not change this, however it does extend the refusal to grounds to conscientious belief.
  • Authorised officers: The Paterson Bill introduces a new category of authorised officers who are ADF officers to provide a secular alternative for ADF members to marry overseas. Authorised officers can also refuse to marry a couple on religious or conscientious belief grounds.

4. Facilities, goods and services for wedding ceremonies and receptions

The Paterson Bill broadens existing exemptions to allow discrimination in the provision of goods and services: (a) from religious bodies to individuals; (b) from religious beliefs to conscientious beliefs; and (c) broadly defines ‘body established for religious purposes’ to include a range of new organisations which would not currently fall within this category.

  • Religious bodies: Under existing anti-discrimination laws, bodies established for religious purposes can already refuse to provide facilities, goods and services to LGBTI people in line with their religious organisation’s doctrine or their congregation’s needs.

    The Paterson Bill defines a “body established for religious purposes” more broadly to include any not-for-profit or charity which advances religious purposes. This includes where advancing religion is “an effectuation of, conducive to, or incidental or ancillary to, and in furtherance or in aid of” the organisation’s charitable purpose. These multiple broad terms suggest that even a tangential relationship between the organisation’s work and advancing religion is sufficient to make it a ‘body established for religious purposes’ under the Sex Discrimination Act.

    For example, currently a faith-run hospital may not be permitted to discriminate against an intersex person seeking emergency medical care because their primary purpose is to provide medical care, but this may be allowed under the Paterson Bill. Similarly, a taxpayer funded support service which promotes religion as an incidental part of its work may be permitted to refuse to find emergency housing for a transgender woman fleeing family violence. This would also apply to other taxpayer funded organisations including child care, schools, universities or other service providers.
     
  • Commercial businesses or any individuals could refuse to provide facilities, goods, services, accommodation, an advantage or privilege or to register a marriage on religious or conscientious grounds under the Paterson Bill. This only applies in relation to preparing for, solemnising or celebrating a marriage that is not between a man and a woman.

    This would not apply in relation to other religious beliefs (e.g. weddings of a straight couple who had sex out of wedlock or a wedding involving a person who was previously divorced).

    For example, a baker could refuse to bake a wedding cake, an Uber driver could refuse to drive a same-sex couple to their wedding or a bank teller could refuse a bank loan for a same-sex couple’s wedding or possibly even their honeymoon.

    As another example, an employee at a florist could refuse to sell flowers for a same-sex wedding and the owner could not take any action against their employee if they wanted their small business to serve all customers equally and without discrimination.

5. Special exemptions for ‘traditional’ beliefs about marriage

The Paterson Bill also introduces additional exemptions for people who hold one of the following beliefs:

Relevant marriage belief

(a)   Same-sex marriage is not consistent with religious beliefs or their conscience.

(b)   The family structure of a married man and a woman with their children is a fundamental building block of human society, and this family structure has significant advantages for the nurture and raising of children.

(c)   Sexual relations should only occur within a marriage, understood as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

(d)   The gender difference and complementarity of men and women is an inherent and fundamental feature of human society and is reflected in the gender difference and complementarity of a man and a woman in marriage.

(e)   A fundamental feature of a marriage between a man and a woman is the modelling for children born from, or raised in, that marriage of the gender difference and complementarity of the man and the woman.

Relevant belief

(a)   Same-sex marriage is not consistent with religious beliefs or their conscience.

(b)   The normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth.

Overriding other federal, state and territory discrimination and hate speech laws The Paterson Bill also introduces new privileges for people with traditional beliefs about marriage, including allowing a person immunity from discrimination, vilification or criminal sanctions if the person engaged in the conduct because of their relevant marriage belief (see above) unless the conduct is reasonably likely to threaten or harass a LGBTI person.

In this way, the Bill:

  • provides immunity from existing state and territory discrimination protections (such as hate speech,  and vilification including incitement to violence),
  • provides immunity from existing protections from discrimination under the Fair Work Act in employment, and
  • provides immunity from certain criminal offences which provide protections against  serious vilification and offensive conduct

The Paterson Bill allows a No voter to discriminate against, offend, humiliate, intimidate, insult and ridicule a person who voted Yes because the Yes voter holds a different view. It does not allow a marriage equality supporter to lawfully treat an opponent of marriage equality the same way.

For example, a police officer could issue an offensive behaviour fine to a Yes voter for voicing their beliefs in an offensive way on a train but not to a No voter who was just as offensive in expressing their traditional views on marriage, family or gender.

However, it’s important to note that the Paterson Bill still allows for the operation of the protections against discrimination for LGBTI people in the Sex Discrimination Act. This means that the expression of a traditional belief on marriage, family or gender can still be unlawful if it breaches the protections the Sex Discrimination Act provides in employment, provision of goods and services, education and clubs. The Paterson Bill only overrides the Sex Discrimination Act in relation to goods or services related to same-sex marriages (as outlined above).

6. Anti-detriment clause from government action

The Paterson Bill also introduces a special immunity for a person or organisation which holds or expresses a traditional view on marriage, family or gender (see above). This means that the person or organisation can not be directly or indirectly subjected to — or proposed to be subjected to — any detriment, disadvantage, obligation, sanction, or the denial of any benefit by a public authority in the following areas:

  • employment, contracting or volunteering;
  • education, academic, trade or professional qualifications, accreditation or licensing;
  • accommodation;
  • economic benefits (grants, funding or subsidies);
  • goods, services or facilities (including assessing or selection of a person to be a supplier or acquirer of goods, services or facilities); and
  • the administration or enforcement of any laws and programs.

The Bill allows individuals and organisations who suffer detriment to bring legal action and claims for damages.

The Paterson Bill prohibits unfavourable conduct against No voters who believe that marriage is the union of a man and a woman but does not equally protect Yes voters who believe all loving couples should be allowed to marry. For example it stops a public authority employer from disciplining an employee for expressing a view against marriage equality, but allows an employer to discipline an employee for expressing a view in support of marriage equality.

To give another example, if a psychologist at a public school believed that gender is binary and fixed and repeatedly told this to a transgender student which caused the student’s mental health to decline, the school could not discipline or suspend the psychologist to undergo training for holding this traditional belief about gender.

7. Preservation of funding

The Paterson Bill also makes it unlawful for any government entity to decline to provide funding or impose a condition on funding because of a person or organisation’s traditional belief about marriage, family or gender or because the person or organisation acts or refuses to act consistent with that belief. There are also provisions that will allow a religious charity to retain its charitable status regardless of anything a religious charity says or does anything based on a traditional marriage belief.

For example, if a taxpayer funded public health service believed in abstinence outside of marriage and refused to provide sex education, contraception or family planning information, the Department of Health could not decrease or withdraw their funding, even in cases of non-compliance with the funding agreement (even if the funding agreement was for the provision of sexual and reproductive health services and education). As another example, if a taxpayer funded childcare centre refused to care for children of single or unmarried parents on the basis that the family structure of a married man and a woman is a fundamental building block of society, the local council could not reallocate their funding to an inclusive childcare centre which would care for all children regardless of their parents’ marital status. These organisations would also retain their charitable status to receive tax deductible donations under the Paterson Bill.

8. Changes to education in schools

The Paterson Bill includes a provision for parents to remove their children from classes that teach students material not consistent with their traditional beliefs.

Schools must:

  • notify a parent, guardian or student who holds a traditional belief in writing at least one week in advance that the classes will contain material that is likely to be objectionable to that person,
  • notify that person of the ‘right’ to be released from the classes, and
  • ensure the material is taught in a single class or as few classes as possible.

This is not currently required for the teaching of any other content in schools under federal law.

The Paterson Bill allows a person who believes in abstinence before marriage to remove their child from a class that teaches sex education, but does not allow a person who believes that marriage is not only the union of a man and a woman to take their child out of a class that teaches this.

Where can I find more information?

A fact sheet on the Consensus Bill is available here and our media release on the Paterson Bill is available here.


Frequently asked questions

Will the Bills allow for marriage equality?

Yes. Both Bills allow for any adult couple to marry, regardless of their sex. This means that all LGBTI (gay, lesbian, bisexual, transgender and intersex) people will be able to marry in Australia. Same-sex couples who have married overseas will now have their marriages recognised in Australia.

Will ministers of religion be allowed to refuse same-sex marriage ceremonies?

Yes. Currently, ministers of religion aren’t bound to perform any marriage provided they comply with anti-discrimination laws. That will continue to be the case under both bills, but the Paterson Bill allows ministers of religion to also refuse to perform a wedding on the basis of conscientious belief.

Will religious organisations be allowed to refuse to provide facilities, goods or services for same-sex weddings? 

Yes. Under the Consensus Bill, religious organisations can refuse to provide facilities, good, or services for same-sex weddings, an exemption that already exists under current anti-discrimination laws. Religious organisations will be able to discriminate on the basis of marital status, and relationship status if this conforms with the beliefs of the religion or the congregation.

Under the Paterson Bill, this immunity would be extended to individuals, actions based on conscientious belief and non-religious individuals, businesses and organisations.

Will church halls be forced to hold same-sex marriage ceremonies?

No. Existing anti-discrimination laws will continue to apply. Both the Consensus Bill and the Paterson Bill would allow a mosque, synagogue, temple or church hall used by a congregation for important religious rites, to refuse hosting a same-sex wedding.

Will the Bill allow religious exemptions for commercial businesses?

 Under the Consensus Bill: No. Commercial businesses and other non-religious organisations must continue to uphold current anti-discrimination laws and cannot unlawfully discriminate against couples, including same-sex couples.

Under the Paterson Bill: Yes. Commercial businesses and individuals can refuse to provide facilities, goods, services and accommodation related to a same-sex wedding (including preparing for or celebrating the marriage).

Can civil celebrants refuse to perform same-sex marriage ceremonies?

Under the Consensus Bill: No. All civil celebrants must uphold anti-discrimination laws and cannot discriminate against couples, including same-sex couples. Existing civil celebrants who wish to conduct marriages in accordance with religious beliefs can elect to be registered as religious marriage celebrants up until 90 days after the legislation comes into effect.  

Under the Paterson Bill: Yes. Civil celebrants can refuse to perform same-sex weddings.

What is a ‘religious marriage celebrant’ in the Consensus Bill?

Currently, the Marriage Act recognises ministers of religion from large established religions but requires ministers of religion from small independent and emerging churches to register in a very similar way to civil celebrants.

To distinguish from civil celebrants, the Consensus Bill creates a new category of ‘religious marriage celebrants’ for ministers of religion from small and emerging religions that are not recognised under the Marriage Act.

Marriage celebrants who are already registered and whose religious beliefs would not allow them to solemnise a same-sex marriage will have 90 days to apply to be registered as a religious marriage celebrant. Civil celebrant associations estimate that up to 3% of all current marriage celebrants would prefer to be registered as a religious marriage celebrant. The new category will only be available to existing civil celebrants. All future civil celebrants will be required to uphold civil law and not discriminate against LGBTI people or others.

The new category of religious marriage celebrants would be able to refuse to perform a wedding where their religious beliefs would not allow them to do so. The ministers of religion (from non-recognised denominations) who are currently marrying couples as civil celebrants can already discriminate under the current law and this will not change under the Consensus Bill when they become religious marriage celebrants. 

What is a ‘traditional marriage celebrant’ in the Paterson Bill?

 A traditional marriage celebrant is a marriage celebrant or registry officer whose religious or conscientious beliefs against same-sex marriage would not allow them to perform a same-sex wedding.

The new category of traditional marriage celebrants could refuse to perform a wedding where their religious or conscientious beliefs would not allow them to do so.

Can religious marriage celebrants refuse to perform same-sex marriage ceremonies?

Yes. The new categories of religious marriage celebrants can refuse to perform a ceremony where their religious beliefs would not allow them to do so.

Will religious sacraments be impacted by the bills?

No. Religious rites and practices are not affected by either bill.

Do the bills remove the ability of ministers of religion to practice their religious beliefs? Will churches be forced to marry same-sex couples?

No. Both bills allow for ministers of religion and churches to continue to freely practice their religion and express their religious beliefs about marriage.

Do the bills end ‘forced trans divorce’?

No. Even though the definition of marriage will be changed, there are provisions in the Sex Discrimination Act that exempt state and territory laws that allow for forced trans divorce. Most state and territory birth certificate laws require which allow the requirement that a person be unmarried to change the sex on their birth certificates.

What does ‘religious freedom’ mean under international law?

There is a right to freedom of religion under international human rights law. Article 18 of the International Civil and Political Rights (ICCPR) states that all human beings have the right to hold a religious belief. When it comes to the expression or manifestation of a religious belief, the ICCPR says that this must be balanced against the right to freedom from discrimination and other rights.

Every other Western liberal democracy in the world has a Human Rights Act or other legal framework for protecting human rights that balances these competing human rights – except for Australia. Instead, Australia has five federal anti-discrimination laws which provide some protection from discrimination on the grounds of race, age, disability, sex and related attributes. There is no federal anti-discrimination law which provides protections from discrimination on the basis of religion. Instead, there are permanent religious exemptions across a range of categories under anti-discrimination laws.

For example, section 38 of the Sex Discrimination Act already allows religious schools to teach students about marriage in accordance with their religious beliefs. It also allows religious schools to discipline, suspend or expel a student because they are lesbian, gay, bisexual or transgender.

The right to freedom of religion protects a broad range of practices – including a person’s right to wear religious dress, pray, worship, congregate and share and teach their religious beliefs. ‘Religious freedom’ does not allow people to use their religious belief to justify immunity from discrimination protections, or to treat a person less favourably because of their sexual orientation, gender identity or intersex status.

 Is Australian law compliant with international human rights law?

No. The UN Human Rights Committee has told Australia to replace its patchwork anti-discrimination laws with a Human Rights Act for all human rights to be protected. However, this is likely to take time to debate and should not stand in the way of marriage equality for LGBTI Australians this year.

In November 2017, the UN Human Rights Committee called on Australia to revise the Marriage Act, to ensure LGBTI people, couples and families are afforded equal protection under our laws and policies — irrespective of the result of the postal survey.

(Photo credit: Roman Clarke)