Set out below are certain proposed clauses in the same-sex marriage amendments to the Commonwealth Marriage Act 1961, as previously amended by the Howard Coalition Government in 2004.
As can plainly be seen this bill does not seek to establish full marriage equality, in that it allows widespread discrimination against lesbian, gay, bisexual, and transgender citizens seeking to legally marry in this country.
Should this bill eventually be submitted to the Australian Parliament, the Turnbull Coalition Government proposes the establishment of a Joint Select Committee to review and report on the Exposure Draft.
Excerpt from the Marriage Amendment (Same-Sex Marriage) Bill 201X (Exposure Draft) released by Attorney-General George Brandis on 10 October 2016:
"47 Ministers of religion may refuse to solemnise marriages
Refusing to solemnise a marriage despite this Part
(1) A minister of religion may refuse to solemnise a marriage despite anything in this Part.
(2) In particular, nothing in this Part prevents a minister of religion from:
(a) making it a condition of solemnising a marriage that:
(i) notice of the intended marriage is given to the minister earlier than this Act requires; or
(ii) additional requirements to those provided by this Act are complied with; and
(b) refusing to solemnise the marriage if the condition is not observed.
Refusing to solemnise a marriage that is not the union of a man and a woman
(3) A minister of religion may refuse to solemnise a marriage despite any law (including this Part) if:
(a) the refusal is because the marriage is not the union of a man and a woman; and
(b) any of the following applies:
(i) the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister’s religious body or religious organisation;
(ii) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;
(iii) the minister’s conscientious or religious beliefs do not allow the minister to solemnise the marriage.
Grounds for refusal not limited by this section
(4) This section does not limit the grounds on which a minister of 16 religion may refuse to solemnise a marriage.
6 Before section 48
Insert:
47A Marriage celebrants may refuse to solemnise marriages
(1) A marriage celebrant (not being a minister of religion) may refuse to solemnise a marriage despite any law (including this Part) if:
(a) the refusal is because the marriage is not the union of a man and a woman; and
(b) the marriage celebrant’s conscientious or religious beliefs do not allow the marriage celebrant to solemnise the marriage.
Grounds for refusal not limited by this section
(2) This section does not limit the grounds on which a marriage celebrant (not being a minister of religion) may refuse to solemnise a marriage.
47B Religious bodies and organisations may refuse to make facilities available or provide goods or services
(1) A religious body or a religious organisation may, despite any law (including this Part), refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if:
(a) the refusal is because the marriage is not the union of a man and a woman; and
(b) the refusal:
(i) conforms to the doctrines, tenets or beliefs of the religion of the religious body or religious organisation; or
(ii) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
(2) Subsection (1) applies to facilities made available, and goods and services provided, whether for payment or not.
(3) This section does not limit the grounds on which a religious body or a religious organisation may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage."
It is noted that under this bill it appears as though discrimination may be practiced against lesbian, gay, bisexual, and transgender citizens seeking to legally marry, as a matter of conscience alone. Therefore a minister of religion whose own peak religious governing body accepts same-sex marriage may still practice discrimination himself/herself and, a civil marriage celebrant does not have to hold religious beliefs in order to discriminate.
This appears to run counter to international human rights law which does not support discrimination based on a general exemption for conscience. As an example see Article 18 Clause 3 of the International Covenant on Civil and Political Rights ratified by Australia on 13 August 1980.
It should be further noted that neither the amendment bill nor the Marriage Act itself appear to contain a legal definition of the term "religious organisation".
For the purposes of any newly amended marriage act, is a religious organisation a not-for-profit institution for the advancement and promotion of religious purposes, such as churches, convents, faith-based schools or bible colleges, or is it capable of a broader definition?
Will any bigot or homophobe be able to prominently display a religious icon in their place of business and thereby gain a right to deny goods and services to same-sex couples seeking to organise a wedding?
It is noted that under this bill it appears as though discrimination may be practiced against lesbian, gay, bisexual, and transgender citizens seeking to legally marry, as a matter of conscience alone. Therefore a minister of religion whose own peak religious governing body accepts same-sex marriage may still practice discrimination himself/herself and, a civil marriage celebrant does not have to hold religious beliefs in order to discriminate.
This appears to run counter to international human rights law which does not support discrimination based on a general exemption for conscience. As an example see Article 18 Clause 3 of the International Covenant on Civil and Political Rights ratified by Australia on 13 August 1980.
It should be further noted that neither the amendment bill nor the Marriage Act itself appear to contain a legal definition of the term "religious organisation".
For the purposes of any newly amended marriage act, is a religious organisation a not-for-profit institution for the advancement and promotion of religious purposes, such as churches, convents, faith-based schools or bible colleges, or is it capable of a broader definition?
Will any bigot or homophobe be able to prominently display a religious icon in their place of business and thereby gain a right to deny goods and services to same-sex couples seeking to organise a wedding?
The road to parliamentary approval of the unfair Marriage Amendment (Same-Sex Marriage) Bill became a little more difficult to traverse yesterday......
ABC News, 11 October 2016:
A meeting at Parliament House this morning saw Labor MPs and senators vote unanimously to block the bill establishing the plebiscite.
"The experts have unequivocally explained to Labor that the plebiscite would cause harm to gay and lesbian people — particularly, but not exclusively, young people," Mr Shorten said.
"Having met these families, having listened to their stories, I could not in good conscience recommend to the Labor Party that we support the plebiscite about marriage equality.
"The Labor Party, therefore, will in Parliament oppose Malcolm Turnbull's expensive, divisive plebiscite."
The Greens and a number of balance-of-power Senate crossbenchers have also pledged to block the enabling legislation, meaning it will not pass Parliament.
The compulsory Australia-wide ballot on whether to allow same-sex couples to marry was set to happen in February next year.
The Opposition criticised the plebiscite for months and its decision today was widely expected.
Labor is expected to keep pressing for a free vote in Parliament on whether to legalise same-sex marriage.
But a number of senior Government ministers have made it clear that will not happen.
Note: The results of the proposed precuser national plebiscite will be non-binding on MPs and senators and a number of government members have stated that they will not vote for same-sex marriage under any circumstances.
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