The Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) is an act of the Parliament of Australia, which legalises same-sex marriage in Australia by amending the Marriage Act 1961 to allow marriage between two persons of marriageable age, regardless of their gender.
Introduced as a private member's bill by Western Australian senator Dean Smith of the Liberal Party following the Australian Marriage Law Postal Survey, the bill passed the Parliament on 7 December 2017. It received royal assent on the following day and came into effect on 9 December 2017.
Same-sex marriage legislation had been presented to the Parliament of Australia on 22 occasions between September 2004 and May 2017, though on each occasion the legislation failed to pass either the House of Representatives or the Senate. These attempts followed the Howard government's 2004 amendment to the Marriage Act 1961 which explicitly defined marriage as a union between only a man and a woman and banned the recognition of same-sex marriages conducted lawfully in foreign jurisdictions. Prior to the legalisation of same-sex marriage, same-sex relationships could only be treated as de facto unions under federal law. These unions provide couples with most, though not all, of the legal rights of marriage, although those rights may be difficult to assert and are not always recognised in practice.
The Malcolm Turnbull-led Liberal/National government went to the July 2016 federal election promising to put the issue of same-sex marriage to a national vote, in the form of a plebiscite. Despite narrowly winning the election, the government could not pass the legislation to establish the plebiscite in the Senate and so eventually decided to conduct a voluntary postal survey of all Australians on the electoral roll. Prime Minister Malcolm Turnbull pledged the government would facilitate the passage of a private member's bill in the event of a "Yes" result in favour of same-sex marriage, which occurred when the results of the survey were announced by the Australian Bureau of Statistics on 15 November 2017.
On the day the postal results were released, Liberal Party Senator Dean Smith, an openly gay backbencher in the government, introduced the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 into the Senate. Smith's bill had been publicly released earlier in August, during the midst of a divisive internal effort in the Liberal Party to change policy and vote on same-sex marriage legislation without conducting a national vote.
The bill itself was the result of a cross-party effort following the reporting of a Senate committee in February 2017 which investigated how a same-sex marriage law with religious freedoms incorporated in it might operate.
Several months later, Smith published a draft of the bill which would later be the one to be introduced to the Parliament in November. The bill was formally introduced into the Parliament and read for a first time on 15 November 2017. Chief among the bill's reforms is the amendment of the definition of the word "marriage" in the Marriage Act, replacing "a man and a woman" with "a union of 2 people", as well as the repeal of Section 88EA of the Act, which bans the recognition of same-sex marriages lawfully entered into in foreign jurisdictions. This means that same-sex couples who married in foreign jurisdictions automatically have their marriages recognised in Australia. In accordance with the recommendation of the Senate committee report, the bill creates a new category of marriage celebrants in Australia, the "religious marriage celebrant", who is protected from being required to solemnise any marriage. Additionally, religious bodies and organisations established for a religious purpose are exempt from being required to provide facilities or goods or services for a marriage ceremony that conflicts with their faith.
The terminology in the bill, specifically the wording "2 people" with respect to the definition of "marriage", alleviates the concerns of several transgender and intersex rights organisations. These groups had expressed concern in the past that a same-sex marriage bill might not include this terminology, but rather only mention "same-sex" marriage, potentially prolonging the inability of some intersex and transgender people to marry. This had been a concern expressed when the Australian Capital Territory drafted a same-sex marriage law in 2013. The bill addresses these concerns by defining marriage in Australia in gender neutral terms; "the union of 2 people".
Though introduced by Smith, the bill was co-sponsored by eight other senators; Linda Reynolds (Liberal), Penny Wong (Labor), Louise Pratt (Labor), Richard Di Natale (Greens), Janet Rice (Greens), Skye Kakoschke-Moore (Nick Xenophon Team), Derryn Hinch (Justice Party) and Jane Hume (Liberal).
There was some unresolved disagreement by politicians who advocated for a "No" result in the postal survey as to whether further religious protections should be added to the Smith bill as an amendment at this time or whether a later bill for this purpose should be considered. In the Senate, several politicians sought to incorporate amendments designed to further religious, conscientious and other protections, in areas relating to marriages, classrooms and organisations. All such amendments were rejected by the Senate. Similar amendments were sought by government MPs Andrew Hastie and Michael Sukkar in the House of Representatives, such as including two definitions of marriage (both man-woman marriage and two-person marriage) and expanding exemptions from anti-discrimination laws for religious organisations and conscientious objectors. All such amendments were also similarly rejected by the House of Representatives.
Sets out objectives of the bill.
Amends the definition of "authorised celebrant" to include a minister of a registered religion, a person authorised to solemnise marriages, a marriage celebrant, religious marriage celebrant, and chaplain or officer other than a chaplain authorised by the Chief of the Defence Force to solemnise marriages.
Omits the phrase "a man and a woman" from the definition of "marriage" and substitutes "2 people". Also makes an identical change with respect to the requirement of a celebrant to state the nature of a lawful marriage in Australia.
Makes revisions to the laws relating to establishment of religious marriage celebrants and their rights and obligations and makes general provisions relating to all marriage celebrants.
Establishes that ministers of religion, religious marriage celebrants and bodies established for religious purposes may refuse to make facilities available or provide goods or services for a marriage ceremony.
Repeals section of the Act (88EA) which banned the recognition of same-sex marriages lawfully solemnised in foreign jurisdictions.
Amends the Sex Discrimination Act 1984 to establish that a minister of religion, religious marriage celebrant and chaplain may refuse to solemnise a marriage irrespective of other provisions in the Act.
Makes minor, technical amendments to the Marriage Act which go into effect only if Schedule 9 to the Civil Law and Justice Legislation Amendment Act 2017 is not yet in effect by the date of this bill's commencement.