House debates

Thursday, 7 December 2017

Bills

Marriage Amendment (Definition and Religious Freedoms) Bill 2017; Consideration in Detail

10:04 am

Photo of Michael SukkarMichael Sukkar (Deakin, Liberal Party, Assistant Minister to the Treasurer) Share this | Hansard source

by leave—I move amendments (1) to (44) as circulated in my name together:

(1) Clause 1, page 1 (lines 14 and 15), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment (Definition and Protection of Freedoms) Act 2017".

(2) Schedule 1, item 1, page 4 (lines 8 to 10), omit paragraph 2A(a), substitute:

(a) to allow civil celebrants (including traditional marriage celebrants) to solemnise marriage, understood as:

  (i) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or

  (ii) the union of 2 people to the exclusion of all others, voluntarily entered into for life; and

(3) Schedule 1, item 1, page 4 (line 11), after "religion", insert "or traditional marriage celebrants".

(4) Schedule 1, item 1, page 4 (line 13), after "own religious", insert "or conscientious".

(5) Schedule 1, item 1, page 4 (line 15), after "religious", insert "and conscientious".

(6) Schedule 1, item 2, page 4 (line 27), omit "religious", substitute "traditional".

(7) Schedule 1, item 3, page 5 (lines 5 and 6), omit the item, substitute:

3 Subsection 5(1) (definition of marriage )

Repeal the definition, substitute:

marriage means:

(a) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or

(b) the union of 2 people to the exclusion of all others, voluntarily entered into for life.

(8) Schedule 1, item 5, page 5 (lines 13 to 17), omit the item, substitute:

5 Subsection 5(1)

Insert:

traditional marriage celebrant means a person identified as a traditional marriage celebrant on the register of marriage celebrants under Subdivision D of Division 1 of Part IV.

(9) Schedule 1, page 5 (after line 17), after item 5, insert:

5A After section 5

Insert:

5AD Determining when a belief is held etc.

(1) For the purposes of this Act, a person holds a genuine religious or conscientious belief, or genuinely believes, if the holding of the belief (inclusive of the person's or entities beliefs as to the actions, refusals, omissions or expressions that are consistent with that belief)is not fictitious, capricious or an artifice.

(3) For the purposes of this Act, if an authorised celebrant holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, then in holding, expressing or acting on that belief:

(a) whether or not another person who is to be married is a man or a woman is to be determined by the authorised celebrant; and

(b) in determining whether the other person is a man or a woman, if the authorised celebrant reasonably believes and genuinely believes that the current legal status of the other person as a man or a woman is different from the legal status of the other person as a man or a woman at the time of the other person's registration following the other person's birth, the authorised celebrant may disregard the current legal status of the other person's sex or gender, or their gender identity or intersex status.

(10) Schedule 1, item 8, page 5 (line 24), omit "Religious", substitute "Traditional".

(11) Schedule 1, item 8, page 5 (line 25), omit "religious", substitute "traditional".

(12) Schedule 1, item 8, page 5 (line 27), omit "religious", substitute "traditional".

(13) Schedule 1, item 8, page 6 (line 1), omit paragraph (b), substitute:

(b) either:

  (i) the person is a minister of religion; or

  (ii) the person holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

(14) Schedule 1, item 8, page 6 (line 2), omit "religious", substitute "traditional".

(15) Schedule 1, item 8, page 6 (line 6), omit "religious", substitute "traditional".

(16) Schedule 1, item 8, page 6 (line 9), omit "religious", substitute "traditional".

(17) Schedule 1, item 8, page 6 (line 11), omit "religious", substitute "traditional".

(18) Schedule 1, item 8, page 6 (line 15), omit "religious", substitute "traditional".

(19) Schedule 1, item 8, page 6 (line 16), omit "religious", substitute "traditional".

(20) Schedule 1, item 8, page 6 (line 18) to page 7 (line 17), omit section 39DD.

(21) Schedule 1, item 8, page 7 (line 18), omit "religious", substitute "traditional".

(22) Schedule 1, item 8, page 7 (line 20), omit "religious", substitute "traditional".

(23) Schedule 1, item 8, page 7 (line 23), omit "religious", substitute "traditional".

(24) Schedule 1, item 8, page 7 (lines 26 to 33), omit subsection 39DE(3).

(25) Schedule 1, item 8, page 7 (after line 33), after section 39DE, insert:

39DF Request for identification as a traditional marriage celebrant to be removed

(1) A traditional marriage celebrant may, in writing, give the Registrar of Marriage Celebrants notice that the celebrant no longer wishes to be identified as a traditional marriage celebrant on the register of marriage celebrants.

(2) If a traditional marriage celebrant gives the Registrar of Marriage Celebrants notice in accordance with subsection (1), the Registrar must remove the identification of the celebrant as a traditional marriage celebrant from the register.

(26) Schedule 1, items 9 to 16, page 8 (line 3) to page 9 (line 34), omit the items.

(27) Schedule 1, item 17, page 10 (line 3), omit "religious", substitute "traditional".

(28) Schedule 1, item 17, page 10 (line 5), omit "religious", substitute "traditional".

(29) Schedule 1, page 10 (after line 6), after item 17, insert:

17B Before subsection 45(1)

Insert:

Ministers of religion

17C Before subsection 45(2)

Insert:

Traditional marriage celebrants

(30) Schedule 1, item 18, page 10 (lines 7 and 8), omit the item, substitute:

18 Subsection 45(2)

Omit "not being a minister of religion", insert "being a traditional marriage celebrant (other than a minister of religion)".

18A After subsection 45(2)

Insert:

Other authorised celebrants

(2A) Where a marriage is solemnised by or in the presence of an authorised celebrant, not being a minister of religion or a traditional marriage celebrant, it is sufficient if each of the parties says to the other, in the presence of the authorised celebrant and the witnesses, the words:

"I call upon the persons here present to witness that I, A.B. (or C.D.), take thee, C.D. (or A.B.), to be my lawful wedded wife (or husband or spouse)";

or words to that effect.

Certificates of marriage

(31) Schedule 1, item 19, page 10 (lines 9 and 10), omit the item, substitute:

19 Before subsection 46(1)

Insert:

Traditional marriage celebrants

19A Subsection 46(1)

After "denomination", insert "but being a traditional marriage celebrant".

19B After subsection 46(1)

Insert:

Authorised celebrants (other than ministers of religion or traditional marriage celebrants)

(1A) Subject to subsection (2), before a marriage is solemnised by or in the presence of an authorised celebrant, not being a minister of religion of a recognised denomination or a traditional marriage celebrant, the authorised celebrant shall say to the parties, in the presence of the witnesses, the words:

"I am duly authorised by law to solemnise marriages according to law.

"Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.

"Marriage, according to law in Australia, is the union of 2 people to the exclusion of all others, voluntarily entered into for life.";

or words to that effect.

State and Territory officers

19C Subsection 46(2)

After "subsection (1)", insert "or (1A)".

(32) Schedule 1, item 20, page 10 (line 26), after "religious", insert "or conscientious".

(33) Schedule 1, item 20, page 10 (line 28) to page 11 (line 7), omit subsection 47(3), substitute:

(3) To avoid doubt, a minister of religion may refuse to solemnise a marriage, despite anything in this Part or any law of a State or Territory,if any of the following applies:

(a) the refusal is consistent with the doctrines, tenets or beliefs of the religion of the minister's religious body or religious organisation;

(b) the refusal is made because of the religious susceptibilities of adherents of that religion;

(c) the minister's genuine religious or conscientious beliefs do not allow the minister to solemnise the marriage.

(34) Schedule 1, item 20, page 11 (line 9), omit "This section does not", substitute "Subsections (2) and (3) do not".

(35) Schedule 1, item 21, page 11 (line 13), omit "Religious", substitute "Traditional".

(36) Schedule 1, item 21, page 11 (lines 15 to 17), omit subsection 47A(1), substitute:

(1) This section applies to a traditional marriage celebrant who is not a minister of religion.

Note: For the refusal by a minister of religion to solemnise a marriage, see section 47.

(1A)Despite anything in this Part or any law of a State or Territory, the celebrant may refuse to solemnise a marriage that is not the union of a man and a woman if:

(a) the celebrant holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; and

(b) the holding by the celebrant of that belief does not allow the celebrant to solemnise the marriage.

(37) Schedule 1, item 21, page 11 (line 19), omit "religious", substitute "traditional".

(38) Schedule 1, item 21, page 11 (after line 30), after subsection 47B(1), insert:

Note: Examples include:

(a) the provision of services by relationship counsellors;

(b) hire of reception halls;

(c) catering for receptions;

(d) the provision of chapels, receptions halls, other like facilities or services by educational institutions to which section 38 of the Sex Discrimination Act 1984 applies.

(39) Schedule 1, item 57, page 15 (lines 23 and 24), omit the item.

(40) Schedule 1, item 63, page 17 (line 11), omit "religious", substitute "traditional".

(41) Schedule 1, item 63, page 17 (line 15), omit "religious", substitute "traditional".

(42) Schedule 1, item 63, page 17 (line 18), omit "(1)", substitute "(1A)".

(43) Schedule 1, item 64, page 18 (line 10), omit "religious", substitute "traditional".

(44) Schedule 1, item 66, page 19 (line 7), omit "religious", substitute "traditional".

The first contribution was not particularly consistent with the spirit of love today, but I will try and be a little more measured in my comments than the previous speakers. These amendments which I am moving essentially do two things: one is symbolic and deals with the definition of 'marriage', and the second is in relation to the religious and conscientious protections provided to celebrants. So one is quite symbolic in nature and one is very practical.

In relation to the first change that I'm proposing, the Marriage Amendment (Definition and Religious Freedoms) Bill 2017—the Smith bill, as I will call it today—redefines marriage to be the union of two people. We believe it unnecessarily distinguishes the definition held to be true by at least five million people. One thing I said in my speech on the second reading was that—to the extent that it's possible for us to simultaneously ensure that the overwhelming will of the Australian people is met by changing the Marriage Act to allow same-sex couples to marry while also respecting the views of a not-insignificant proportion of our country: 40 per cent of Australians or five million people—we should, to the greatest extent possible, seek to do so, because today, even for people such as I who voted no, should be a unifying moment for our country. It should be unifying for 100 per cent of those who voted in the postal survey, not just the 61 per cent who voted yes. So my proposal, as circulated in these amendments, is that we have a definition of marriage that includes 'the union of two people to the exclusion of all others, voluntarily entered into for life, or the union of a man and a woman to the exclusion of all others, voluntarily entered into for life'. Note that there are two categories there but one definition of marriage, one that appropriately recognises and fulfils our obligation to meet the will of the Australian people in allowing same-sex couples to marry but also ensures that a definition, a belief and an understanding of marriage that has been understood from time immemorial is also contained in that piece of legislation.

As I say, it's extraordinarily important today that we do, to the greatest extent possible, cater for 100 per cent of Australians. That's not going to be possible on every question. On the substantive question as to whether we change the act or not, of course the majority rules, and we must fulfil our obligations to the Australian people. But, where possible, we should be seeking in this House to represent all of our constituents, and that's what this symbolic change to the definition of marriage, in relation to the bill in front of us, does. It ensures that we absolutely fulfil the obligation under the postal survey, but it also recognises that, for those five million Australians who have had an understanding of or a belief—it might be a religious belief—about or a tradition as to marriage, that is also contained in that bill. Where they are not inconsistent, where one doesn't infringe on the other, I think we must do so, and I'd be asking the House to support that change.

The second change in the amendments that I've circulated, essentially, extends the religious and conscientious protections to celebrants. As supported by the February 2017 Senate select committee report on same-sex marriage—which I note was approved by Labor, NXT, Greens and coalition senators—celebrants who are not religious ministers should still be able to refuse to solemnise a marriage, consistent with their religious convictions. This bill does not implement that approach, other than as a transitional measure. I don't think anybody ever envisaged that a celebrant who had a conscientious view on marriage should be forced to conduct a ceremony if that was against their conscientious beliefs. That would also have the perverse impact of saying, 'You're entitled to choose not to solemnise a marriage for a religious belief, but you're not entitled if you have a conscientious belief against conducting that ceremony.' It might seem counterintuitive to many people listening to my contribution, but I don't think we should be saying that only those with religious objections should be entitled to do so. I'd say there are lots of people who would have objections for very secular reasons, which have nothing to do with religion, and they should not be forced to conduct ceremonies. The transitional measures that are currently contained in this bill are hopelessly inadequate in protecting those individuals.

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