Senate debates

Tuesday, 28 November 2017

Bills

Marriage Amendment (Definition and Religious Freedoms) Bill 2017; In Committee

7:21 pm

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | Hansard source

by leave—I move amendments (1) to (13) on sheet 8328 together:

(1) Clause 1, page 1 (lines 6 and 7), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment (Definition and Protection of Freedoms) Act 2017".

[short title]

(2) Schedule 1, item 2, page 5 (lines 1 to 4), omit subparagraph (b) (ii) of the definition of authorised celebrant, substitute:

  (ii) an authorised officer.

[consequential—authorised officers]

(3) Schedule 1, page 5 (after line 4), after item 2, insert:

2A Subsection 5(1)

Insert:

authorised officer means an officer (within the meaning of the Defence Act 1903), other than a chaplain, authorised by the Chief of the Defence Force under section 71A to solemnise marriages under Division 3 of Part V.

[definition of authorised officer]

(4) Schedule 1, item 4, page 5 (lines 9 to 12), omit all the words from and including "officer", substitute "authorised officer".

[definition of prescribed authority]

(5) 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 a chaplain or an authorised officer 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 chaplain or authorised officer; and

  (b) in determining whether the other person is a man or a woman, if the chaplain or authorised officer 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 chaplain or authorised officer may disregard the current legal status of the other person's sex or gender, or their gender identity or intersex status.

[determining when a belief is held]

(6) Schedule 1, item 6, page 5 (lines 18 and 19), omit the item, substitute:

6 Paragraph 21(2 ) ( b)

After "the chaplain", insert "or authorised officer".

[consequential—authorised officers]

(7) Schedule 1, item 22, page 12 (lines 12 and 13), omit the item, substitute:

22 Subsection 71(1)

After "a chaplain", insert "or an authorised officer".

[consequential—authorised officers]

(8) Schedule 1, item 23, page 12 (line 16), omit the heading to section 71A, substitute:

71A Officers authorised to solemnise marriages

[consequential—authorised officers]

(9) Schedule 1, items 24 and 25, page 5 (lines 20 to 25), omit the items, substitute:

24 Paragraphs 72(1 ) ( a) and (b)

After "the chaplain" (wherever occurring), insert "or authorised officer".

25 Subsection 72(2)

After "the chaplain" (wherever occurring), insert "or authorised officer".

[consequential—authorised officers]

(10) Schedule 1, items 27 to 56, page 12 (line 28) to page 15 (line 22), omit the items, substitute:

27 Section 74 (heading)

After "chaplain", insert "orauthorised officer".

28 Subsection 74(1)

After "the chaplain", insert "or authorised officer".

29 Subsection 74(3)

After "chaplain", insert "or authorised officer".

30 Section 75 (heading)

After "Chaplain", insert "or authorised officer".

31 Section 75

After "A chaplain", insert "or authorised officer".

32 Section 75

After "the chaplain", insert "or authorised officer".

33 Subsections 76(1), 77(1) and 78(2)

After "chaplain", insert "or authorised officer".

34 Section 79 (heading)

After "Chaplain", insert "or authorised officer".

35 Section 79

After "A chaplain", insert "or authorised officer".

36 Section 79

After "the chaplain", insert "or authorised officer".

37 Subsection 80(1)

After "a chaplain", insert "or authorised officer".

38 Subsection 80(1)

After "the chaplain", insert "or authorised officer".

39 Paragraphs 80(2 ) ( a) and (c)

After "the chaplain", insert "or authorised officer".

40 Subsection 80(4)

After "The chaplain", insert "or authorised officer".

41 Subsections 80(5) and (6)

After "the chaplain", insert "or authorised officer".

42 Subsection 80(8)

After "a chaplain", insert "or authorised officer".

43 Subsection 80(9)

After "the chaplain" (first occurring), insert "or authorised officer".

44 Paragraph 80(9 ) ( b)

After "the chaplain", insert "or authorised officer".

45 Subsection 80(10)

After "a chaplain", insert "or authorised officer".

46 Section 81 (heading)

Repeal the heading, substitute:

81 Power to refuse to solemnise marriage

Chaplain or authorised officer may refuse to solemnise marriage on any grounds

47 Section 81

Omit "A chaplain", insert "(1) A chaplain or authorised officer".

48 Section 81

After "the chaplain" (wherever occurring), insert "or authorised officer".

49 At the end of section 81

Add:

Chaplain may refuse to solemnise marriage on the basis of religious or conscientious beliefs etc.

  (2) To avoid doubt, a chaplain 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 chaplain's religious body or religious organisation;

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

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

Authorised officer may refuse to solemnise marriage on the basis of genuine religious or conscientious belief

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

  (a) the officer 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 officer of that belief does not allow the officer to solemnise the marriage.

Grounds for refusal not limited by this section

  (4) Subsections (2) and (3) do not limit the grounds on which a chaplain or an authorised officer may refuse to solemnise a marriage.

50 Subsection 83(2)

After "a chaplain", insert "or authorised officer".

51 Section 84 (heading)

After "a chaplain", insert "or authorised officer".

52 Paragraph 84(1 ) ( a)

After "a chaplain", insert "or authorised officer".

53 Paragraphs 84(1 ) ( b) and (c)

After "the chaplain", insert "or authorised officer".

54 Subsection 84(1)

After "the chaplain" (last occurring), insert "or authorised officer".

55 Paragraph 85(1 ) ( b)

After "a chaplain", insert "or authorised officer".

56 Paragraph 85(1 ) ( c)

After "the chaplain", insert "or authorised officer".

56A Subsection 85(1)

After "the chaplain" (last occurring), insert "or authorised officer".

[authorisation of officers / chaplains and authorised officers may refuse to solemnise marriages / authorised officers]

(11) Schedule 1, items 59 and 60, page 16 (lines 1 to 4), omit the items, substitute:

59 Subsection 99(3)

After "A chaplain", insert "or authorised officer".

60 Subsection 116(2)

Omit "celebrant or chaplain" (wherever occurring), substitute "celebrant, chaplain or authorised officer".

[authorised officers]

(12) Schedule 1, item 62, page 16 (lines 7 and 8), omit the item, substitute:

69 Paragraph 119(3 ) ( f)

After "chaplain", insert "or authorised officer".

[authorised officers]

(13) Schedule 1, item 63, page 17 (after line 24), after subsection 40(2AB), insert:

(2AC) An authorised officer in the Defence Force may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if the circumstances mentioned in subsection 81(3) of the Marriage Act 1961 apply.

[Sex Discrimination Act 1984]

The amendments here are relatively straightforward and, I would hope, uncontroversial. During the Senate select committee the issue of chaplains in the Defence Force, who have traditionally conducted marriages for servicemen overseas, came up. Whilst the initial discussion went to the fact that they are employees of the government and therefore should just carry out the law according to the civil definition of marriage, what became clear during evidence presented to the Senate select committee was that they are in fact appointed to that role by their respective denominations and therefore should and in fact do enjoy the same exemptions that apply to a minister of religion. That was accepted by the Senate report and indeed accepted by Senator Smith in his bill.

The workaround that the committee decided on was that the Chief of the Defence Force, if he had a force deployed overseas, should be able to appoint an officer to conduct weddings if there was a member of the Defence Force overseas who was going to get married. The purpose of this amendment is purely to recognise that, just as the Defence Force when it appoints somebody makes sure they have the relevant competence to do the task, the individual officer has the same human right under article 18 to their freedom of religion and belief. Therefore, the practical effect of this amendment would be that, before the CDF made that appointment, they would ask the officer concerned if they were happy to conduct same-sex weddings. If they were, the appointment would go ahead. If they weren't, because they do have that individual right to freedom of religion and belief, the CDF would make the appointment of another officer who was happy to do that.

As the bill currently stands, the CDF can make that appointment without taking regard of the individual's conscientious objection. Bear in mind that, unlike someone who works in a registry office, where this is the purpose they were employed for, in this case the officer of the Defence Force is employed in either the Air Force, the Navy or the Army for the primary purpose of conducting military operations, and this is a secondary duty. So the operational effect of this amendment would be that the Defence chief would need to check that the officer they wanted to appoint was happy to conduct same-sex marriage, and in that case that person would be appointed.

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