Wednesday, 29 November 2017
Marriage Amendment (Definition and Religious Freedoms) Bill 2017; In Committee
I move amendment (1) on sheet 8321 revised:
(1) Schedule 1, page 5 (line 21), after item 7, insert:
7A At the end of section 39
(4) A person who is authorised by subsection (1) or under subsection (2) to solemnise marriages must not refuse to solemnise a marriage unless section 99 or 100 of this Act applies.
[State and Territory officers]
The Marriage Act 1961 authorises certain state and territory officers to solemnise marriages. This includes officers with the duty of registering marriages. The Marriage Act outlines numerous circumstances where these state and territory officers must not solemnise a marriage. They must not solemnise a marriage where insufficient notice of the marriage is given, there are insufficient witnesses to the marriage, the parents have not given consent for a 16- or 17-year-old to be married, an interpreter to help solemnise the marriage has not declared their competence as an interpreter or the parties are already married to each other, or the marriage would be void. Reasons why the marriage would be void include that one party is already married, one party is the descendant of another, the parties are siblings, the state or territory officer is not authorised to solemnise a marriage at the place where the marriage takes place, a party fails to say words to the effect that they take each other as their wife or husband, there is an absence of real consent, or either of the parties has not reached marriageable age, being 18 or 16 in exceptional circumstances.
Where none of these legal impediments to a state or territory officer solemnising a marriage arises, section 39 of the Marriage Act states that a state or territory officer 'may' solemnise a marriage. But nothing in the Marriage Act requires a state or territory officer to solemnise a marriage in these circumstances. So the Marriage Act allows a state or territory officer to refuse to solemnise a marriage for personal reasons such as a dislike of interracial or interfaith marriage. This is perverse. State and territory officers, including officers with the duty of registering marriages, represent us all. They should carry out their duties. If for personal reasons they feel they cannot carry out their duties, they should quit.
The issue I identify will have greater significance once we legalise same-sex marriage because then the Marriage Act would allow a state or territory officer to refuse to solemnise a marriage because of a personal dislike of same-sex marriage. My amendment would fix this issue. It would insert a provision stating that a state or territory officer who is authorised to solemnise a marriage must not refuse to solemnise a marriage where there are no legal impediments to the officer solemnising the marriage. These legal impediments are captured in section 99 and section 100 of the Marriage Act. The specific wording of my amendment is that state and territory officers 'must not refuse to solemnise a marriage unless section 99 or 100 of this Act applies'. Allowing state and territory officers to refuse to solemnise same-sex marriages would undermine the purpose of legalising same-sex marriage. Surely, if we are to legalise same-sex marriage, then a same-sex couple should be able to go to a government marriage registry office with confidence that they will have their marriage solemnised—even an opponent of same-sex marriage should agree to that. We have separately debated the issue of whether and which non-government celebrants should be free to refuse to solemnise a same-sex marriage. But let me point out that it would be topsy-turvy to restrict any non-government celebrant from refusing to solemnise a same-sex marriage while allowing state and territory officers to refuse to solemnise a same-sex marriage.
Finally, let me pre-empt an excuse that may be given for opposing this amendment. Some left-leaning senators may argue that state and territory officers who refuse to solemnise a marriage for personal reasons would be breaching laws beyond the Marriage Act so we do not need to rule out such refusals in the Marriage Act. But it's far from clear that any other law would be breached. For instance, state and territory officers who refuse to solemnise a marriage would not be breaching the Commonwealth Sex Discrimination Act in its current form. Through its use of the word 'may', the Marriage Act provides a discretion to state and territory officers. Using that discretion would seem to be in direct compliance with the Marriage Act, and acts done in direct compliance with the Marriage Act currently enjoy an exemption from the Sex Discrimination Act.
It is true that Senator Smith's bill is winding back the exemption from the Sex Discrimination Act. There will no longer be an explicit exemption of acts done in direct compliance with the Marriage Act, but there is no provision in either act giving the Sex Discrimination Act precedence over the Marriage Act, so, if a state or territory officer refuses to solemnise a marriage, it would be a lawyers' picnic trying to work out if that was legal. The responsible course is to amend the Marriage Act so that state and territory officers cannot refuse to perform their duties. I suspect that left-leaning opponents of this amendment know that this would be the responsible course, but their current siege mentality means that they will say no to all amendments, even from supporters of the legalisation of same-sex marriage like me. This is a dereliction of duty. I commend my amendment to the House.