Q&A: What happens after the ‘yes’

Monday, Nov 13, 2017, 12:36 AM | Source: Pursuit

Carolyn Evans

Australians have voted 61.6 per cent in favour of changing the marriage act to allow same sex marriage in what Australian Prime Minister Malcolm Turnbull says is an “overwhelming” win for the “Yes” campaign. He says it is now up to the parliament to pass the necessary legislation in what will be a free vote before the end of the year. But is it really that simple?

We put five key questions about the process of changing the Marriage Act to Deputy Vice-Chancellor and Deputy Provost, Professor Carolyn Evans - who is also the former Dean of the Melbourne Law School at the University of Melbourne.

The Bill still has to be passed by the House of Representatives and the Senate. Picture: Getty Images

1. From a legal perspective, what needs to be addressed in the Act?

The most important change is the definition of marriage so that it is between two people rather than a man and a woman and to remove the requirements for celebrants to say at a ceremony that marriage is between a man and a woman. There is also a need to set out in what circumstances ministers or celebrants can refuse to conduct a marriage.

There’s also a likely change in the recognition of foreign marriages to include recognising some same-sex marriages conducted overseas. There are also some minor and technical provisions around issues such as gender-neutral language throughout the Act.

2. What could the Marriage Act look like?

If the changes are restricted to the relatively minimal set that are needed to allow for same-sex marriage under Australian law, the Marriage Act will look very similar to the way that it looks at present. There is only a handful of changes that are necessary.

However, there is discussion about trying to include within the Act a host of protections for religious freedom, individual conscientious objection, free speech and so forth. If these were included in the Marriage Act itself, it would change radically and include a substantial range of subjects which are not included in the current laws.

3. How long will it take and what’s the process?

The process is the same as it is for any other Act of Parliament.

The Bill has to be passed by the House of Representatives and the Senate, receive Royal Assent and then come into force at a time that is determined by the Act. The postal survey might have changed the political context, but it doesn’t change the legal or constitutional requirements for making a law. This is different from a referendum which creates a binding change in the Constitution.

How long it takes depends very much on the politics. If a Bill is produced that has sufficient buy-in from parliamentarians so that it can pass both Houses without amendment, it might be passed in a couple of days. If it is more politically contentious, it could take months. Now that there are two competing proposals out there, it might well take longer.

Indeed, even if the vote is a clear ‘yes’ - it could potentially not happen at all. That seems politically unlikely, but the results of the vote do not require any particular outcome at a legal level.

It is likely that the Act could also include an exemption for religious and civil celebrants from performing same-sex marriages. Picture: Shutterstock

4. What’s covered in the proposed Bills?

There are now two proposed Bills - the Smith Bill and the Paterson Bill.

The Smith Bill is a private member’s bill that was prepared by Western Australian Liberal Senator Dean Smith. It was circulated to all federal Liberal MPs in early August when they agreed on the postal vote. It is not a government bill, but it is the leading option for debate.

While the Smith Bill is quite lengthy, much of the Bill is taken up with relatively minor or technical changes. It introduces a provision outlining the objectives of the Act which are to both introduce marriage as between two people and also to protect religious freedom and the rights of religious ministers to perform religious marriages consistent with their religion.

The key substantive changes are:

  • it changes the definition of marriage from a ‘man and a woman’ to ‘two people’
  • it creates a new category of marriage celebrant called a ‘religious marriage celebrant’ who is both a marriage celebrant and a minister of a religion. This person is to make clear that s/he is a religious marriage celebrant in any document relating to marriages, including advertisements. This category is distinct from those recognised as religious ministers for the purposes of the Act who belong to certain, recognised religious denominations
  • both religious marriage celebrants and religious ministers may refuse to perform marriage ceremonies on the basis of their religious beliefs. The provisions outlining this are more complex than the ones in the current Act which simply say that there is no obligation imposed on a religious minister to carry out a marriage.
  • it creates an exemption for a ‘body established for religious purposes’ from having to provide goods, services or facilities for the marriage or purposes incidental to the marriage if, to do so, wouldn’t conform with the teachings of the religion or is necessary to avoid injuring the religious sensibilities of adherents. Military chaplains are given similar protection
  • it deletes provisions that restrict the recognition of same-sex marriages solemnised overseas
One substantive changes includes altering the definition of marriage from a ‘man and a woman’ to ‘two people’. Picture: Shutterstock

The Paterson Bill was only released this week and represents the views of several more conservative parliamentarians. It includes similar provisions to the Smith Bill but goes a lot further.

A ‘relevant marriage belief’ is defined as including a genuine religious or conscientious belief that marriage should be between a man and a woman. But it also relates to beliefs associated with that ideology; for example, that the family structure consisting of a man and woman united in marriage has significant advantages for raising children, or that “gender difference and complementarity of men and women is an inherent and fundamental feature of human society”.

A ‘relevant belief’ is defined more broadly to capture beliefs like the ‘normative state of gender’ is binary and can be determined in most cases at birth, and the belief that a same-sex relationship is not consistent with the person’s religion or conscience.

Any mix of one or more of these beliefs qualifies for protection.

Under the Paterson Bill, individuals who express or act on a ‘relevant marriage belief’ or a ‘relevant belief’ are protected in the legislation, particularly against claims against them in discrimination or vilification laws.

These individuals also have the right to refuse service to a same-sex marriage - like baking a wedding cake, or hiring out a hall. They have the right to withdraw their children from a class if the class does not conform with their ‘relevant marriage belief’ or ‘relevant belief’ and cannot be subjected to unfavourable treatment because of holding such beliefs.

Further, the Commonwealth is prohibited from discriminating against an organisation in the allocation of funding because of its traditional marriage beliefs or from denying charitable status to an organisation on that ground.

The Bill also introduces a new offence of victimisation of people aimed at preventing others from subjecting or threatening a person on the basis of that individual, amongst other things, bringing civil proceedings under the Australian Human Rights Commission Act 1986.

5. How would these changes interact with existing discrimination law?

Under the current Marriage Act and both the Smith and Paterson Bills, religious ministers do not have to perform religious marriages when they conflict with their religious beliefs. Under the Smith Bill, a narrow class of civil celebrants will not have to perform marriages that conflict with their religious beliefs, and under the Paterson Bill a much wider group of civil celebrants will not have to perform marriages if they conflict with their religious or conscientious beliefs. Discrimination law will not apply in these circumstances.

The Marriage Act keeps the performance of the marriage ceremony itself largely outside the reach of the discrimination laws. Picture: Wikimedia

Currently, there are laws at both Commonwealth and State level that prohibit discrimination on the basis of sexual orientation. The Commonwealth Sex Discrimination Act 1984 Section 5A prohibits discrimination on the grounds of sexual orientation.

The Smith Bill largely replicates the terms of the Sex Discrimination Act and says that with respect to marriage or matters incidental to marriage, religious bodies will enjoy the right to refuse services to same-sex couples so long as refusing to do so “conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion’.

However, under the Smith Bill, the usual Sex Discrimination Act provisions continue to apply to individuals. This law prohibits discrimination against a person on the basis of their sexual orientation with respect to (among other things) the provision of goods, services and facilities.

The Paterson Bill, however, goes much further and gives individuals a right to refuse goods, services or facilities to marriages (or matters incidental to marriages) that do not conform with their religious beliefs. The Bill seeks to override any Commonwealth or State discrimination laws to the contrary.

This would be a departure from the usual way in which Australian law deals with discrimination, which does not allow individuals religious exemptions. Such exemptions have the potential to undermine discrimination law by allowing people to opt out of provisions that they don’t like.

So, under the Smith Bill, if a religious individual has a hall for hire for weddings, she would not be able to refuse a gay couple the right to marry in it, even if her religion says that such a marriage was wrong. A Church would, however, be permitted to refuse that couple the right to be married in the parish hall.

Under the Paterson Bill, both the Church and the individual would be able to refuse to hire the hall. That is a significant change to the current way in which Australian law operates.

Full results of the postal survey are available at the Australian Bureau of Statistics here.

Banner: Getty Images

University of Melbourne Researchers