Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
Marriage Amendment Bill (No.2) 2012
EXPLANATORY MEMORANDUM
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Senators Crossin, Brown, Pratt and Marshall
Marriage Amendment Bill (No.2) 2012
OUTLINE
The Marriage Amendment Bill (No.2) 2012 amends the Marriage Act 1961 (the Act) to establish
marriage equality for same-sex couples principally by amending the definition of marriage in
subsection 5(1) of the Act.
The bill also inserts a new paragraph into section 47 to specify that a minister of religion, a person
authorised under a State or Territory law, or a marriage celebrant is not under an obligation to
solemnise a marriage where the parties are of the same sex.
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Schedule 1 - Amendment of the Marriage Act 1961
1. Item 1 of Schedule 1 repeals the definition of marriage that is in subsection 5(1) of the Act,
and substitutes that definition with a new definition:
marriage means the union of two people, to the exclusion of all others, voluntarily
entered into for life.
2. Item 2 of Schedule 1 amends subsection 45(2) of the Act, which sets out the form of
ceremony where a marriage is solemnised by a minister of religion or other authorised
celebrant. Subsection 45(2) sets out the words a person may use to indicate his or her
intention to marry, in a ceremony conducted by an authorised celebrant who is not a minister
of religion. This amendment provides that these words may include the words "or partner",
to make it clear that a person may take a person as his wife, or her husband, or partner.
3. Item 3 of Schedule 1 makes an amendment to section 46 of the Act in regard to the words
used by authorised celebrants to explain the nature of a marriage relationship.
In subsection (1), the words "a man and a woman" are to be replaced with the words "two
people", to remove the gender-specific reference of the marriage parties.
4. Item 4 of Schedule 1 inserts the words "or in any other law" into section 47, to provide that
nothing in Part IV of the Act, or in any other law, imposes an obligation on, or prevents a
condition being imposed by, an authorised celebrant. This amendment has the effect of
providing that nothing in Part IV of the Act, or any other law, requires an authorised
celebrant, being a minister of religion, to solemnise any marriage, and does not prevent an
authorised celebrant from imposing a particular condition on the solemnising of any
marriage.
5. Item 5 of Schedule 1 inserts a new paragraph (aa) after paragraph 47(a) of the Act. Section
47 of the Act in part provides that an authorised celebrant, being a minister of religion, is not
bound to solemnise any marriage. The new paragraph (aa) is inserted to avoid any doubt in
regard to the operation of this section specifically in regard to same-sex marriages.
6. Item 6 of Schedule 1 inserts the words "or partner" into subsection 72(2) of the Act, which
provides for the form and ceremony of marriages of members of the Defence Force
overseas. Subsection 72(2) sets out the words a person may use to indicate her or her
intention to marry. This amendment provides that this may include the words "or partner",
to make it clear that a person may take a person as his or her husband, wife or partner.
7. Item 7 of Schedule 1 repeals section 88EA which currently provides that a union solemnised
in a foreign country between same-sex couples must not be recognised as a marriage in
Australia. It is inconsistent with the other provisions of this bill.
8. Item 8 of Schedule 1 amends Part III of the Schedule to the Act to replace the words "a
husband and wife" in table item 1 with the words "two people".
9. Item 9 of Schedule 1 confirms that, to avoid doubt, the amendments made by this Schedule
do not limit the effect of section 47. That is, a minister of religion is not required to
solemnise a marriage.
10. Item 10 of Schedule 1 provides that the Governor-General may make regulations amending
other Acts, that are consequential on, or otherwise relate to, the enactment of this Act.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Marriage Amendment Bill (No.2) 2012
This bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the bill
This bill will amend the Marriage Act 1961 to ensure all adult couples, who have a mutual
commitment to a shared life, have equal access to marriage.
Human rights implications
This bill seeks to end discrimination against same-sex couples who wish to have their relationships
recognised by the State by amending the definition of marriage that is currently in section 5 of the
Marriage Act 1961.
At the same time, this bill protects religious freedom.
This bill will permit a minister of religion, a person authorised under a state or territory law or a
marriage celebrant authorised under the Marriage Act 1961 to perform a marriage between same-
sex couples and will permit that marriage to be recognised in Australian law.
In addition, proposed amendments to section 47 of the Act will reinforce the existing provisions that
ensure that a minister of religion is under no obligation to solemnise a marriage where the parties to
that marriage are of the same sex.
Conclusion
This bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
because it ends an existing discrimination against same-sex couples who wish to have their
relationships recognised by the Australian Government.