Draft Australian Same Sex Marriage legislation unveiled

Today the Federal Attorney-General, Senator the Hon George Brandis QC, released an Exposure Draft of the legislation that would, if it were to pass the Federal Parliament, introduce same sex marriage to Australia- the Marriage Amendment (Same-Sex Marriage) Bill. There is a good summary of the provisions of the legislation in a press release issued by the Attorney-General. This follows the introduction on 14 September 2016 of an enabling Bill to allow a plebiscite, a popular vote, on the matter to be put to the Australian public, the Plebiscite (Same-Sex Marriage) Bill 2016. That Bill has not yet received any substantive consideration by the Parliament.

Earlier today the leader of the Australian Labour Party Opposition, Bill Shorten, announced that his Party would be voting against the enabling Plebiscite Bill when it reaches the Senate: see “Same-sex marriage: Plebiscite would harm gay and lesbian people, Bill Shorten says” (ABC News). It seems clear, at least if all the cross-bench members who have indicated their intentions maintain those intentions, that the Bill will be defeated in the Senate.

The ALP and the Greens will presumably now be urging the Government to put its legislation directly to a Parliamentary vote. The Government, however, has steadfastly maintained that it went to the recent Federal election with a promised plebiscite as the only route to introduction of same sex marriage, and that if there is no plebiscite, the matter will have to be dealt with by some future Government after the next Federal election. 

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Some of Victoria’s “inherent requirements” amendments may be unconstitutional

The Victorian Government introduced the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 into its Parliament on 30 August 2016. It has passed the Legislative Assembly without amendment, and is presently before the Legislative Council. The Bill proposes the amendment of the Equal Opportunity Act 2010 (Vic) to make it more difficult for a religious body to claim that it is not “discriminating” when it declines to hire, or fires, someone whose behaviour or convictions is contrary to the ethos of the body. The amendments introduce an “inherent requirements” test which must be satisfied in order for such an action to be viewed as falling outside the prohibition in the legislation on detrimental treatment based on “religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity” (the “Victorian prohibited grounds”).

I have commented in a previous post as to why I think this is poor legislation from a policy perspective.[1] In that previous post I briefly noted that an argument could be made that some of the amendments, at least, would be unconstitutional. Since that previous post I have looked into the area further and am fairly sure that this is the case. Here I want to develop the case a bit further. 

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Protection of Religious Free Speech in Australia

I am presenting a paper on protection of free speech and connections with religious freedom at the Australasian Christian Legal Convention in Brisbane today. A full copy of the paper can be downloaded here: protection-of-religious-free-speech-in-australia . It is a fairly lengthy document but I hope it may be a useful resource for lawyers interested in protection of free speech on religious matters in Australia.

John Howard and the Myths of the 2004 Marriage amendments

The debates over redefining marriage in Australia have acquired in recent years some high profile “myths” or, to use the modern parlance, “memes”, which are regularly repeated. One of the most enduring is that the battle for same sex marriage is impeded by a supposedly shocking set of amendments to the Marriage Act 1961 which were made by conservative Prime Minister John Howard in 2004.

To take some recent quotes which illustrate the points:

“It was the Howard Government that in 2004 changed the Marriage Act to specifically refer to marriage being “the union of a man and a woman,” locking out any possibility to include gay couples in the definition without a change in the law.”[1]

“[T[his weekend marks the twelfth anniversary of John Howard’s amendments to the Australian Marriage Act. You know, those amendments that didn’t require a plebiscite? Those amendments that made it a legal requirement for celebrants to remind champagne-tipsy wedding parties around the country that marriage was between a man and a woman at the exclusion of all others?” [2]

There are two “myths” being presented here. One is obviously wrong but is somehow regularly repeated: that Prime Minister Howard somehow effected a massive change to the nature of marriage in Australia which now only needs to be “unwound” to allow same sex marriage. (And in recent days, the point is sometimes added that this massive change didn’t require a plebiscite, so the currently proposed change also shouldn’t need such.) The second myth is perhaps a more technical and understandable error, but it is also an error and needs to be corrected wherever it appears.

Myth 1: the 2004 amendments redefined marriage

The first error is to suggest that the amendments made a fundamental change in the nature of marriage law. They did nothing of the sort. The Marriage Amendment Act 2004 (No 26 of 2004) was a short piece of legislation, which did three simple things:

  • it added a formal definition of the word “marriage” to s 5 of the Act, where other technical definitions are set out;
  • it made it clear that in the provisions in s 88B allowing recognition of overseas marriages, the traditional definition of marriage inserted into s 5 was applicable; and, for greater certainty
  • it added s 88EA to the Part of the Act dealing with overseas marriages to make it absolutely clear that same sex “unions” would not be recognized as marriages.

These changes did not fundamentally alter the nature of marriage in Australia. The Second Reading Speech when introducing the Bill said that the aim was to “reinforce the basis of this fundamental institution”, [3] and did not signal any attempt to “redefine” it. Indeed, the speech pointed out that, while the Act contained no formal definition of marriage in the “definitions” provision, it did incidentally spell out the nature of marriage in another provision (as we will see below):

It does contain a statement of the legal understanding of marriage in the words that some marriage celebrants must say in solemnising a marriage that: `Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’

The Government believes that this is the understanding of marriage held by the vast majority of Australians and they should form the formal definition of marriage in the Marriage Act.

This Bill will achieve that result.

It could also be noted that the “classic” definition of marriage had also been inserted by Parliament into s 43 of the Family Law Act 1975 when that was enacted. Despite that Act allowing for “no fault” divorce, the Act stressed that it was not intended the change the commitment that parties were entering into when they were married. Section 43(1)(a) still provides:

Principles to be applied by courts

(1)  The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:

(a)  the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life; (emphasis added)

Brennan J in the High Court decision of R v L (1991) 174 CLR 379 at 391 had noted, well before 2004:

In Hyde v. Hyde and Woodmansee[4] Lord Penzance defined marriage as “the voluntary union for life of one man and one woman, to the exclusion of all others” and that definition has been followed in this country and by this Court.[5] It is the definition adopted by the Family Law Act, s.43(a) of which requires a court exercising jurisdiction under that Act to have regard to “the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life”. Marriage is an institution which not only creates the status of husband and wife but also, without further or specific agreement, creates certain mutual rights and obligations owed to and by the respective spouses.[6] (emphasis added)

It is also worth noting that in 2004 the so-called Howard amendments received bi-partisan support from both the Liberal/National Coalition Government, and from the Labour Opposition. They were not, and were not seen as, controversial. They simply clarified that the meaning of marriage that had been in force at Federation, as understood in the Hyde case, was the meaning that had been intended all along. They also made it clear that Australia would not recognize by a “back door” (through overseas marriages) a change to marriage that it had not authorized locally.

Myth 2: Celebrants reading out the words

The second myth set forth above is that it was this 2004 law that added a requirement for celebrants to say these words in celebrating marriages. This is just plain wrong. The 2004 Act did not amend what civil celebrants have to say. That had been there in the legislation in s 46 since 1961 (and is still there). The provision, as initially enacted, read as follows:

46.(1.) Subject to the next succeeding sub-section, before a marriage is solemnized by or in the presence of an authorized marriage celebrant, not being a minister of religion of a recognized denomination, the authorized celebrant shall say to the parties, in the presence of the witnesses, the words-

“I am duly authorized by law to solemnize 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 a man and a woman to the exclusion of all others, voluntarily entered into for life.”,

or words to that effect. (emphasis added)

Note, however, that this provision only applies to marriage celebrants who are not ministers of religion. The reason for this seems to be that it was assumed that a “recognized denomination” approved by the Governor-General under s 26 of the Act, to allow its ministers to celebrate marriages, would have its own way of stating the nature of marriage (which would have been checked administratively before the authorization was given.) Hence this extra requirement would mainly apply to civil registry officers, when the Act was first passed. Later the Act was seen to authorize a wide range of other “civil celebrants”, but again s 46 would apply to those celebrants, to ensure that Australians were given a clear picture of the “solemn and binding” nature of the relationship they were entering.[7]

It is amazing how this misunderstanding, that the 2004 amendments somehow led to civil celebrants having to spell out the nature of marriage, keeps on being perpetuated. I have even had it related to me by a senior retired legal figure. I speculated in my conversation with the gentleman that what had happened was that in more recent years he was going to more civil weddings rather than church weddings. As noted, churches have never been required to say this as part of their ceremonies. Perhaps as less people celebrate weddings in churches, more guests have noticed the s 46 requirement.


The debate over whether same sex marriage should be introduced, and how the decision should be made, will no doubt continue for some time. But the participants should get their facts straight, and on the effect of the amendments made in 2004, not make claims that are clearly wrong.

[1] “Former Prime Minister John Howard says politicians “in fear” of marriage equality” http://www.news.com.au/lifestyle/gay-marriage/former-prime-minister-john-howard-says-politicians-in-fear-of-marriage-equality/news-story/d000c28a0d79c6e443353ef1ee73283b (Mar 2, 2016).

[2] “12 years later: Is this the last anniversary of Howard’s marriage amendments?” (11 August 2016)

http://www.samesame.com.au/features/14081/12-years-later-Is-this-the-last-anniversary-of-Howards-marriage-amendments .

[3] Senate Hansard, 12 Aug 2004, at p 26503.

[4] (1866) LR 1 P and D 130, at p 133.

[5] (39) Calverley v. Green [1984] HCA 81; (1984) 155 CLR 242, at pp 259-260; Khan v. Khan [1963] VicRp 32; (1963) VR 203, at p 204.

[6] Eversley’s Law of Domestic Relations, 6th ed. (1951), pp 2-3.

[7] Section 46(2) allows an exemption to the requirement to say the exact words of s 46(1) where a celebrant provides a standard “form and ceremony” which states the nature of marriage in an equivalent way.This may have been used to exempt some religious marriage celebrants (not from a “recognized denomination” but appointed for a small religious group) from saying the precise s 46(1) words, so long as they sufficiently indicate the elements of the marriage relationship. But in all the circumstances it seems likely that the “man/woman” requirement would need to be spelled out in what these celebrants said, under the current law.

Victorian challenge to religious freedom of faith-based organisations

On 30 August 2016 the Victorian Attorney-General introduced into the Victorian lower house the Equal Opportunity Amendment (Religious Exceptions) Bill 2016. The Bill proposes to “amend the Equal Opportunity Act 2010 to modify the religious exceptions in relation to the employment of a person by religious bodies and schools”. I would like to suggest that, if enacted, it will fundamentally impair the religious freedom of faith-based organisations. In fact, it might also be found to be constitutionally invalid and of no effect.

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Is denying same sex marriage unconstitutional?

An article in The Conversation on 30 August 2016,  “Marriage ‘inequality’ is a threat to religious freedom – and it is probably unconstitutional” by academic Dr Luke Beck, Lecturer in Constitutional Law at Western Sydney University, suggests that, far from proposals to redefine marriage to include same sex couples being a threat to religious freedom, the current law (which does not recognize such relationships) is itself in breach of free exercise of religion principles.

Dr Beck, it has to be said, is one of Australia’s foremost legal experts on s 116 of the Constitution (I regularly cite his many articles on the topic to my students in the “Law and Religion” course I teach.) So it is with some hesitation that I have to say I disagree with his view on this issue. But disagree I do.

As I understand his argument, it proceeds in this way:

  • Section 116 of the Constitution prevents the Federal Parliament from enacting a law that “interfere[s] improperly with religious freedom.”
  • Under s 47 of the Marriage Act 1961 as it now stands, a minister of religion may decline to solemnize any marriage, for any reason whatsoever. [Controversially, Dr Beck suggests that this would even allow a religious celebrant to decline to solemnize a marriage between a couple of different races, if he or she so chose. With respect, as we lawyers say, I am not quite so sure about this. The opening words of s 47 are “Nothing in this Part…(a) imposes an obligation…”. That is, no rule otherwise laid down by Part IV of the Marriage Act 1961 imposes such an obligation. But there is surely an argument that, for example, another valid piece of Commonwealth law, such as the Racial Discrimination Act 1975 s 13, forbidding a refusal to supply “services” to a person on race-based grounds, would make such an action unlawful?]
  • This provision, s 47, then, will prevent ministers of religion being required to solemnise same sex marriages, should such be introduced. “Marriage equality advocates want to keep this section. If the Marriage Act is changed to allow same-sex marriages, ministers of religion will not be required to solemnise those marriages.” [For avoidance of doubt, as noted above, s 47 should probably be expanded to refer to “other laws” not having such an effect, as well as negating the operation of Part IV.]
  • But there are some ministers of religion who would like to solemnise same sex marriages at the moment.
  • However, the current Act prevents this happening. Dr Beck refers by way of a link to s 101 of the Act (which refers to persons solemnising marriages who are unauthorised to do so), but I would like to suggest his case would be stronger if he referred to s 100:

“A person shall not solemnise a marriage, or purport to solemnise a marriage, if the person has reason to believe that there is a legal impediment to the marriage or if the person has reason to believe the marriage would be void.”

  • There is an interesting technical debate about whether a purported “marriage” under the current law between two parties of the same sex would be “void” or not (or a “nullity”), but I think one could pretty clearly say there was a “legal impediment” to the purported marriage. Section 5 of the Act currently contains a very clear definition of marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.
  • Dr Beck then adds that, even if a couple wanted a solely “religious” marriage ceremony, which was not to be regarded as a legally valid one, the law would prevent this happening. He says: “a minister of religion in Australia can be sent to prison simply for holding a religious marriage ceremony for a same-sex couple.” Indeed, he points out that the same penalty is applicable for a minister who purports to conduct a religious ceremony for an opposite sex couple, without them having been through a civil ceremony.
  • On this issue, I think he is correct. The law of Australia has been established as it is, to discourage persons entering so-called “marriages” which are not actually recognized as such by the legal system. One obvious example is where a religious group might consider it within their system to marry a 14-year-old girl, for example. If the law allowed an “apparent” marriage of this sort to take place, it would be confusing for the parties and others, and likely to lead people to think the marriage was valid under Australian law, when it is not. For this reason all purely religious ceremonies that purport to “marry” are forbidden, except where the parties concerned have gone through a prior valid civil ceremony.
  • Indeed, the present Chief Justice of the High Court, French CJ, when he was a trial judge in the Federal Court, commented on this matter in Re Michael William Nelson v M Fish and R Morgan [1990] FCA 28 (9 February 1990) when he noted that the religious freedom of “non-recognised” religious groups was preserved by the provisions of s 113 allowing a minister of such a group to conduct a religious ceremony:

    “the provisions of s 113(5) preserve in a way that is consistent with the free exercise of religious observance the right of persons married in the eyes of the law to undergo a religious form of marriage even where the religion concerned is not a recognised denomination and its minister not a registered minister” (at [14]).

However, where my disagreement with Dr Beck arises is in the conclusion he draws: that the fact that a minister of religion may not currently solemnise a same sex marriage, means that the provisions of the Marriage Act 1961 which achieve this result may be constitutionally invalid.

My main reason is that (as Dr Beck would no doubt agree) a person’s religious commitment is not an automatic “trump card” when other principles arise. Not every law that is contrary to a person’s private religious commitments is an “undue” restriction on religious freedom. A law that prevented a revived Aztec priesthood from conducting ritual human sacrifices at noon would be perfectly valid. The law currently forbids marriage under religious law of 14 year olds. It does so for a valid public policy reason concerning child protection. The law currently forbids a celebrant from purporting to solemnise a same sex “marriage”. Agree with that law or not, it does so for public policy reasons related to the support for the traditional view of marriage as between a man and a woman. That is a public policy stance which was articulated with clarity in Federal Parliament by the bi-partisan support for an amendment in 2004 inserting a clarifying definition of marriage into the Act to make it clear that same sex unions celebrated outside Australia would not be recognized as “marriages” within Australia, despite our otherwise generous recognition rules for such marriages. (This 2004 amendment, of course, did not effect a fundamental change in the Australia law, as is sometimes suggested. The definition of marriage as between a “man and a woman” was already contained in another part of the Marriage Act 1961 itself when first enacted, in s 46; and it was later enacted as part of the Family Law Act 1975, s 43.)

To again quote from the decision of French J (as his Honour then was) in Nelson v Fish, at [13]:

“The freedom guaranteed by s.116 is not absolute. It is freedom in a society organised under the Constitution – Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth [1943] HCA 12; (1943) 67 CLR 116, 131 (Latham C.J.), 155 (Starke J), 159 (Williams J.). It is “subject to limitations which it is the function and duty of the courts to expound. And those limitations are such as are reasonably necessary for the protection of the community and in the interests of social order” (p 155 per Starke J. – see also 132 per Latham C.J.).”

The forthcoming plebiscite, if it happens, may reveal whether or not the consensus of the Australian community on those matters has changed in recent years. But it does not seem plausible that a definition of the legal relationship of marriage that has been in force for most of recorded human history, in terms of the differential sexes of the parties, would overnight become an illegitimate policy end, which cannot be protected by Parliament.

Dr Beck comments that: “There is no justification for criminalising a harmless religious ceremony, which everyone knows has no legal effect, but which may have religious significance for the participants.” But the very same logic would justify allowing a polygamous marriage ceremony to take place, or an under-age ceremony, or one where the parties are not both fully consenting, under religious views. Australian law has long taken the view that, in the interests of maintaining clarity about who is married to whom, religious marriage ceremonies may not be conducted where there has been no prior civil ceremony. Community confusion will be bound to be created in these cases, even if (as would by no means always be the case) all the parties who were present were completely clear about the non-binding nature of the ceremony. (I have commented on these issues in a previous paper on the question of whether churches who disagree with the introduction of same sex marriage ought to withdraw from the marriage system if it is introduced.)

There may also be some doubts about the fairly wide view of the operation of s 116 which Dr Beck impliedly supports. On this issue in fact I tend to think he is correct, that the provision ought to allow a challenge to Commonwealth legislation when it “interfere[s] improperly” (to use Dr Beck’s phrase) with religious freedom; or when it amounts to an “undue infringement” of the right to free exercise of religion, as it was put by Latham CJ in Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 at 128. There are, however, some authorities which suggest a much narrower scope to the s 116 protection of religious freedom: that it would only prevent a law the main aim or purpose of which was to impair religious freedom: see eg some of the comments in Kruger v Commonwealth (the “Stolen Generations case”) [1997] HCA 27; (1997) 190 CLR 1, esp per Brennan J at 40; more recently Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 157 (5 July 2016) at [145]-[150]. I think, however, as Dr Beck seems to suggest, that there is a sound case to be made that the prohibition on interference with free exercise of religion operates more broadly. For example, I would certainly want to maintain that a law recognizing same sex marriage, which required all ministers of religion to celebrate such marriages, would be unlawful under s 116. And my view is s 116 may in fact also operate to protect other religious participants in the “wedding industries” from being required under other Commonwealth laws to provide their artistic services in the celebration of same sex unions.

However, because of the lack of clarity concerning how s 116 operates, in my view Parliament ought to explicitly provide such protections for religious freedom if it enacts laws allowing same sex marriage. Protection for religious free speech will also be needed if those who wish to maintain a respectful disagreement with the majority sexual orthodoxy, on religious grounds, are to be able to continue to articulate their views (see my previous comments on the case brought against Archbishop Porteous in Tasmania for simply teaching the Roman Catholic view of marriage in a booklet distributed to Roman Catholic schools.)

Despite Dr Beck’s optimism that the introduction of same sex marriage will not “presage an attack on religious freedom and people of faith in the Australian community”, unless careful consideration is given to these issues, this is likely, in fact, to be the outcome. Of course the freedom of religious groups to allow their ministers to conduct same sex weddings ought to be protected, if the institution of marriage is to change in the way proposed. But it is not those religious groups who find themselves under regular attack from media and politicians alike as “bigots” and “homophobic”. To quote Sir John Latham again, from the landmark Jehovah’s Witness case:

“such a provision as 116 is not required for the protection of the religion of a majority. The religion of the majority of the people can look after itself. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities (at 124).”

Litigation involving Churches in NSW

I was privileged to host a guest lecture in the “Law and Religion” course I teach, on Friday August 26, from Professor Keith Mason, former President of the NSW Court of Appeal and renowned legal scholar and jurist, on the topic of “Litigation involving churches in NSW”. Professor Mason is one of Australia’s leading experts on the law involving churches, having been involved as both counsel and on the bench in a number of important cases. His lecture was a fascinating tour of church litigation from the earliest days of the Colony up till the case involving the Bathurst Diocese just last year (for my earlier comments on that case see this previous post.)

Professor Mason has indicated that he is happy for me to share the audio of the talk, which can be found here. For those who interested in reading the cases he refers to, the following provides the full citations (and links where available):

Cases mentioned in Professor Keith Mason’s lecture

  1. “Hotheads”
    1. R v Hall (No 1) [1829] NSWSupC 13 (12 March 1829) ; Hall v Scott [1830] NSWSupC 29; (1830) NSW Sel Cas (Dowling) 437 (6 April 1830)
    2. Ex parte Rev George King [1861] NSWLeggeSC 1; (1861) 2 Legge 1307 (9 February 1861)
  2. Attempts to control conscience by legal processes
    1. Wylde v Attorney-General (NSW) [1948] HCA 39; (1948) 78 CLR 224 (6 December 1948) (“the Red Book case”)
    2. Scandrett v Dowling (1992) 27 NSWLR 483 (not available freely online)
  3. Churches as defendants
    1. Trustees of the Roman Catholic Church v Ellis & anor [2007] NSWCA 117 (24 May 2007)
    2. Anglican Development Fund Diocese of Bathurst v Palmer [2015] NSWSC 1856 (10 Dec 2015).