Act of Parliament assented to - Act No. 129 of 2017

Overview

The Marriage Amendment (Definition and Religious Freedoms) Act 2017 was assented to on 8 December 2017 by His Excellency the Governor-General, in the name of Her Majesty, marking a significant legislative change in Australia. This Act was introduced to address the gap in the definition of marriage by amending the Marriage Act 1961 to allow for the marriage of same-sex couples, thereby ensuring that the definition of marriage is inclusive and recognises the rights of all Australians to marry regardless of their gender. The policy objective of this Act is to provide equality and non-discrimination in marriage while also protecting the rights and freedoms of religious institutions and individuals to hold and express their beliefs about marriage. The Act was passed by the Senate and the House of Representatives in Parliament, reflecting a broad consensus on the importance of these reforms.

Scope and Application

The Marriage Amendment (Definition and Religious Freedoms) Act 2017 is an Act of Parliament that amends the definition of marriage in Australian law, allowing for the legalisation of same-sex marriage. This Act applies to all individuals and entities involved in the marriage process, including celebrants, marriage celebrants' associations, and relevant government bodies. The geographic reach of the Act is national, as it pertains to the Commonwealth of Australia and its territories, thereby extending uniformly across all states and territories. The Act does not exclude any specific groups or entities; however, it provides certain protections for religious freedoms, ensuring that religious institutions and their members are not compelled to perform or recognise same-sex marriages if it conflicts with their beliefs. The application of the Act is further extended through subordinate instruments, which may provide additional regulations and guidelines for the implementation of the Act's provisions.

Key Provisions

The primary operative sections of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (section 3) redefine marriage by removing the specific references to a marriage being between a man and a woman. Instead, it defines marriage as the union of two people to the exclusion of all others. This change effectively legalises same-sex marriage in Australia. Additionally, section 40 shields religious institutions, celebrants, and officials from being compelled to participate in the solemnisation or recognition of same-sex marriages, provided the act is done in good faith and in accordance with the beliefs of the religious institution or official. The Act imposes several obligations on the parties and entities it governs. For instance, under section 38, religious institutions and officials are required to act in accordance with their religious beliefs when performing or declining to perform marriage-related ceremonies. Similarly, under section 39, celebrants must not be compelled to solemnise a marriage that conflicts with their religious beliefs. The Act also mandates that any changes to the definition of marriage must not affect the validity of existing marriages, as stipulated in section 37. The Act delineates specific offences and penalties for breaches, although it primarily focuses on protecting religious freedoms rather than imposing criminal penalties on marriage celebrants or officials. Section 43 outlines that any person who contravenes the protections provided by sections 38 and 39 does so at their peril and is liable for damages in a court of law. However, the Act does not specify maximum penalties for these breaches, leaving it to the courts to determine appropriate remedies on a case-by-case basis. Moreover, the Act ensures that any action taken under it must comply with the Australian Constitution, particularly in relation to the separation of church and state, as stated in section 116.