Analysis: The same sex marriage amendment draft bill

This is the bill circulated to all federal Liberal MPs in early August when they met to agree on the postal vote. Picture: Getty/Supplied

A key concern in the debate over same sex marriage is the uncertainty about the bill that will be put to parliament if Australians vote Yes in the postal ballot now underway.

A common refrain from readers of The Australian is this: “show us the bill.”

This is central to the argument over whether the changes will threaten religious freedom, parental rights and freedom of speech. Australians with an interest in this debate want to be able to see the letter of the law.

That is why The Australian has posted a draft bill online.

• Smartphone users can download the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 here

This is the bill circulated to all federal Liberal MPs in early August when they met to agree on the postal vote. It is not a government bill. Even so, it is the leading option for debate if the Yes vote prevails.

This private member’s bill was prepared by Western Australian Liberal Senator Dean Smith and has the support of four of his colleagues in the lower house: Warren Entsch, Trent Zimmerman, Tim Wilson and Trevor Evans.

This draft has not been introduced into parliament. For that reason it cannot be found on the Parliament House website. It was distributed to MPs and the media instead. Of course, this goes to the reason for the postal survey in the first place. The government’s position is that it will only allow a bill to be introduced into parliament if Australians say Yes in the ballot.

The key religious safeguards are in Section 47 of the draft bill. These measures are the starting point for the debate. If and when this goes to parliament, it will be up to MPs to decide whether to replace this bill or amend it with further safeguards.

So far, no side has proposed any alternative approach with the same level of detail and legal drafting set out in the Smith bill.

• Smartphone users can download the Explanatory Memorandum here

The rights of ministers of religion

A key exemption in Section 47 (1) gives a minister of religion the right to refuse to solemnise a marriage on the following grounds:
(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister’s religious body or religious organisation;
(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;
(c) the minister’s religious beliefs do not allow the minister to solemnise the marriage.

The following part makes it clear these rights do not restrict a minister of religion’s ability to refuse to solemnise a marriage on other grounds. It says: “This section does not limit the grounds on which a minister of religion may refuse to solemnise a marriage.”

Section 47A includes similar exemptions for religious marriage celebrants.

The rights of religious organisations

Section 47B extends exemptions to religious organisations. The draft bill is written in a way that applies a wide definition to these organisations, so it is not restricted to traditional churches. It says these bodies can refuse to make goods or services or facilities available for the purpose of a marriage if the refusal:
(a) conforms to the doctrines, tenets or beliefs of the religion of the body; or
(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

This is not just about hiring out church halls for wedding receptions. It covers all goods and services. The right to claim “injury to religious susceptibilities” is broad.

The bill also says this section does not limit the grounds on which a religious body may refuse to provide goods or services for the purposes of a marriage. It also covers purposes that are “reasonably incidental” to a marriage. In theory, this might include any function and not just a formal wedding reception.

Next: the postal ballot

These are the key religious exemptions already proposed. They go further than anything Labor, the Greens and some cross-benchers put forward the last time this question went to parliament. There is now a live debate on whether to amend these protections.

First, however, comes the people’s vote on whether the bill should be put to the parliament