Recommendation 4:

Re: Term of Reference

(a) the nature and effect of proposed exemptions for ministers of religion, marriage celebrants and religious bodies and organisations, the extent to which those exemptions prevent encroachment upon religious freedoms, and the Commonwealth Government’s justification for the proposed exemptions

Recommendation 4:  

That Section 47A as proposed in the exposure draft not be enacted.
 
Why is this an issue?

The Australia public would have no transparent way of knowing, who of the 99% (5) of celebrants authorised under the civil law to marry couples in Australia, are allowed to apply “religious or conscientious” objections.
 
The Australian public have the right to know the principles an authorised celebrant will apply in this sensitive matter. Some LGBITQ couples who are religious may still wish to choose an independent civil celebrant so their ceremony may be inclusive; and some heterosexual couples, who support marriage equality or who have family and friends who are LGBTIQ, may wish to engage a independent civil celebrant who does not have a “religious of conscientious objection” to same sex marriage.
 
Rationale: 

  1. As provided in the Coalition of Celebrant Associations (CoCA) Inc.’s submission to this Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill.

  2. Most Australians expect our government to uphold Australian civil law over religious law or cultural practices that may apply in other countries.

  3. The best civil laws are clear, in plain English and do not discriminate on the basis of religious law or personal bias.
  4. With regard to Section 116 of the Constitution (6) it is noted that: 

    a. ​​the Marriage Act respects religious freedom allowing “free exercise of any religion”  by allowing couples to be validly married under Australian law at the same time as having a marriage according to religious law

    b. authorisations of Subdivision A and of independent religious celebrants under Subdivision C appear to be in contradiction of Section 116 of the Constitution re: “ .. no religious test shall be required as a qualification for any office or public trust under the Commonwealth”  

    c. allowing “religious or conscientious grounds” for marriage celebrants who offer civil marriage services is 
    i. not upholding a separation of church and state functions, and
    ii. giving religious law or beliefs greater power or status of any religion than civil law.

    d. by authorising employed and independent people to conduct civil marriage ceremonies is not “imposing any religious observance”. 

    However to allow any celebrant  conducting civil marriage services to impose their specific “religious or conscientious” belief would be imposing these beliefs upon those couples applying for civil marriage services.

    e. obviously Section 116 is not observed in numerous Commonwealth and State/ Territory laws, including the Marriage Act with respect to “prohibiting the free exercise of any religion”.  For example, where religious law may allow the marriage of children under the age of 16 years.

  5. Subdivision C civil marriage celebrants are expected to perform a professional role  of “public trust under the Commonwealth”. 

    If a person cannot uphold the civil law definition of marriage and perform this role in an unbiased way, then they would not meet the criteria under Section 39 of being Fit and Proper Person for that role, and should seek some other public or religious service

  6. The effect of Section 47A is illogical, non-transparent, unfair and biased in that it would allow:
    1. 99% of all authorised marriage celebrants the ability to discriminate on “religious or conscientious grounds”, and 

    2. 96.5% of those authorised to provide civil marriage services to discriminate on “religious or conscientious grounds”
                in amending the Act to end discrimination against same sex couples.

​7. The effect of Section 47A would be to reduce access geographically to ‘guaranteed” civil marriage services.  There are 293 Subdivision B - State and Territory Officers authorised to conduct civil marriage in the whole of Australia (7).  

In fact there are no such public servants available in the Australian Capital Territory.  The geographic distribution of these public servants means in effect only one such marriage officer within large areas or minimal numbers in areas with a greater population density.

8. The effect of Section 47A would be to reduce access by time / day of the year and location, and/or impose a financial barrier for couples wanting to marry in evenings, weekends, and public holidays.

Most public servants are restricted in terms of working hours, and venues for conducting civil marriages. Either the service would not be available due to the costs (penalty rates, health and safety requirements, insurance cover etc.) or if available the fees charged would be far in excess of the average couples currently seeking the services of State and Territory offices. Cost being one of the main reasons couples seek these basic civil marriage services.

9. The effect of Section 47A would be to reduce access to the ability of the couple to personalise their marriage ceremony to meet their ethical values, to express their love and commitment to one another in language and symbols that carry meaning for them and that are tailored to their own and families specific circumstances.

Commonwealth Subdivision C Civil Marriage Celebrants are required to have training in marriage law and in the design and delivery of unique, personal meaningful ceremonies.

This unique role is why 75% (8) of Australian couples now seek civil ceremonies. 

10. Independent civil ceremonies reduce religious family and cultural tensions because in individually tailored ceremonies, differing family and cultural backgrounds of the parties to the marriage can be acknowledged, respected and celebrated whilst maintaining the status of Australian civil law.

Removing this as a “guaranteed” service to LGBTIQ couples and their families is counter-productive to the purpose of reducing discrimination against these couples in the Marriage Act, and consequently in Australian society.

11. State and Territory officers (Subdivision B) provide civil ceremonies, as do Subdivision C civil marriage celebrants.

The Act in defining how authorised celebrants perform their duties requires Subdivision B and Subdivision C marriage celebrants to apply the legislation in the same way. See Division 2—Marriages by authorised celebrants, Part VII—Offences and Part IX—Miscellaneous Sections 111 to 114.

Therefore if Subdivision B officers providing civil marriage are being required to uphold civil law, then the same principle needs to apply to Subdivision C independent professional civil marriage celebrants.