Beyond the plebiscite – a legal studies update

By Basil Capizzi - Legal Studies teacher and Assistant Mathematics Coordinator at St Patrick's College, Strathfield.

Following the postal plebiscite result, parliament has implemented some dramatic legal changes, with implications for students of Legal Studies. To this end, this article summarises the recently enacted amendments to marriage contained in the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) – hereafter the amending Act.

For HSC students investigating ‘contemporary issues concerning family law’, the inability to marry was an obvious and major difference in the legal recognition of same-sex and heterosexual relationships. Accordingly, the first part of this article details the nature of the legislative changes that will impact this family option. Additionally, discussion about the conflicting nature of rights highlighted by this amending Act, and the legal basis for the plebiscite, will extend the relevance of these amendments beyond the Year 12 course and into some of the fundamental concepts discussed in Year 11.

Impact on family law – ‘recognition of same-sex relationships’

The most significant amendment obviously is the alteration of s 5 of the Marriage Act 1961 (Cth) – hereafter the Marriage Act – to replace the words ‘a man and a woman’ with ‘2 people’. This redefines marriage as ‘a union of 2 people, to the exclusion of all others, voluntarily entered into for life’ (emphasis added). In terms of the Year 12 Legal Studies Family option, this has fundamentally altered the content of the statutory definition of marriage, and the parallels between the statutory definition and the common law origins taken from Lord Penzance’s comment in Hyde v Hyde and Woodmansee (1866) have diminished.

The very title of the amending Act alludes to more wide ranging amendments. Significant concessions were included, providing clarification about the application of various religious rights and existing exemptions from some forms of anti-discrimination law afforded to religious organisations. Section 47 of the amending Act guarantees that ministers of religion may refuse to conduct a same-sex marriage on certain grounds. Moreover, and perhaps surprisingly, this exemption also applies to religious marriage celebrants (s 47A), and therefore allows the possibility for current ‘civil’ marriage celebrants to refuse to conduct a same sex marriage on religious grounds. In the Revised Explanatory Memorandum (2017, p. 10), the point is made that ministers of religion already enjoyed the freedom to refuse to conduct (heterosexual) marriages on religious grounds. Furthermore, while it goes on to state that the Marriage Act does not require a marriage celebrant to celebrate any marriage, the potential controversy here is that it would appear an express right to refuse is a significant step beyond the status quo. Later consideration will be given to whether such a right might have possibly been extended from s 116 of the Constitution in any case.

A summary of the major amendments to the Marriage Actfrom Schedule 1 of the amending Act follows below.

  • Section 2A: Inserts an objects clause into the Marriage Act reflecting the altered definition of marriage between 2 people, and protecting religious freedoms regarding marriage.
  • Section 5(1): Replaces the words ‘man and woman’ with ‘2 people’. As a result, it permits same-sex marriage, as well as marriages involving a person, or people, of undefined gender.

Introduces the category of ‘religious marriage celebrant’ as distinct from a ‘civil’ or non-religious marriage celebrant – this distinction allows for an extension to the religious exemption previously only applicable to ministers of religion.

  • Sections 39DA-DE: Clarify the definition of a ‘religious marriage celebrant’, and outline how this classification is conferred. The transitional provisions permit classification as a ‘religious marriage celebrant’ for:
    • ministers of religion from non-recognised denominations
    • ministers of religion of recognised denominations who wish to solemnise marriages outside the rituals and observances of their religion
    • existing ‘civil’ marriage celebrants, who wish to become ‘religious marriage celebrants’ on the basis of their religious beliefs.

Classification under the first 2 categories continues to be available to eligible individuals seeking to become ‘religious marriage celebrants’ after 9 December 2017.

  • Section 47: Makes it clear that a minister of religion may refuse to solemnise a marriage or impose further conditions on the solemnisation than required in the Act (such as longer notice periods). Particular reasons for refusal include: not conforming to the beliefs of the religious body or organisation; avoiding injury to adherents of that religion; and the minister’s personal religious beliefs. It should be noted that the reasons listed are expressly stated as not being intended to limit the grounds of refusal.
  • Section 47A: Extends the ability to refuse to solemnise a marriage beyond a minister of religion to a ‘religious marriage celebrant’. Hence, given the abovementioned amendments involving ‘religious marriage celebrants’, this exemption can apply to existing ‘civil’ marriage celebrants.
  • Section 47B: This section allows any body established for religious purposes (as defined in the Sex Discrimination Act 1984 (Cth) – hereafter the Sex Discrimination Act) to refuse to provide goods, services or facilities for solemnising a marriage, if that refusal is in keeping with the beliefs of the religion or might injure the religious susceptibilities of adherents to that religion. Also included is any purpose reasonably incidental to that solemnisation. Again, the section does not seek to limit the grounds for such a refusal. Furthermore, the term ‘reasonably incidental’ is taken to mean intrinsic to, or directly associated with, the solemnisation of a marriage. The Revised Explanatory Memorandum (2017, p. 12) clarifies that this exemption would be intended to extend to things like reception events.
  • Section 81(2): Extends the same religious exemption to an authorised celebrant (including a chaplain or an officer authorised to solemnise marriages) when conducting marriages of members of the Australian Defence Force overseas.

One of the most immediate changes the amending Act has produced is to give legal recognition to same-sex marriages legitimately conducted outside Australia. Item 70(2) of the amending Act provides that marriages conducted in accordance with Part VA of the Marriage Act, prior to that part commencing, will be recognised as valid from the date of commencement (9 December 2017). Furthermore, item 71 of the amending Act provides legal recognition for situations where 2 people (marrying other than as a man and a woman) married in Australia in the presence of foreign diplomatic or consular officials from a country where such a marriage would have been legally recognised.

In schedules 1 and 2, additional amendments are made to the Sex Discrimination Act to prevent discrimination on the basis of gender in issues relating to marriage. Later schedules contain a number of consequential amendments to various Acts, including the Family Law Act 1975 (Cth). These are necessary to give effect to the Marriage Act changes, particularly where other legislation made specific gendered reference to the parties to a marriage.

Competing rights

There is debate in the second reading speeches regarding the fact that the amending Act evidenced significant compromise when compared to the aims of various interested parties. If we were to simplify for the purpose of discussion with students, we could point out that those groups not in favour of marriage reform were offered clear religious exemptions to performing same-sex marriages. Thus, while ultimately unsuccessful in their attempts to prevent this reform, some of the minority concerns were addressed in the legislation. Conversely, while those parties pushing for the reform were able to achieve their main goal, the amending Act does not confer an unfettered right to same-sex marriage in any chosen forum. It is open to suggest that the law is an example of utilitarianism – trying to best reflect the views of the majority (on the basis of the plebiscite) without, so far as possible, ignoring the minority.

The conflicting nature of rights is an area ripe for classroom debate. The individual right to marry has been widened, but guaranteed religious freedoms have also been expanded. The competing interests advanced by these amendments demonstrate the tension that can arise in society when rights conflict. It is a great reminder to our students that rights do not always sit side-by-side as some sort of shield or protection – which is sometimes how it appears when students discuss the Universal Declaration of Human Rights. At various times, rights clash, require compromise, are ignored, or coexist uncomfortably.

Teachers wishing to examine in detail the nature of the conflicting rights in the amending Act are advised to read the Statement of Compatibility with Human Rights in the Revised Explanatory Memorandum. This component outlines the legislative view on how the legal changes comply with internationally recognised human rights documents, such as the International Covenant on Civil and Political Rights (ICCPR). In terms of balancing competing rights, the drafters of the amending Act feel it is ‘compatible with human rights because it advances the protection of human rights, particularly the rights to equality and non-discrimination, while protecting the right to freedom of thought, conscience and religion or belief. To the extent that it may also limit these rights, those limitations are reasonable, necessary and proportionate’ (Revised Explanatory Memorandum, 2017, p. 55).

What about existing domestic rights? Are the amendments (particularly s 47A) introducing novel rights? Or were these religious freedoms already open to argument on the basis of the Constitutional protection in s 116? This section states: ‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth’ (emphasis added). An interesting legal question then arises as to whether the judicial interpretation of this section may include situations such as those contemplated in sections 47, 47A and 47B.

As it happens, s 116 of the Constitution has not been the subject of overly significant judicial examination. Recent commentators have suggested that while the text of the section might be interpreted widely so as to support a general right to the free practice of religion, the current interpretation really focuses more on what the Australian Government can’t do in relation to religion (‘The Commonwealth shall not…’). However, Beck (2016) suggests that the previous narrow approach to Constitutional interpretation is no longer the way in which s 116 might be interpreted; the more likely approach is to basically give the words their widest general meaning. Also, Babie (2016) argues judicial activism would be needed in a re-examination of the prevailing understanding of the section to provide this protection or rights, rather than the current situation where courts protect religious rights in less satisfactory ways without recourse to the Constitution.

Hence, it would appear that the Constitutional protection, based on current judicial interpretation, is not so strong, though there might be potential for this to change in the future. It could be opportune to convey to students that this particular Constitutional right, as currently understood, is not a general freedom of religion. Rather, it might be better characterised as a freedom from the imposition of religion by the Australian Government.

What then can we conclude in relation to the competition between the rights contained in the marriage amendments? The religious exemptions certainly constitute a slight strengthening of previously available rights and represent a minor compromise in relation to the newly-broadened right to marriage.

Legal standing of a plebiscite

An interesting question that could be posed to students studying the Constitution in the Year 11 course is where does the Australian Government obtain the legal authority to hold a plebiscite? Of course, if an adequate legal basis for any law is not successfully identified in a High Court challenge, the law (in this case the plebiscite) will be declared as ‘beyond power’ and invalid.

Students might initially assume that the plebiscite could find legal basis in the referendum power. Hence, this provides teachers with an opportunity to discuss the differences between the non-binding plebiscite and a referendum that alters the Constitution itself. Given that the Australian Government must find authority for the plebiscite elsewhere in the Constitution, this allows students to explore the text and suggest some alternatives. One of the enumerated powers could be suggested as a logical head, and specifically for this particular plebiscite, the marriage power in s 51 (xxi). However, Kildea (2016) argues that there might be some preferable authority in other subsections, such as the executive power to undertake inquiries or the executive ‘nationhood’ power.

Regardless of which authority the Australian Government sought to characterise the law under, their legislative attempt to achieve a plebiscite – Plebiscite (Same-Sex Marriage) Bill 2016 (Cth) – failed to progress beyond the second reading in the Senate on 7 November 2016. This could be an opportune moment for teachers to introduce students to Hansard (or to revisit it). Have students examine the text of the debate in the Senate, and remind them of the purpose of our bicameral system of parliament. Arguably, in this case, the Senate was reflecting the views of society in rejecting the bill, as some polls indicated that a majority of Australians were not in favour of a plebiscite at that time (Karp, 2016).

Despite this failure, the Australian Government eventually conducted the plebiscite through the Australian Bureau of Statistics (ABS). Kildea (2017) explains that the Australian Electoral Commission (AEC) was the expected choice, despite constitutional issues around that potential engagement. (He also notes that the use of the ABS, interestingly, was not without different legitimacy questions.) In any case, with 61.6% of respondents voting in favour of legalising same-sex marriage, the plebiscite result was the final catalyst for the amending Act.

Final thoughts

At the time of writing, the very first newly conducted same-sex marriages have been celebrated. Thus the amending Act has had an immediate impact on the landscape of family law. The extent to which the religious exemptions now provided for in the Marriage Act will be taken or challenged is yet to be seen. It is obvious that these legal changes provide much material for teachers of Legal Studies. Teachers could also examine the events leading up to these amendments and highlight the importance of non-legal responses, including the media and lobby groups, in achieving law reform.

References and further reading

Australian Constitution

Babie, P 2016, ‘National security and the free exercise guarantee of section 116: time for a judicial interpretative update’, Federal Law Review, vol. 45, no. 3, pp. 351-381.

Beck, L 2016, ‘The case against improper purpose as the touchstone for invalidity under section 116 of the Australian Constitution’, Federal Law Review, vol. 44, no.3, pp. 505-529.

Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130

Karp, P 2016, ‘Marriage equality plebiscite not as popular as Turnbull claims, poll shows’, The Guardian, 21 July, accessed 13 January 2018.

Kildea, P 2016, ‘The constitutional and regulatory dimensions of plebiscites in Australia’, Public Law Review, vol. 27, pp. 290-310.

Kildea, P 2017, ‘Using the ABS to conduct a same-sex marriage poll is legally shaky and lacks legitimacy’, UNSW Law, 11 August, accessed 14 January 2018.

Marriage Act 1961 (Cth)

Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)

Parliament of Australia 2018, Marriage Amendment (Definition and Religious Freedoms) Bill 2017, Canberra, accessed 13 January 2018.

Plebiscite (Same-Sex Marriage) Bill 2016 (Cth)

Revised Explanatory Memorandum, Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)

Sex Discrimination Act 1984 (Cth)

How to cite this article

Capizzi, B. 2018, ‘Legal update – beyond the plebiscite’, Scan 37(1)

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