On the 15th of November, the Australian Bureau of Statistics revealed that 61.6 per cent of the country had voted in favour of same-sex marriages in Australia.

Although this led to celebrations all around the country and excitement for the potential historical change to the national marriage act, bureaucratically speaking, the vote left Australia no closer to legalising same-sex marriage. The decision will still ultimately come down to the Australian politicians.

At the time of the announcement, Prime Minister Malcolm Turnbull made a promise to honour the citizens vote and to commit to putting it into play this year, before Christmas. Although there is an overwhelming support behind this statement, there is a lot to consider in terms of the minute details of turning a “yes” into a workable law.

What are the potential changes to the marriage act?

The debate has now moved on from the “yes or no” to the exceptions surrounding it, particularly when it comes to religious freedom, while simultaneously maintaining current national and state discrimination laws.

The current bill drafted by Dean Smith, that is the most likely to get passed, aims to replace the definition of marriage in Australian law from “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” to “the union of two people to the exclusion of all others, voluntarily entered into for life”. The bill further aims to:

  • Create a legal framework that allows civil celebrants and ministers of religion to solemnise marriage based on its definition as “the union of two people
  • Protect religious organisations, ministers and celebrants from participating in same-sex marriage celebrations if it goes against their religious beliefs.
  • Protects businesses directly linked to the church or that were set up for religious purposes to refuse to provide goods or services for a same-sex couple’s wedding.

Ultimately, the proposed bill aims to provide equal access to marriage in Australia, while protecting religious freedom in relation to marriage.

Although this bill is the most widely supported, there has been a rival bill presented and some amendments requested by Liberal senator James Paterson and some “No” voters. Some examples of the requested amendments are;

  • Extending the exemptions to anyone who has a conscientious objection to same-sex marriage, religious or otherwise, allowing them to refuse to provide goods or services for the purpose of a same-sex marriage
  • Keep the definition of marriage as “a man and a woman…”
  • Relegate same-sex marriage into a separate clause and create a separate definition

Some of these amendments have been met with concerns based on their ability to pull back decades of anti-discrimination laws put in place in Australia, ultimately providing a license to discriminate rather than just providing religious freedom. It is therefore unlikely that any of these amendments will be implemented.

When can we expect to see same-sex weddings in Australia?

In Australia, a law is created through the creation of a bill. This bill is then debated in the house of representatives and the senate, and once they reach a unanimous decision, it is passed on to the governor-general to sign it into the Australian law.

The bill drafted by senator Dean Smith has passed through the senate on the 29th of November without amendments, with 43 people voting yes and 12 voting no. The bill will be taken to the House of Representatives in the coming week to be debated, and if it is passed it will be handed to the governor general. If any amendments are made, however, it will return to the senate to be considered once again. The vast majority of Labor and liberal MPs are in favour of the bill, and it is predicted to pass through houses before Christmas. However, If the bill is not passed by the 7th of December, or sitting is not extended, then it will have to wait until the 5th of February when the parliament returns, delaying the creation of the law dramatically.

Once the governor general has received the bill and signed it, it must be put into effect within 28 days, meaning if the bill is passed before Christmas as Mr Turnbull has promised, same-sex marriage will be legal in Australia by mid-January. However, the same 30-day period currently in force for gaining a marriage license in Australia will apply, placing the first possible same-sex marriage in Australia in early February.

If you have any queries about the changes to the marriage act, please don’t hesitate to contact the legal experts at Owen Hodge Lawyers at 1800 770 780.