2013

THE LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL TERRITORY

MARRIAGE EQUALITY BILL 2013

EXPLANATORY STATEMENT

Presented by
Simon Corbell MLA
Attorney General

MARRIAGE EQUALITY BILL 2013

Overview of the Bill

The Marriage Equality Bill will allow couples who cannot marry under the Commonwealth Marriage Act 1961 because of the way marriage is defined under that Act to enter into a marriage, regardless of sex, under Australian Capital Territory law.  
A person may be married under this Act only if:
•	the person is an adult; and
•	the person is not married (this will include marriage under the Commonwealth Act, marriage under the MEA as well as marriage under equivalent laws); and
•	the person cannot marry their proposed spouse under the Commonwealth Act because it is not a marriage within the meaning of that Act; and
•	the person does not have a prohibited relationship with their proposed spouse.

The bill is based on the New South Wales State Marriage Equality Bill.  The bill replicates some regulatory provisions from the Civil Unions Act 2012 to ensure operational consistency and effective implementation by the Office of Regulatory Services.  The bill also includes provisions from other jurisdictions’ marriage equality bills to ensure the ACT bill reflects the Territory’s established and comprehensive policies on relationship law by including the latest thinking around marriage equality.

The bill will repeal the Civil Unions Act and transfer provisions dealing with ending a civil union to the Domestic Relationships Act 1994.

The bill will amend the Domestic Relationships Act to extend provisions in that Act for the division of property, financial adjustment and maintenance and financial agreements to marriages under the new Territory law.

Human Rights Implications

The Marriage Equality Bill engages rights protected under the Human Rights Act 2004, particularly section 8 - the right to recognition and equality before the law.

Section 8 of the Human Rights Act 2004 (HRA) provides that
1) Everyone has the right to recognition as a person before the law.
2) Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.
3) Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.

The non-discrimination provisions in the HRA are founded on articles 2 (1) and 26 of the
International Covenant on Civil and Political Rights (‘the ICCPR”).  Article 3 of the ICCPR is also relevant in that it places an obligation on States Parties to “ensure the equal rights of men and women to the enjoyment of all civil and political rights.”

The ICCPR does not explicitly provide for the recognition of same-sex marriage, however it explicitly prohibits discrimination, in all forms. It prohibits discrimination in regard to the application of the rights listed within the treaty, and also prohibits general discrimination. The Human Rights Committee (the ‘HR Committee’) has established that, ‘discrimination’ as the term appears in the ICCPR is understood as meaning ‘any distinction, exclusion, restriction or preference which is based on any ground … which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms’. 

In Toonen v Australia, the HR Committee stated that ‘in its view, the reference to “sex” in Article 26 and Article 2 should be taken as including sexual orientation’. Therefore, the ICCPR and the right to equality at section 8 of the HRA operate to prohibit discrimination on the basis of sexual orientation. By extension the right to equality prohibits different treatment by the law, in the enjoyment of individual rights under the law, based solely on a person’s sexual orientation. This principle was recently reaffirmed by the HR Committee in Fedotova v Russia.

The Discrimination Act 1991 explicitly provides that it is unlawful to discriminate against a person on the grounds of sexuality or gender identity (section 7 (1) (b) and (c)). 

In Young v Australia the HR Committee found that a law resulting in the denial of the extension of a veteran’s pension benefit to a man whose male partner had died, solely on the basis that the members of the couple were of the same sex, and for which there was no reasonable or objective basis for making such a distinction, was discriminatory. 

In X v Colombia the HR Committee reaffirmed its position that “a distinction between same-sex partners, who are not entitled to pension benefits, and unmarried heterosexual partners, who are so entitled’, without a reasonable and objective basis or evidence of the existence of factors that might justify making such a distinction, was discriminatory and in direct contravention of article 26 of the ICCPR. 

The ACT Government considers that the right to equality and the right to protection from discrimination under section 8 of the HRA requires the removal of barriers to full marriage equality, even where the financial discriminations have been removed. Justice Lafome, of the Ontario Supreme Court, has observed, ‘any “alternative” to marriage … simply offers the insult of formal equivalency without the promise of substantive equality”. 

There is clearly an emerging trend towards the full and equal recognition of same-sex relationships. The principles on which the ACT Government works to support and progress full and equal recognition of all people before the law have been succinctly summarised by the Australian Council of Human Rights Agencies (ACHRA).  In its November 2009 communiqué, the ACHRA highlighted that the “absence of a right to civil marriage for same-sex couples ... [continues to] reinforce the different value placed on relationships between opposite-sex and same-sex couples”. ACHRA goes on to say, “the principle of equality therefore requires that any formal relationship recognition available under federal law to opposite sex couples should also be available to same-sex couples. This includes civil marriage.”

Offences
Part 7 of the bill sets out offences under the Act.  It will be an offence for a person who is not an authorised celebrant and knows he or she is not an authorised celebrant to exercise a function of an authorised celebrant under the Act.  However, it will not be an offence for a minister of religion (who is not an authorised celebrant under the Act) to perform a later religious ceremony of marriage under section 19 of the Act.
It will be an offence for a celebrant to:
•	solemnise a marriage that is not in accordance with part 2 of the Act;
•	solemnise or purport to solemnise a marriage under the Act when the celebrant has reasonable grounds to believe that there is a legal impediment to the marriage or that the marriage would be void;
•	purport to solemnise a marriage between people who have told the celebrant that they are already married to each other or who the celebrant knows, or believes on reasonable grounds, are already married to each other, unless the solemnisation occurs in accordance with section 18.  

It will be an offence for a person to go through a form or ceremony of marriage under the Act, if the person knows that the person solemnising the marriage is not authorised to solemnise it and believes on reasonable grounds that the other party to the marriage believes that the person solemnising the marriage is authorised to solemnise it.

The offences above carry a maximum penalty of 50 penalty units, imprisonment for 6 months or both.  

It will be an offence for an interpreter in relation to a ceremony of marriage under the Act to fail to give the celebrant a certificate signed by that person of the faithful performance of their services as an interpreter.  This offence carries a maximum penalty of 10 penalty units and is the only strict liability offence in the bill.

It will be an offence for a person to fail to comply with a notice given by the registrar-general under section 20 of the Act regarding an incorrect marriage certificate.  This offence carries a maximum penalty of 10 penalty units.
The bill does not include all of the offences that are listed under the New South Wales bill, for example, bigamy is not included in the bill on the basis that it is no longer an offence in the ACT and is not necessary to achieve the objectives of the bill.  

The offences and penalties proposed in the bill meet the requirements and standards for framing offences in the ACT and are consistent with the proportionality requirements expressed in the HRA.  All offences are necessary to ensure, to the greatest possible extent that marriages under the MEA are valid and not void.

CLAUSE NOTES
Part 1		Preliminary
Clause 1	Name of Act
This clause provides that the name of the Act is the Marriage Equality Act 2013.
Clause 2	Commencement
This clause provides for the commencement of the Act. The Act will commence on a day fixed by the Minister by written notice.
Clause 3	Dictionary
This clause notes that the dictionary provided at the end of this Act is part of the Act.
Clause 4	Notes
This clause specifies that a note included in this Act is explanatory and is not part of the Act.
Clause 5	Offences against Act – application of Criminal Code etc
This clause notes that other legislation applies in relations to offences against this Act.
 	Part 2		Marriages under this Act
Division 2.1 	Preliminary
Clause 6 	Application – pt 2
This clause specifies that part 2 of the Act applies to all marriages between 2 adults that are not marriages with the meaning of the Commonwealth Marriage Act 1961 solemnised, or intended to be solemnised in the ACT, and applies despite any common law rule of private international law.
Division 2.2		Eligibility 
Clause 7 	Eligibility for marriage under this Act
This clause specifies the criteria for eligibility of a person to be married under the Act. A person can be married under the Act only if —
•	the person is an adult; and
•	the person is not legally married; and
•	the person cannot marry the person’s proposed spouse under the Commonwealth Marriage Act because it is not a marriage within the meaning of that Act; and
•	the person is not in a prohibited relationship.
Division 2.3		Solemnisation
Clause 8 	Solemnisation of marriage under this Act
This clause provides that a marriage under the Act must be solemnised by an authorised celebrant.
Clause 9 	Notice of intention to marry under this Act
This clause sets out the requirements for giving written notice of intention to marry. The notice must be given to the authorised celebrant not earlier than 18 months and not later than 1 month before the day the marriage is solemnised.  The notice of intention to marry must be accompanied by a statutory declaration made by each person stating that the eligibility requirements are met.
Clause 9 also provides that, after receiving the notice of intention to marry and statutory declarations, the authorised celebrant must give each person a written notice setting out the nature and effect of marriage under the Act.
Clause 10	Evidence of identity and age
This clause sets out the evidence or proof of identity documents that must be provided in a notice of intention to marry under clause 9.   
Clause 11 	When an authorised celebrant must not solemnise marriage under this Act
This clause states that an authorised celebrant to whom a notice of intention to marry is given in relation to a marriage under this Act must not solemnise the marriage—
•	unless satisfied on reasonable grounds that the parties are the people who are getting married; and
•	if the celebrant believes on reasonable grounds that the notice of intention to marry or accompanying statutory declaration contains a false statement or defective; and
•	unless there are at least two witnesses who are, or appear to be, adults. 
Clause 12 	When and where marriage under this Act may be solemnised
This clause provides that a marriage under this Act may be solemnised on any day, at any time, at any place in the ACT.  However, a minister of religion is not required to make a place available (such as a church or other place of worship) for solemnising a marriage under the Act.
Clause 13	Form of a ceremony
This clause specifies that if a marriage under this Act is solemnised by an authorised celebrant who is a minister of  religion of a religious body, the marriage can be solemnised according to any form or ceremony recognised by the religious body.
If the authorised celebrant is not a minister of religion, each party to the marriage must say to the other, in the presence of the authorised celebrant and the witnesses, the words specified under this clause.
Clause 14	Authorised celebrant to explain nature of relationship of marriage under this Act
This clause sets out the words that the authorised celebrant must say to the parties of the marriage, with witnesses present, before the marriage is solemnised. The words explain the effect of marriage and the solemn and binding nature of the legal relationship into which the parties are voluntarily entering.
Clause 15	Marriage certificates under this Act - general
Clause 15 sets out the requirements and process for the marriage certificates that must be prepared by the authorised celebrant.  If the authorised celebrant is the registrar-general, only 1 official certificate is required.  In any other case, the authorised celebrant must prepare a certificate of marriage under this Act to give to the parties to the marriage, and two official certificates.  The celebrant, the parties to the marriage and their witnesses must sign each certificate immediately after the marriage is solemnised.  The celebrant must —
•	give one certificate to the parties, 
•	give one certificate, the notice of intention to marry and any statutory declarations made by the parties, to the registrar-general within 14 days after the solemnisation of the marriage; and
•	keep the other official certificate and deal with it in accordance with a regulation.
These requirements aim to ensure that the marriage is properly recorded and notified to the registrar-general.
Clause 16	Marriage certificates under this Act – celebrant not able to sign
This clause provides that the registrar-general may, if satisfied that a marriage under this Act was properly solemnised, prepare and sign the certificates of marriage under this Act with the changes that the registrar-general considers appropriate in specified circumstances.  A certificate prepared and signed in these circumstances will have the same effect as if it had been prepared and signed by the authorised celebrant.
Clause 17 	Interpreter at ceremony of marriage under this Act
This clause provides that if the authorised celebrant considers it appropriate, the celebrant may use an interpreter who is not a party to the marriage in relation to the ceremony to solemnise the marriage.
Clause 18	Second ceremony of marriage under this Act
This clause provides that if two people have gone through a form or ceremony of marriage under the Act and there is doubt whether the people are validly married to each other or that their marriage could be proved in a legal proceeding, the people may go through a form or ceremony of marriage under the Act as if they had not previously gone through a form or ceremony with each other.
The requirements for a second ceremony are listed under this clause.
Clause 19 	Later religious ceremony of marriage under this Act
This clause provides for 2 people who are already parties to a valid marriage with each other under this Act to go through a religious ceremony of marriage with each other.  Certain requirement must be met.
This clause notes that a minister of religion is not required to make a place available for the religious ceremony, such as a church or other place of public worship.
Clause 20	Incorrect marriage certificate under this Act
This clause allows the registrar-general to correct an incorrect marriage certificate and recall incorrect certificates.  The registrar-general may also recall a certificate given to parties to a void marriage.  The registrar-general may specify that incorrect or void certificates must be returned within 7 days or longer after notice is given.
	Part 3		Void marriages under this Act
Clause 21	Grounds on which marriage under this Act is void
This clause lists the grounds on which a marriage under this Act will be void.  These include —
•	either party did not meet the eligibility criteria under section 7 when the marriage was entered into; or
•	the marriage was solemnised other than in accordance with part 2 (Marriages under this Act); or
•	either party did not freely enter into the marriage because consent was obtained by duress or fraud, the party was mistaken about the identity of the other party or the nature of the ceremony performed; or the party was mentally incapable of understanding the nature and affect of the marriage.
However a marriage under this Act is not invalid only because a requirement to provide notice of intention to marry was not complied with or only because the celebrant was not properly authorised, if the either party believed that the person was a celebrant.
Part 4		Ending of marriages under this Act
Clause 22 	Definitions - pt 4
This clause defines the meaning of the legal criteria ‘separated’ and ‘living separately and apart’ for the purposes of part 4. The parties to the marriage can be taken to be separated even if they have only stopped living together because of the action or conduct of only one of the parties. Similarly, the parties can be taken to be living separately and apart despite the fact that they continue to live in the same home or either party provides some household services to the other.
Clause 23	Jurisdiction of Supreme Court
This clause provides that a proceeding under part 4 for a relevant order must be started in the Supreme Court and may be started by either party to a marriage under the Act or jointly by both parties to the marriage. 
Clause 24	Additional requirement for application for dissolution order
This clause imposes an additional requirement on applicants seeking a dissolution order within 2 years of the date of the marriage. The applicant must provide a certificate with the application stating that the parties to the marriage have considered reconciliation with the help of a counsellor. The certificate must be signed by the counsellor or other authorised person. 
The Supreme Court may give leave for the application to be made without a certificate if satisfied there are special circumstances.
Clause 25 	Dissolution of marriage under this Act
This clause specifies that an application for a dissolution order can only be based on the ground that the marriage has broken down irretrievably. A marriage will be found to have broken down irretrievably only if the parties to the marriage under this Act have separated and lived separately and apart for a continuous period of at least 12 months immediately before the application is made.
The Supreme Court cannot make a dissolution order if the Court is satisfied that there is a reasonable likelihood that the parties to the marriage will resume living together.
Clause 26 	Effect of resuming living together
This clause specifies the method by which periods of separation or of living together are calculated. The clause establishes that if a period of the parties to the marriage living separately and apart is interrupted by one period of 3 months or less where the parties resumed living together, the period of living separately and apart is taken to be continuous period. However the period of living together is not counted as part of the period of living separately and apart. The Supreme Court will not count any period of living together if in the opinion of the Court that period was not substantial.
Clause 27	Nullity of marriage under this Act
This clause states that an application for a decree of nullity of a marriage under the Act can only be based on the ground the marriage is void.
Clause 28 	Court not to make dissolution order if application for decree of nullity before it
This clause sets out that the Supreme Court must not make a dissolution order in relation to a marriage which is also the subject of an application for a decree of nullity.
Clause 29 	When dissolution order takes effect
This clause states that a dissolution order is effective 1 month after the order is made, or on the date of whichever is later -   one month after the final decision of an appeal about the dissolution order, or the date the dissolution order would have taken effect if no appeal had been started.
Also, a dissolution order does not take effect if either party to the marriage dies before it would otherwise take effect.
Clause 30 	Rescission of dissolution order if parties reconcile
This clause states that parties who have applied for and been granted dissolution order can apply to the Supreme Court to have the order rescinded on the ground that they have reconciled if the order has not taken effect.
Clause 31	Rescission of dissolution order on ground of miscarriage of justice
This clause states that the Supreme Court may, on the application of a party to the proceeding or the Attorney-General, rescind a dissolution order which has not taken effect if the Court is satisfied that there has been a miscarriage of justice because of fraud, perjury, suppression of evidence or anything else. The Court can also make an order that the matter be reheard.
Clause 32	Remarriage under this Act
If a dissolution order has taken effect, a party the dissolved marriage can marry again under the Act.
Clause 33	Ending of marriage under this Act on later other marriage
Clause 33 provides that a marriage under this Act ends if either of the parties to the marriage later marries someone else under a Commonwealth law (including a marriage in another jurisdiction that is recognised as valid by the Commonwealth) or a law of another jurisdiction that substantially corresponds to the Act.  This provision ensures that a person cannot be validly married to more than one person at the same time.
Part 5 		Authorised celebrants
Division 5.1 	Registrar-general
Clause 34 	Authorisation of registrar-general
This clause states that the registrar-general is authorised to solemnise a marriage under this Act.
Division 5.2 	Registered celebrants
Clause 35 	Registration of celebrant
This clause sets out the steps a person must follow if they wish to be registered as a celebrant under the Act. A person applying for registration as a celebrant must be an adult with the necessary knowledge, skills and experience to exercise the function of a registered celebrant, and be a suitable person.
In determining whether a person is suitable to be registered as a celebrant, the registrar‑general must take into account any criminal conviction or finding of guilt for an offence punishable by imprisonment for 1 year or longer, whether the person has been convicted or found guilty of an offence against the Act or the Births, Deaths and Marriages Registration Act 1997, whether the person has ever been bankrupt or personally insolvent and whether the person has a physical or mental incapacity which may affect the person’s ability to perform the functions required of a registered celebrant.  The registrar-general may take into account anything else he or she considers relevant.
Clause 36 	Register of registered celebrants
This clause requires the register-general to keep a register of people registered as registered celebrants under this Act. The register may be kept in any form that the registrar-general decides.  Clause 36 sets out the information that must be included on the register and requires that the register must be available for public inspection at reasonable times. Clause 36 also provides that the personal information of the registered celebrant must only be disclosed with his or her consent.
Clause 37 	Obligations of registered celebrants
This clause requires a registered celebrant to tell the registrar-general in writing within 30 days about any change to their details as included on the register or any event that might mean that the person is not longer a suitable person as defined under clause 35.
Clause 38 	Cancellation of registration of celebrant
This clause states that the registrar-general may cancel a person’s registration as a registered celebrant if the registrar-general is satisfied that the person does not meet, or no longer meets, the registration criteria under clause 35.
Clause 39 	Registered celebrant who is minister of religion – additional conditions for solemnisation of marriage under this Act
This clause provides that a registered celebrant who is a minister of religion may impose certain additional requirements before agreeing to solemnise a marriage under the Act.
	Part 6 		Recognition of certain marriages solemnised in other jurisdictions
Clause 40	 Certain marriages under corresponding laws
This clause states that a regulation can provide that a relationship under the law of another jurisdiction is a marriage under this Act.
The regulation must not provide that a relationship under the law of another jurisdiction is a marriage under this Act for territory law unless, under the corresponding law, the relationship—
•	must be between two adults; and
•	must be entered consensually; and
•	must not be entered into by people who are in a prohibited relationship with each other; and
•	must not be entered into by people who are legally married; and
•	either—
o	is not a marriage within the meaning of the Commonwealth Marriage Act 1961; or
o	is not a marriage in another jurisdiction that is recognised by the Commonwealth as a valid marriage.
	Part 7 		Offences
Clause 41	 Offences – solemnising marriage under this Act
This clause provides that it is an offence under the Act for a person who is not an authorised celebrant, and knows they are not an authorised celebrant, to solemnise a marriage. An authorised celebrant commits an offence if the celebrant solemnises a marriage under the Act other than in accordance with part 2 of the Act. An authorised celebrant commits an offence if the celebrant solemnises or purports to solemnise a marriage while having reasonable grounds to believe there is legal impediment to the marriage or the marriage would be void.  
Clause 41 notes that a person does not commit an offence because the person performed a religious ceremony of marriage under the Act.
An authorised celebrant commits an offence if the celebrant purports to solemnise a marriage between two people who have told the celebrant that they are already married to each other or whom the celebrant knows, or believes on reasonable grounds, are already married to each other.   
Under clause 41, a person commits an offence if the person goes through a form or ceremony under the Act with someone else and knows that the person solemnising the marriage is not authorised to solemnise it, and believes on reasonable grounds that the other party to the marriage believes that the person solemnising the marriage is authorised to solemnise it.
Clause 42 	Offence - interpreter at ceremony of marriage under this Act
This clause makes it a strict liability offence if an interpreter fails to provide an authorised celebrant with a signed certificate of faithful performance of the person’s services as interpreter.
Clause 43 	Offence – incorrect marriage certificate
Under Clause 43 it is an offence to fail to comply with a notice given to a person by the registrar-general under section 20. The registrar-general would give a notice under section 20 requiring a person to give a certificate to the registrar-general if satisfied that a detail on the certificate was incorrect, or that the purported marriage is void.
Part 8		Notification and review of decisions
Clause 44 	Meaning of reviewable decision - pt 8
This clause defines reviewable decision for part 8.
Clause 45 	Reviewable decision notices
This clause provides that if the registrar-general makes a reviewable decision the registrar-general must give a reviewable decision notice to each entity mentioned in schedule 1, column 4. 
Clause 46 	Applications for review
This clause sets out who may apply to the ACAT for review of a reviewable decision.
Part 9 		Miscellaneous
Clause 47 	Evidentiary certificates
This clause provides that the registrar-general may give a signed certificate stating that on a stated date or during a stated period, a person was or was not a registered celebrant.
Clause 48 	Determination of fees
This clause provides that the Minister may determine fees for the Act in a disallowable instrument.
Clause 49 	Approved forms
This clause specifies that the registrar-general may approve forms for the Act.
Clause 50 	Regulation-making power
This clause allows the Executive to make regulations for the Act in relation to replacing certificates of marriage, amendments of the register, record keeping and other functions of the registrar-general, and a complaints resolution procedure regarding solemnisation of marriage.
	Part 10	Repeals and consequential amendments
Clause 51 	Legislation repealed
This clause repeals the Civil Unions Act 2012 and all legislative instruments under that Act.
Clause 52	Legislation amended – sch 2
This clause amends the legislation listed in schedule 2.
	Part 20	Transitional
Clause 100 	Existing civil union celebrants
This clause states that a celebrant under the Civil Unions Act 2012 immediately before the day the Act commences is taken to be a registered celebrant under the Act.
Clause 101	Transitional Regulations
This clause allows regulations to prescribe transitional matters necessary or convenient to be prescribed because of the enactment of the Act.
Clause 102 	Expiry – pt 20
This clause specifies that part 20 expires 1 year after the day the section commences.
Schedule 1 	Reviewable decisions
This schedule sets out who make seek a review of what type of decision made under the Act.  The decisions relate to registration of celebrants and may be made by a person whose application for registration has been refused or a person whose registration is cancelled.
Schedule 2	 Consequential amendments
This schedule makes consequential amendments to include a marriage under the Act as a recognised relationship in the following Acts and Regulations:
-	Adoption Regulation 1993
-	Births, Deaths and Marriages Registration Act 1997
-	Births, Deaths and Marriages Registration Regulation 1998
-	Civil Law (Property) Act 2006
-	Civil Law (Wrongs) Act 2002
-	Corrections Management Act 2007
-	Crimes Act 1900
-	Dangerous Goods (Road Transport) Act 2009
-	Discrimination Act 1991
-	Domestic Relationships Act 1994
-	Domestic Violence and Protection Orders Act 2008
-	Duties Act 1999
-	Evidence Act 2011
-	Evidence (Miscellaneous Provisions) Act 1991
-	Guardianship and Management of Property Act 1991
-	Land Titles Act 1925
-	Legislation Act 2001
-	Married Persons Property Act 1986
-	Parentage Act 2004
-	Powers of Attorney Act 2006
-	Retirement Villages Act 2012
-	Road Transport (Mass, Dimensions and Loading) Act 2009
-	Sale of Motor Vehicles Act 1977
-	Wills Act 1968
-	Witness Protection Act 1996

Dictionary