I am presenting a paper on protection of free speech and connections with religious freedom at the Australasian Christian Legal Convention in Brisbane today. A full copy of the paper can be downloaded here: protection-of-religious-free-speech-in-australia . It is a fairly lengthy document but I hope it may be a useful resource for lawyers interested in protection of free speech on religious matters in Australia.
The debates over redefining marriage in Australia have acquired in recent years some high profile “myths” or, to use the modern parlance, “memes”, which are regularly repeated. One of the most enduring is that the battle for same sex marriage is impeded by a supposedly shocking set of amendments to the Marriage Act 1961 which were made by conservative Prime Minister John Howard in 2004.
To take some recent quotes which illustrate the points:
“It was the Howard Government that in 2004 changed the Marriage Act to specifically refer to marriage being “the union of a man and a woman,” locking out any possibility to include gay couples in the definition without a change in the law.”
“[T[his weekend marks the twelfth anniversary of John Howard’s amendments to the Australian Marriage Act. You know, those amendments that didn’t require a plebiscite? Those amendments that made it a legal requirement for celebrants to remind champagne-tipsy wedding parties around the country that marriage was between a man and a woman at the exclusion of all others?” 
There are two “myths” being presented here. One is obviously wrong but is somehow regularly repeated: that Prime Minister Howard somehow effected a massive change to the nature of marriage in Australia which now only needs to be “unwound” to allow same sex marriage. (And in recent days, the point is sometimes added that this massive change didn’t require a plebiscite, so the currently proposed change also shouldn’t need such.) The second myth is perhaps a more technical and understandable error, but it is also an error and needs to be corrected wherever it appears.
Myth 1: the 2004 amendments redefined marriage
The first error is to suggest that the amendments made a fundamental change in the nature of marriage law. They did nothing of the sort. The Marriage Amendment Act 2004 (No 26 of 2004) was a short piece of legislation, which did three simple things:
- it added a formal definition of the word “marriage” to s 5 of the Act, where other technical definitions are set out;
- it made it clear that in the provisions in s 88B allowing recognition of overseas marriages, the traditional definition of marriage inserted into s 5 was applicable; and, for greater certainty
- it added s 88EA to the Part of the Act dealing with overseas marriages to make it absolutely clear that same sex “unions” would not be recognized as marriages.
These changes did not fundamentally alter the nature of marriage in Australia. The Second Reading Speech when introducing the Bill said that the aim was to “reinforce the basis of this fundamental institution”,  and did not signal any attempt to “redefine” it. Indeed, the speech pointed out that, while the Act contained no formal definition of marriage in the “definitions” provision, it did incidentally spell out the nature of marriage in another provision (as we will see below):
It does contain a statement of the legal understanding of marriage in the words that some marriage celebrants must say in solemnising a marriage that: `Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’
The Government believes that this is the understanding of marriage held by the vast majority of Australians and they should form the formal definition of marriage in the Marriage Act.
This Bill will achieve that result.
It could also be noted that the “classic” definition of marriage had also been inserted by Parliament into s 43 of the Family Law Act 1975 when that was enacted. Despite that Act allowing for “no fault” divorce, the Act stressed that it was not intended the change the commitment that parties were entering into when they were married. Section 43(1)(a) still provides:
Principles to be applied by courts
(1) The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life; (emphasis added)
Brennan J in the High Court decision of R v L (1991) 174 CLR 379 at 391 had noted, well before 2004:
In Hyde v. Hyde and Woodmansee Lord Penzance defined marriage as “the voluntary union for life of one man and one woman, to the exclusion of all others” and that definition has been followed in this country and by this Court. It is the definition adopted by the Family Law Act, s.43(a) of which requires a court exercising jurisdiction under that Act to have regard to “the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life”. Marriage is an institution which not only creates the status of husband and wife but also, without further or specific agreement, creates certain mutual rights and obligations owed to and by the respective spouses. (emphasis added)
It is also worth noting that in 2004 the so-called Howard amendments received bi-partisan support from both the Liberal/National Coalition Government, and from the Labour Opposition. They were not, and were not seen as, controversial. They simply clarified that the meaning of marriage that had been in force at Federation, as understood in the Hyde case, was the meaning that had been intended all along. They also made it clear that Australia would not recognize by a “back door” (through overseas marriages) a change to marriage that it had not authorized locally.
Myth 2: Celebrants reading out the words
The second myth set forth above is that it was this 2004 law that added a requirement for celebrants to say these words in celebrating marriages. This is just plain wrong. The 2004 Act did not amend what civil celebrants have to say. That had been there in the legislation in s 46 since 1961 (and is still there). The provision, as initially enacted, read as follows:
46.(1.) Subject to the next succeeding sub-section, before a marriage is solemnized by or in the presence of an authorized marriage celebrant, not being a minister of religion of a recognized denomination, the authorized celebrant shall say to the parties, in the presence of the witnesses, the words-
“I am duly authorized by law to solemnize marriages according to law.
” Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.
” Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”,
or words to that effect. (emphasis added)
Note, however, that this provision only applies to marriage celebrants who are not ministers of religion. The reason for this seems to be that it was assumed that a “recognized denomination” approved by the Governor-General under s 26 of the Act, to allow its ministers to celebrate marriages, would have its own way of stating the nature of marriage (which would have been checked administratively before the authorization was given.) Hence this extra requirement would mainly apply to civil registry officers, when the Act was first passed. Later the Act was seen to authorize a wide range of other “civil celebrants”, but again s 46 would apply to those celebrants, to ensure that Australians were given a clear picture of the “solemn and binding” nature of the relationship they were entering.
It is amazing how this misunderstanding, that the 2004 amendments somehow led to civil celebrants having to spell out the nature of marriage, keeps on being perpetuated. I have even had it related to me by a senior retired legal figure. I speculated in my conversation with the gentleman that what had happened was that in more recent years he was going to more civil weddings rather than church weddings. As noted, churches have never been required to say this as part of their ceremonies. Perhaps as less people celebrate weddings in churches, more guests have noticed the s 46 requirement.
The debate over whether same sex marriage should be introduced, and how the decision should be made, will no doubt continue for some time. But the participants should get their facts straight, and on the effect of the amendments made in 2004, not make claims that are clearly wrong.
 “Former Prime Minister John Howard says politicians “in fear” of marriage equality” http://www.news.com.au/lifestyle/gay-marriage/former-prime-minister-john-howard-says-politicians-in-fear-of-marriage-equality/news-story/d000c28a0d79c6e443353ef1ee73283b (Mar 2, 2016).
 “12 years later: Is this the last anniversary of Howard’s marriage amendments?” (11 August 2016)
 Senate Hansard, 12 Aug 2004, at p 26503.
 (1866) LR 1 P and D 130, at p 133.
 Eversley’s Law of Domestic Relations, 6th ed. (1951), pp 2-3.
 Section 46(2) allows an exemption to the requirement to say the exact words of s 46(1) where a celebrant provides a standard “form and ceremony” which states the nature of marriage in an equivalent way.This may have been used to exempt some religious marriage celebrants (not from a “recognized denomination” but appointed for a small religious group) from saying the precise s 46(1) words, so long as they sufficiently indicate the elements of the marriage relationship. But in all the circumstances it seems likely that the “man/woman” requirement would need to be spelled out in what these celebrants said, under the current law.
On 30 August 2016 the Victorian Attorney-General introduced into the Victorian lower house the Equal Opportunity Amendment (Religious Exceptions) Bill 2016. The Bill proposes to “amend the Equal Opportunity Act 2010 to modify the religious exceptions in relation to the employment of a person by religious bodies and schools”. I would like to suggest that, if enacted, it will fundamentally impair the religious freedom of faith-based organisations. In fact, it might also be found to be constitutionally invalid and of no effect.