Same-sex marriage legislation had been presented to the
Parliament of Australia on 22 occasions between September 2004 and May 2017, though on each occasion the legislation failed to pass either the
House of Representatives or the
Senate. These attempts followed the
Howard government's 2004 amendment to the
Marriage Act 1961 which explicitly defined marriage as a union between only a man and a woman and banned the recognition of same-sex marriages conducted lawfully in foreign jurisdictions. Prior to the legalisation of same-sex marriage, same-sex relationships could only be treated as
de facto unions under federal law. These unions provide couples with most, though not all, of the legal rights of marriage, although those rights may be difficult to assert and are not always recognised in practice.
Postal survey The
Malcolm Turnbull-led
Liberal/National government went to the
July 2016 federal election promising to put the issue of same-sex marriage to a national vote, in the form of a
plebiscite. Despite narrowly winning the election, the government could not pass the legislation to establish the plebiscite in the Senate and so eventually decided to conduct a voluntary
postal survey of all Australians on the
electoral roll.
Prime Minister Malcolm Turnbull pledged the government would facilitate the passage of a
private member's bill in the event of a "Yes" result in favour of same-sex marriage, which occurred when the results of the survey were announced by the
Australian Bureau of Statistics on 15 November 2017.
Dean Smith bill On the day the postal results were released,
Liberal Party Senator
Dean Smith, an openly
gay backbencher in the government, introduced the
Marriage Amendment (Definition and Religious Freedoms) Bill 2017 into the Senate. Smith's bill had been publicly released earlier in August, during the midst of a divisive internal effort in the Liberal Party to change policy and vote on same-sex marriage legislation without conducting a national vote. The bill itself was the result of a cross-party effort following the reporting of a Senate committee in February 2017 which investigated how a same-sex marriage law with
religious freedoms incorporated in it might operate. Several months later, Smith published a draft of the bill which would later be the one to be introduced to the Parliament in November. This means that same-sex couples who married in foreign jurisdictions automatically have their marriages recognised in Australia. In accordance with the recommendation of the Senate committee report, the bill creates a new category of marriage
celebrants in Australia, the "religious marriage celebrant", who is protected from being required to solemnise any marriage. Additionally,
religious bodies and organisations established for a religious purpose are exempt from being required to provide facilities or goods or services for a marriage ceremony that conflicts with their faith. These groups had expressed concern in the past that a same-sex marriage bill might not include this terminology, but rather only mention "same-sex" marriage, potentially prolonging the inability of some intersex and transgender people to marry. This had been a concern expressed when the
Australian Capital Territory drafted a same-sex marriage law in 2013. The bill addresses these concerns by defining marriage in Australia in
gender neutral terms; "the union of 2 people".
Proposed amendments There was some unresolved disagreement by politicians who advocated for a "No" result in the postal survey as to whether further religious protections should be added to the Smith bill as an amendment at this time or whether a later bill for this purpose should be considered. In the
Senate, several politicians sought to incorporate amendments designed to further religious, conscientious and other protections, in areas relating to marriages, classrooms and organisations. All such amendments were rejected by the Senate. Similar amendments were sought by government MPs
Andrew Hastie and
Michael Sukkar in the
House of Representatives, such as including two definitions of marriage (both man-woman marriage and two-person marriage) and expanding exemptions from anti-discrimination laws for religious organisations and conscientious objectors. All such amendments were also similarly rejected by the House of Representatives. ==The Act==