Will Hodgman

Premier of Tasmania

16 October 2018

Elise Archer, Attorney-General

Treating same-sex marriage equally

Today I tabled the Justice and Related Legislation (Marriage Amendments) Bill 2018 to ensure that Tasmanian legislation is consistent with the recent amendments to the Commonwealth Marriage Act 1961.

The Bill represents the final step in the process to implement the changes to the  Marriage Act 1961 which was amended in December 2017 to allow same-sex couples to marry.

Marriage is now defined as the “union of two people to the exclusion of all others, voluntarily entered into for life” and the right to marry is no longer determined by the sex of the parties.

The Justice and Related Legislation (Marriage Amendments) Bill 2018 will ensure that same-sex married couples will be treated equally in Tasmania in a range of areas of law.

Specifically, it will remove the requirement that a person applying to register a change of sex under the Births, Deaths and Marriages Registration Act 1999 “not be married” and extend the presumptions of parentage in the Status of Children Act 1974 to recognise parentage arising from same-sex marriage.

The amendments will also extend relevant consent provisions in the Adoption Act 1988 to women in a same-sex marriage.

In addition, the amendments will enable a minister of religion or religious marriage celebrant to refuse to perform a same-sex marriage ceremony, but only if the circumstances mentioned in section 47 or 47A of the Commonwealth Marriage Act 1961 apply to that refusal.

This provision goes no further than those of the Commonwealth law and ensures consistency between our two jurisdictions.

We don’t want those who are exempt under the Commonwealth Act to potentially be subject to a complaint under our own, state-based legislation.

We are mindful of calls for broader reforms on legislative responses to sex and gender in Tasmania to be wrapped up in this legislation, including advocacy calling for the removal of gender markers on birth certificates, as well as other policy change.

We acknowledge these issues are of significance to many in our community, but also strongly believe that such reforms deserve a thorough consideration and consultation.

With this in mind, the Government has asked the Tasmania Law Reform Institute (TLRI) to consider a referral to examine potential reform for the State, and provide recommendations to the Government on matters relating to sex and gender in Tasmania’s legislation.

There are three jurisdictions in Australia that have acted to remove the surgical requirement for a change of sex on birth certificates, namely Western Australia, South Australia and the ACT.

It is important to note that they have standalone legislation and each also takes a different approach to the reform. Two of the three are also currently reviewing their existing legislation, which highlights this area of reform is evolving, and requires careful and detailed consideration by an appropriate body such as the TLRI.

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