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Standing Committee on Social Policy and Legal Affairs - 12/04/2012

BROHIER, Mr Frederick Christopher, Barrister, Lawyers for the Preservation of the Definition of Marriage

LYNCH, Professor Andrew, Director, Private capacity

ROCHOW, Mr Neville Grant, SC, Council Member, Lawyers for the Preservation of the Definition of Marriage

WILLIAMS, Professor George, Private capacity

[11:24]

CHAIR: I call on our next witnesses. I understand that the Law Council of Australia is unable to attend today. Please note that these meetings are a formal proceedings of parliament. Everything said should be factual and honest, and it can be considered a serious matter to attempt to mislead the committee.

It is good to see you again, Professor Williams. We appreciated your briefing. Just so people know, we had an earlier briefing with Professor Williams which was not a public part of the inquiry. Would anyone like to make an opening statement before we begin questions?

Mr Rochow : Chair, it may assist if we gave you a package of materials we have prepared. We have prepared a short outline of matters and some supporting materials that are not necessarily referred to in the submissions we have put in writing. Would that be of assistance?

CHAIR: Yes, please.

Mr Rochow : As that information is being passed around to members of the committee, perhaps I can just outline the three general propositions that we would make by way of our submission and our evidence before the committee. Firstly, we perceive some uncertainty constitutionally in the legislation which is proposed. That means in both bills. We also think that there is some interpretive difficulty with the bills as expressed. We also think there are some policy questions that need to be answered which have not necessarily been addressed so far, as far as we can discern, in the debate.

There is an outline at the beginning of our materials, and below that outline are other materials that support the propositions we refer to, including some recent European human rights decisions that go towards some aspects of the argument, both for and against. As you would have perceived from our paper and also from these brief submissions, we see that there are some difficulties constitutionally in the redefinition of marriage in the way that is proposed by the legislation. Just to highlight that briefly, it is paragraphs 6 and 10 of our written submission that we particularly draw attention to. Also, in paragraph 9 of the outline, as you can see, we talk about the connotation/denotation distinction. It is our submission that marriage, being an institution, would be treated in such a way under that distinction that the bills would be invalid for the reasons we outlined at paragraph 38 of the submission. It is also at paragraphs 6 and 10. At paragraph 38 we also refer to an appeal to the potential use of the foreign affairs power as a way in which these bills could be validated. In order for that to be a proper indication of that power, the parliament would have to be able to point to some basis upon which the power is invoked, some international covenant that allows it to rely upon that.

CHAIR: The covenant first before the parliament could invoke it—is that what you are suggesting?

Mr Rochow : There has to be a covenant to which the exercise of the power attaches. You have to be invoking some foreign affairs obligation in order to bring the legislation validly within that power.

CHAIR: So you are saying that the parliament would have to enter into a treaty, basically.

Mr Rochow : No, I am saying that they would have to point to some treaty to which Australia is already a party which entitles it to exercise this power.

CHAIR: I get you.

Mr Rochow : So the two contenders, as far as we can see, would be article 16 of the Universal Declaration of Human Rights, and point 2 of article 23 of the International Covenant on Civil and Political Rights. It is our submission, as we point to in the bundle of materials that we have given you, that neither of those would give any power to the parliament to validly legislate in this way.

We also point to some recent decisions of the European Court of Human Rights. The three cases we refer to are: Schalk and Kope v Austria; Gas and Dubois v France; and Johnston and others v Ireland. We outline those at paragraph 12 of the outline we provided to you.

We respectfully submit that, if the parliament wanted to proceed in this way, there are three certain or proper ways it could proceed. The first way is a referendum. That is the way, we respectfully submit, there is the most certainty. It assists in certainty not only legally and constitutionally but also politically, because the people will have had their say. Alternatively, there could be some referral of powers from the states; or some sort of model could be legislated using the territorial power, which could be adopted by the states for their own civil unions legislation. Those are the three ways we say we can proceed with certainty if this legislation were to go through, or if something like it were to go through.

CHAIR: You are talking about whether it would survive a challenge?

Mr Rochow : Exactly, yes. Precisely, thank you. We also refer to some difficulties we foresee under the Acts Interpretation Act if these particular bills were to become law. We see them as potentially expanding the meaning of marriage even beyond what is intended—I can develop that in due course. We conclude with some policy issues; while we respect the fact that it is the role of the committee to ask the questions, we ask them somewhat rhetorically rather than seeking answers. Those questions that we say could be asked include those that appear at paragraph 18 of our outline.

If the parliament were to take this move and legislate in this way, what logical reason exists not to extend marriage to those who wish to contract polygamous marriages, whether polygynous or polyandrous? If we are going to redefine marriage to avoid discrimination, why would the parliament continue to discriminate against people who want those sorts of marriages? If we are talking about this sort of expansion of marriage, why should there not be some relaxation of consanguinity as a restriction? If the marriage is not going to produce any progeny of its own but would have to bring them in artificially or through adoption, why couldn't a brother and a brother or a sister and a sister marry? That is in outline where we are headed. I can take you through the material as we discuss it this morning.

CHAIR: Thank you. Professor Lynch and Professor Williams, would one of you like to make an introductory comment?

Prof. Lynch : Thank you. We will briefly highlight certain elements of our written submission. The submission begins with two broad observations. The first is that an inability of same-sex couples to enter into marriage constitutes a discrimination against them because heterosexual couples are able to take that legal step and solemnise their relationship in the eyes of the state. That then means that there are legal disabilities associated with same-sex couples because they do not have that ability to choose between a de facto status and married status. The second point that we make is in reference to the recognition of the separation between church and state in Australia and the significance of the religious dimension of this debate, which we saw in the earlier session. But many of the issues raised in discussion really are answered by section 116 of the Constitution, which ensures that the Commonwealth cannot impose any religious observance upon people. There is quite a clear distinction between talking about marriage recognised in a secular way and solemnisation with respect of churches.

CHAIR: I think you were here for that last question, which touched on that. There were still some residual fears—well, not residual; out-front fears.

Prof. Lynch : That is right. Those fears were quite palpable, but section 116 really does provide a very clear answer to that, and obviously the bills themselves take certain steps, as does the Marriage Act presently. In the second part of the submission, we look at the two definitions which are proposed by these respective bills and we suggest that in fact the wording of the equality bill, which is slightly more extensive, may be superfluous. Then we examine the legislative basis for enacting same-sex marriage at the Commonwealth level, focusing, obviously, upon the marriage power. We cite academic and judicial authority which suggests the possibility of this but also recognises the difficulties. We conclude ultimately that it is an uncertain proposition as to whether the High Court would recognise a law providing for same-sex marriage as validly supported by section 51(xxi), the marriage power. We then consider the external affairs power as an alternative.

CHAIR: Paraphrasing what Professor Williams said in his earlier briefing, that might depend on when it reaches the High Court.

Prof. Lynch : Absolutely. It is an untested question. We acknowledge the comments which have been made about the uncertainty which pertains to this issue, but, as to whether you then reach for referendum or referrals, those mechanisms are normally resorted to to deal with constitutional roadblocks. Uncertainty is best answered by using the powers that the Commonwealth has available to it and seeing whether the High Court finds those laws to be constitutional. The mechanisms of referendum, which, of course, is the most drastic of all, but also state referral, which is not insignificant, are really resorted to when it is very clear that the Commonwealth does not have legislative capacity—and that is not the case here. The best way to describe it is as an open question, I think.

Regarding the external affairs power, we consider the various international instruments which might be called upon to assist in support of this law, but we do regard those as being perhaps even more uncertain than the marriage power—particularly thin support. We mention state referrals and also look at an option of using the territories power of section 122 before concluding the written submission by noting the provision in the bill for preserving the freedom of organised religions to solemnise those unions which accord with their tenets.

Mr BANDT: There are two things I would like to ask of both of you. I will flag the first and then ask you directly about the second and maybe we can come back to the first later. The first is about the superfluity of some of the words that you suggest might be in our bill. The Law Council made the point that they would do some fairly detailed analysis of the question of gender identity and look at the authorities on that. They suggest that in that context, given that the legal definitions of 'man' and 'woman' are in fact contested, it would be better to either have an expanded form of words, as in my bill, or refer simply to 'two persons', as is the case in Canada. I invite comment about that, but I will come to my second point, about the constitutional foundation. Professor Lynch, I think you referred to differences of opinion and that it might be contested. It is my reading of the submission from the Lawyers for the Preservation of the Definition of Marriage that you are in fact going further than that and saying that the point is settled, the point is clear—

Mr Rochow : No, we are not saying it is settled with this bill.

Mr BANDT: Would you clarify that, please.

Mr Rochow : Certainly. We respectfully agree with what Professor Lynch has said, that it is contestable, and I understand what Professor Williams has also said, that it may depend upon when the matter goes before the High Court. We completely accept that, but what we are saying is that on current authority the weight of authority, if matters were to stay as they are, would be on the authorities that likely would be held to be invalid. That is really where we are going. We cannot deem it as certainty by any means. Nothing in the High Court is a certainty.

Prof. Williams : It is perhaps just a difference of emphasis and opinion. I agree it is uncertain, but I would not give much weight to the current authority, partly because some of the authority is quite old and has not been looked at by the contemporary court. There is nothing there that binds the High Court to decide either way. The way the High Court tends to approach these matters is from a first principles perspective in light of earlier decisions, but without feeling in any way bound by what has been said before. It would depend upon when it goes to the court given that there are four appointments—the majority of the court over the coming years—and, if nothing else, it will depend upon who those people are and on how they approach the matter. I think it is entirely speculative, which is the best I can say.

I would agree with Professor Lynch's point that, when you have a problem of this kind, it is simply something that needs to be resolved by the High Court. The uncertainty would be resolved one way or the other should a bill get there. If it turns out that it is unconstitutional, well, there are a range of mechanisms that the Commonwealth can proceed with, as it has in many other instances. I am not aware of any other instance where an uncertainty would be resolved by the more drastic actions without actually first having an attempt to determine what the outcome is.

CHAIR: Yes, that would be the logical process.

Prof. Williams : There are also cost reasons. The simplest way is for the parliament to pass legislation that it believes has a reasonable chance of passing through the High Court. If that proves to be incorrect, then matters are taken into hand. A referendum is something that could upwards of $50 million to $100 million. You would not want to proceed with that unless you needed to do so, and you do not know yet whether you would need to do so. If nothing else, the referral of powers is another certain way of dealing with this which, of course, would require the states to agree.

Mr NEUMANN: Can I explore something that I asked Professor Williams. He described it as an 'originalist path' or an 'evolutionary approach' on this issue of what the High Court would do. If the court struck down and adopted an originalist approach that said it always was the intention of the framers of the Constitution that section 51 was defining marriage as between a man and a woman, what would be the consequences from your point of view? I asked this question of Professor Williams in Canberra in terms of how the states could approach this. I presume you are saying that the states would have jurisdiction solely in relation to this, therefore, every state could pass—and I think I put this to Professor Williams—a law that said you could have a same-sex relationship, and the irretrievable breakdown of marriage could be two years in South Australia or five years in Western Australia. I presume that is the logical consequence.

Mr Rochow : That is the logical consequence. What we say is that, first of all, the states have already, in effect, legislated to recognise heterosexual and homosexual relations that are outside of normal marriage. They already give some sort of rights under their de facto legislation that is in each state. So there is already some recognition of it. Now we are getting down to what we call this. If what was residual to the states was to recognise a union as something specific to the jurisdiction, then it would not be called a marriage because the Commonwealth has already gone into that field and has excluded any further legislation in that area by the states. They could legislate, say, for civil unions or a thing called 'same-sex marriage' or 'gay marriage' or whatever and they could even have it mirror the Marriage Act if they wanted to. The states could do that on a jurisdiction-by-jurisdiction basis, yes.

CHAIR: Could you comment on that, Professor Williams, because I think we have had contrary evidence from you on that suggestion?

Mr NEUMANN: Unless you agree, that sounds unlikely.

CHAIR: In terms of the states not being able to legislate on this.

Prof. Williams : The starting point is: does the Commonwealth have the capacity to pass a law for same-sex marriage. If it does, it has the capacity to override any state law dealing with same-sex marriage. If the Commonwealth does not have that capacity, it cannot override any law for same-sex marriage. It just does not have the capacity to set up a conflict between the two laws. The necessary consequence of the Commonwealth lacking the power is that it could be dealt with at a state level; that is the structure of our Constitution. No lacuna arises that, if the Commonwealth cannot do it the states cannot; it does not work that way. If nothing else, the marriage power is a concurrent power, so both tiers of government can legislate on this topic. The only issue is whether there is a conflict.

My view is that, prior to 2004, there would have been a conflict that would have prevented any state enacting legislation for the topic of same-sex marriage. The effect of the 2004 amendments was to make it crystal clear that the federal Marriage Act only extends to heterosexual marriage. This has the unintended consequence of now making it clear that the federal act does not deal at all with same-sex marriage. My view—and it is a view that people will take different views on—is that it actually means that the Commonwealth covers the field of marriage generally but only heterosexual marriage, and if a state wanted to legislate on this topic, it can now do so irrespective of what the Commonwealth has done to this point.

CHAIR: As long as they were not heterosexual—

Prof. Williams : That is right. Heterosexual marriage—clearly not. It is a bit like if the Commonwealth passes a law for intellectual property and says, 'We are dealing with these forms of intellectual property.' There is nothing to stop the states passing laws for other forms of intellectual property. It is something that would be tested in the High Court, but in the end if the Commonwealth cannot pass a law on the topic the states are safe and, at the moment, I think they are still safe because of the very narrowing of the federal Marriage Act, as unintended as that consequence is.

Mr Rochow : I am sorry if we were misunderstood, or that there was something there which was contrary to what we were saying. We do think that the Marriage Act cannot be replicated by the states, but something other than the Marriage Act could be passed quite validly. I think that Mr Brohier wanted to make a comment as well.

Mr Brohier : I am writing an opinion on this issue, because South Australia has a bill before the parliament to create a creature called 'same-sex marriage'. I have had to consider Professor Williams's opinion on this given to some people in Tasmania. With respect, I have to differ somewhat from Professor Williams, because in my view the Commonwealth parliament has legislated to define what marriage is. It says that marriage is a union between a man and a woman. That therefore excludes the states from calling any relationship 'marriage'.

Professor Williams gets around that by saying that the federal parliament has entered into the field and dealt with different-sex marriage. That is not what the parliament has done. It has dealt with marriage and has said that marriage is between a man and a woman. That is the difference that I have with Professor Williams. The states can pass laws on civil unions, quite clearly, and many have. But in my submission, because of section 109 and because of the effect of the Commonwealth act—

Mr NEUMANN: Is that why the states did what they did? Is that why, for example, the Queensland state Labor government baulked at actually using the word 'marriage' in their civil union? Is that why?

Mr Brohier : That is my understanding.

Mr NEUMANN: Has that been their legal advice, as you understand?

Mr Brohier : There was some suggestion of Tasmania going ahead with a marriage bill but, as I understand it, the Premier has said that they have gone as far as they can.

Mr NEUMANN: So that has been their legal advice—

Mr Brohier : I do not know what their legal advice is—

Prof. Williams : From what I have seen, they never sought legal advice on the issue, but it is a very understandable position. This is an issue that has been dealt with at the federal level. If there were to be recognition of same-sex marriage, it ought to be at the federal level, and if you are a state premier you probably would not want to seek legal advice on this matter. You would simply say, 'This is what we wish to do and these matters should be resolved at the national level.'

I think that it illustrates there is room for a difference of opinion. I am not saying that it is the answer on this topic. There is no clear answer; it is another one of these uncertainties—and that is simply my view. But a complicating factor is that irrespective of what view you take on the inconsistency, unless the Commonwealth has the power in the first place to legislate for same-sex marriage it cannot set up an inconsistency. If my colleague's view here is correct, that in fact the authorities are the Commonwealth and they cannot do it, well certainly you cannot have any problem with the state legislation because you cannot set up an inconsistency in the first place.

Mr NEUMANN: And I will just finish this on this question: Professor Lynch and Professor Williams, is it the view that agrees with your colleagues across the table that the external affairs power really provides no certainty, that there is uncertainty so you cannot hang your hat on that as a constitutional basis for passing this sort of legislation?

Prof. Lynch : It certainly does not offer any greater certainty than the marriage power. It takes you into a larger question mark really.

Mr Rochow : Can I just add something to that? In the materials we have given you, as I said, there is the case of Schalk and Kopf v Austria. We also have provided you with the recent French case and with an English summary of that as well as the French text—the English text is not yet available. In our very haphazard and amateurish way, we tried to translate the relevant paragraph, which is paragraph 66. Two of those cases, Schalk and Kopf, and Gas et Dubois, were both homosexual unions that sought certain rights contrary to what the state would permit. Therefore, they took the matters up under the equivalent covenants under the European bill. In each case they failed because it was found not to be discriminatory merely to refuse them an equivalency in marriage. In fact, I can give you the references rather than reading them to you. If you look in Schalk and Kope from paragraph 39 and those following and particularly if you look at paragraphs 58 to 64 you will see they deal with the question of the alleged contravention of article 12.

CHAIR: In Europe?

Mr Rochow : We have to remember that the European Bill of Rights was passed pursuant to the Universal Declaration of Human Rights so it was seen as an implementation of it. While it is not the same covenant, it has an equivalency. That is in the discussion of article 12. The discussion regarding article 14 has its climax at paragraphs 106 to 111. We would also refer you to the concurring opinions that appear on pages 20 and 21 of the print. Schalk and Kope v. Austria deals with the question of discrimination. If I can paraphrase—and I hope I am not doing any injustice to the court by saying this—in order to have equality of rights, you do not have to have identity of rights. So you can have equivalency but you do not have to name the same thing as marriage, which is one of the points we make in our paper.

In the second case, Gas and Dubois v. France, I refer you to paragraph 66. In the materials provided you will find a summary, which is really just a press release, on what the case means. We have also translated for you paragraph 66 using Google Translate, and even my schoolboy French tells me that it is not quite accurate but it gives the sense sufficiently. Each of those cases depend in part for their reasoning upon the case of Johnston and others v. Ireland. That was an older case from 1986 where application was made in what was considered a violation of rights under the European instruments by the refusal of divorce. That case, again, was found to be one where there was no violation of human rights as such.

CHAIR: That is quite an old case and a different set of circumstances.

Mr Rochow : It is an old case but it was picked up in both of these recent cases as being the approach that is to be adopted in looking at these matters. The short point about the foreign affairs power is simply that unless you can point to a covenant that confers the right in clear terms, you cannot use human rights so-called in the international covenant sense as being a basis for legislation. We see it as highly uncertain and we have respectful agreement on the other side with that. They are three cases that we consider illustrate that high degree of uncertainty being picked up in any argument on the invalidity under the foreign affairs power.

Prof. Lynch : The essential endpoint is the same regarding the power. We are focused on those international instruments to which Australia is a signatory. We have looked at the UNHRC reports on those in an attempt to give an interpretation to the provisions. There are some signs there regarding the width of those obligations to which Australia is a signatory. However, we do not think it is very conclusive. Also, we certainly would not see it as imposing an obligation on Australia to pass a law for same-sex marriage; that is the crucial thing.

Prof. Williams : I come back to Mr Bandt's question earlier about the definition of marriage. I think it is an important point. From what you said about the Law Council submission, I would agree. I think that you could go long form and try and set out all the different ways in which people are described, which is problematic because even if you adopt gender identity, sexual orientation and regardless of sex perhaps in the future, there are other ways in which we understand what it means to be a person. I think also it is problematic that we seek to remove discrimination while still putting in indicators of that, even if it is meant to be in a positive way. My strong preference would be simply to say that marriage means, if you are to go down this path, the union of two people, and then move on with the rest of the definition. I cannot see why you need to attempt to go further into that matter. I think as simple as possible is the best way of dealing with something like this.

Mr BANDT: So that would be different to both of the bills that are there at the moment. One says 'regardless of sex'; the other says 'regardless of sexual orientation or gender identity'. You would suggest picking up the Law Council's point that you take out everything after 'regardless', so it just says 'marriage means the union of two people, to the exclusion of all others, voluntarily entered into for life'. Is that your preference?

Prof. Williams : I think that is very clear. I do not think there could be any doubt about what that means when it comes to this particular issue.

Mr BANDT: On that point, is there anything in the submission about the Acts Interpretation Act point about the definition of persons and people extending potentially beyond natural people?

Mr Brohier : The problem with the use of 'persons' and 'people' is that the Acts Interpretation Act mandatorily says that persons or the like include corporations. So you would have to do something to deal with that.

Mr BANDT: And that could be fixed by way of a second reading speech or an amendment to the bill, couldn't it?

Mr Brohier : Yes, but at the moment it is a mandatory provision. The South Australian Acts Interpretation Act, by contrast, says 'unless the context determines otherwise'. Section 2C does not say that.

Prof. Williams : It does say though 'expressions used to denote persons generally'. I think there is a question as to whether the use of the word 'people' in this context does denote persons generally. I think it is extremely unlikely that a court would find that this enables corporations to marry. I think it is not as mandatory as requiring that but that said I can—

CHAIR: We can see Sky and Austar getting together under the Marriage Act—

Prof. Williams : It is not a way of avoiding the competition regulations and all sorts of things. But, that said, I cannot see any harm either in putting a clarification in the legislation to indicate that should there be any doubt then it means a natural person.

Dr STONE: We have had a little discussion about civil unions and the states. Four states in particular have picked up the civil unions option, if you like, to try to give some satisfaction to same-sex couples who wish to have a legitimised or lawful relationship recognition. Clearly for gay couples themselves there is a lot of concern that that is a second-class relationship. The view is that it has not got the same sense of importance in our society or significance. Can you see a way forward where the states can think or produce some other term? There are registrations and whatever else. Are there any other international examples of where there has been managed some sort of compromise that same-sex couples have had their relationships legalised, recognised, but the word 'marriage' has not been part of that deal?

Mr Rochow : I thought from memory that Schalk and Kope had had their relationship registered and they wanted to go through to the next stage of having a civil ceremony, and that was denied them. That is the only example that I can think of in recent times where it has occurred in Europe. I do not know of any other examples beyond that. In a sense that is going to be perhaps the policy difficulty that might exist.

Mr Brohier : In answer to that question, Schalk, at paragraph 28, says that Andorra, Austria, the Czech Republic et cetera have passed some kind of legislation allowing registration of relationships. So some of the countries have gone that way.

CHAIR: Without having read the case, they felt that was sufficient?

Mr Brohier : Yes.

Dr STONE: And are those gay communities have been satisfied with that?

Prof. Williams : I think experience is very clear that there are many attempts to find alternatives, but nothing competes with marriage for its iconic status, the symbolism that it contains within our society. I am not sure it would be possible to set up a different way of recognising a relationship that could be seen within the eyes of the broader community as being of equivalence. Of course, that is what it is about. It is about an equality and equivalence. I think even in countries where they have had registration schemes it has not prevented the debate moving onto a marriage debate as it has here. Indeed the schemes in the states are in many ways very generous even compared to other nations, but it is not as if that would head off the debate we are having.

Dr STONE: Really the states are wasting their time in trying to come up with some halfway house or point in evolution when they have another term like civil union or registration, in your view.

Prof. Lynch : I would not say that. In speaking as a researcher of federalism, states provide laboratories for the development and acceptance of these ideas. Civil unions may well be a necessary stepping stone towards full recognition of same-sex marriage. I would not dismiss it as a waste of time but, obviously, it has an end point beyond which, as Professor Williams has indicated, the affected community may well still seek to go and to come to the Commonwealth parliament for assistance.

CHAIR: Professor Lynch, if you looked at that other great greenhouse of federalism, the United States, and its experiments with states doing this, could you make a comment on that? There have been some dry gulches and some u-turns and some changes in their experiment with states' rights of civil and same-sex.

Prof. Lynch : A lot of that depends, too, on the extent to which the national Bill of Rights impedes the powers of state legislatures. That is not an issue that we have to deal with here. In that sense it is quite a distinctive debate. In another, it is a good example of the political will in certain states to create the means for same-sex couples to be married that has certainly fostered and continued to push the debate. It is not diminished or resolved by that; it continues the pace.

Dr STONE: Can I also bring into the discussion the issue of recognition of formalised relationships of same-sex couples in other countries. We in the federal area have specifically ruled out recognition of marriages that have taken place elsewhere. In fact that is why we very fast-tracked, in 2004, the legislation at the time to absolutely define marriages between men and women. In terms of the states, have either of them moved along the way of recognising civil unions in other countries and also offshore adoption of children for same-sex couples?

Prof. Williams : I would be surprised if they had not, but I do not know the specifics of that area.

Mr Rochow : We do not know either.

Ms SMYTH: I have a separate line of questioning in relation to the supplementary submission we received today and particularly the rhetorical questions that have been asked at the end which seem to imply that homosexuality should, perhaps, be on the same kind of policy continuum with polygamists and incestuous relationships.

Mr Rochow : No, that is not what is intended. What is intended is that, while homosexual couples have a certain rights claim, there are other and different rights claims that also have to be legitimately considered if one rights claim is going to be considered. I am not saying there is any equivalency. There may be a hierarchy or there may not be. Certainly, somebody who is wanting to engage in a polygamist marriage may say, 'Why not me?'

Ms SMYTH: I would like to respond to the questions that have been put.

Mr Rochow : To complete my answer, the point is that as soon as you start to redefine marriage there is, it seems, a legitimacy for others to say that, for example, polygamy is recognised in a number of Middle Eastern countries and why should it not be recognised here? It is a recognised part of the institution of marriage elsewhere and you should recognise that. It is an extreme case and we only put it for illustration and rhetorical purposes about the incestuous relation. Logically, if we are worried about the results of consanguinity being the genetic defects that might arise, if there is no potential for that, why does there have to be a law against consanguinity? Why can a brother and a brother not love each other very dearly?

Ms SMYTH: Presumably we are also concerned about the nature of the relationship between those people and whether there is, in fact, a power imbalance or some sort of vulnerability in those relationships, which presumably there is not in a relationship between two consenting homosexual adults.

Mr Rochow : We do not know that in every case, do we? We cannot possibly generalise and we cannot possibly generalise about brother and brother. They may be twins.

Ms SMYTH: We presumably then cannot possibly generalise about heterosexual marriage in the same way.

Mr Rochow : Exactly, but that is precisely my point. You really make my point for me: these are valid rhetorical questions, because we cannot generalise and we cannot exclude—

Ms SMYTH: But at point 18 of the submission you state that there is an extra qualification to marriage, and it goes back to the questions I asked earlier of some of the religious organisations. That extra qualification is about natural progeny, and you are inviting—

Mr Rochow : With respect, that is really what comes from the legislation, because it is the legislation that says that people who are in a relationship of consanguinity cannot marry. The policy behind that is not clear in the legislation, but one would infer that it must be some sort of genetic perception or impropriety—whatever it might be.

Ms SMYTH: I am suggesting that you would need to clarify that that is the expectation under the Marriage Act as it stands. This is the point that I put to the religious organisations earlier: you are inviting the state to more narrowly cast the definition of marriage than is currently on the books.

Mr Rochow : With respect, that is not what we are trying to do at all.

Ms SMYTH: But it is putting in place an additional test to the definition of marriage.

Mr Rochow : No, with respect, that is not right. What we are saying is that, if this legislation passes, this is the next set of questions that needs to be logically considered and possibly even contemporaneously considered. They cannot be excluded because the people who would claim that all of these are loving relationships and that love is the ultimate criterion as to whether one should get married or not would make equal claim to their particular arrangement. In fact, polygamous marriage is already permitted, in effect—

Dr STONE: It is already a big debate in my electorate. I have this big refugee and Middle East community and they want—

Mr Rochow : Could I just say this: polygamous relationships are already recognised as a matter of state law. You can have a polygamous de facto relationship that will have the equivalency of a de facto marriage. You can already do that, so why wouldn't they say, 'If we can get that in a state law, why can't we have the sanctity of marriage for it at the federal level?' It is a logical flow-on—

CHAIR: To be clear, I think it would be under federal law as well, wouldn't it? You can have two de factos, can't you? Or three or 10 de factos.

Mr Rochow : That is right.

Mr Brohier : A point made in footnote 10 to paragraph 18 is that the Law Council puts forward South Africa as an exemplar. South Africa has two sets of legislation, one for heterosexual marriage and one for homosexual marriage. But South Africa recognises polygamous marriages. If we are urged to follow the South African model, the question then arises: if South Africa recognises polygamous marriage, which it does, should we recognise it here?

Mr BANDT: These are policy questions, though. They do not arise in any wording of items of bills.

Mr Brohier : They are a consequence of the bills.

Mr BANDT: These are debates for another day. If someone wanted to come back, as you put it, and then make a subsequent argument, anyone can make any argument they like. But there is nothing in the passage of these bills that would make it—

Mr Rochow : That is right, but the point is that these are logical corollaries that have to be addressed as part of this debate.

Mr BANDT: Some may disagree with that.

CHAIR: These would then be treated on a case-by-case basis.

Mr Rochow : Exactly.

CHAIR: And that has been the case. I think there have been arguments about relationships between people who are under age because of customs. I think there was an Indigenous case where a defence was put up and it was found to be unsuccessful as a defence, and I assume there have been other examples.

Mr Rochow : Yes, there have.

CHAIR: These are done on a case-by-case basis, I guess. I am not saying that they could not be put up, but then they would be treated by the courts—

Mr Rochow : All we are really saying is that, if you are treating this as a matter of policy and talking about eliminating discrimination, you must move on to the next levels of discrimination as part of that consideration because there is no logical difference from the point of view of the person who wants to participate in these relationships—

CHAIR: Except for the fact that both bits of legislation say 'to the exclusion of all others'. So, in fact, there is the situation we have now, where some of the two-thirds of Australian relationships that are not marriages can be multiple de facto relationships. In fact, Mr Neumann has represented people in this regard.

Mr NEUMANN: I have done lots of cases in the Family Court, when I was practising as a lawyer, where there were concurrent cases between multiple partners. It happens all the time—every day—there would be courts in New South Wales right now dealing with those things.

Mr Rochow : With respect, that is out point. Why can't these existing relationships—in the same way that existing relationships that are homosexual—say, 'I too want the sanctity of marriage'?

CHAIR: They would have to bring out their own legislation, because the two proposed bits of legislation would specifically exclude them.

Mr Rochow : We are not saying it arises as part of the text of the bill. We are saying it must arise as part of the deliberation on the policy.

CHAIR: We will leave that for another committee and maybe the lawyers for the protection of monogamy.

Dr STONE: I already have in my electorate, which is extraordinarily multicultural, a movement along these lines, saying, 'How come we can't have our Middle Eastern marriages to more than one woman legitimised this way?'

CHAIR: As I said, we will leave that for another committee, Dr Stone.

Dr STONE: But I am saying it is a logical extension which we will be seeing.

Mr Brohier : I think there is a difference between the Jones bill, the marriage amendment bill and, with respect, Mr Bandt's bill, in the objects. The objects are to set out diversity as a fundamental human right and celebrate diversity. They will give, in my submission, a basis in Commonwealth law for people who want to press a polygamous view or some of the other questions we have raised—

Dr STONE: Or polyandrous.

Mr Brohier : or polyandrous—to say: this diversity is a fundamental human right. The Jones bill does not have that difficulty, because those objects are not in the bill. In my submission, parliament should think very carefully about the objects as expressed in Mr Bandt's bill.

Mr BANDT: I want to move on to another question in the last few minutes. A point was raised—and I think it was touched on right at the start of your evidence—about the protection that is provided for religious organisations that choose not to perform same-sex marriage ceremonies should the bill pass. Both of the bills make it clear that there is no obligation to marry couples, but there were some questions raised about the relationship between this bill and antidiscrimination laws. Some questions were also raised about the property of religious organisations, about whether they would be entitled to refuse services or refuse access to property. There has been some suggestion that those protections ought to be expanded. I think you, Professor Lynch, mentioned the Constitution and the protections that it provided there. I invite you both to comment on that.

Prof. Lynch : During the closing discussion of the earlier session there was some conversation about whether religious organisations would be obliged to make their premises available for same-sex marriage ceremonies. There is clearly no hint of that in either of the two bills before this committee—in fact, the possible additional clause would seem to lend no support for that. The fundamental answer must be that section 116 of the Constitution prohibits the Commonwealth from imposing any religious observance. It is a clause which separates church from state in a number of different ways, and the idea that religious organisations could be directed to, or required by Commonwealth law, to have ceremonies performed on their premises runs completely counter to that provision. I just think there is a constitutional answer.

Prof. Williams : And it is not just the observance laws; there are four clauses there, and one is you have the right to the free exercise of your religion too.

CHAIR: And that could include the right to exclude.

Prof. Williams : Absolutely. If the exercise of your religion requires you to do certain things or not do certain things, then there is a constitutional answer that trumps any legislation, including antidiscrimination legislation.

CHAIR: I am not sure if you have worked in this area of law, but in Queensland—and I know Queensland legislation better than that of other states or the Commonwealth—it talks about the tenets of the religion. It cannot be plucked out of the air; you must be able to go to the religion to show the reasons for your exclusion.

Prof. Lynch : The whole thing is a complete furphy, because that would be like suggesting that two Mormons could approach the Catholic diocese and say, 'We wish to be married in St Mary's Cathedral; they of course would be refused. It is actually nothing to do with gender orientation or same-sex attraction; it is about the rules of each established church—which already exclude a great number of heterosexual couples from having their marriage ceremonies performed in their premises.

Mr BANDT: What about the others who participate in the marriage industry—if I can put it that way—if this bill were to pass? What about the civil celebrants or wedding photographers?

CHAIR: We are about to hear from them.

Prof. Williams : The basic rule in this area or in any area of law is you cannot be compelled to do something unless there is a clear obligation within the legislation to that effect. You cannot give rise to an obligation without that. There is no obligation anywhere in the Marriage Act that says people must do something against their own will, whoever they are or whatever their status. A very simple defence to anyone who is pressured is there is no legal obligation whatsoever. I do not have a problem with section 47 being extended to make it clear to people that it is indeed the case. But as to whether it is a legal necessity, it is not. You have to have an obligation in the first place to even need a defence against an obligation.

CHAIR: Counter to that argument would be discrimination law such as if I was in charge of a Catholic cathedral and I said to two Mormons I would not marry them because they are Mormons. Let us leave aside the cathedral, what if I was a marriage celebrant and I said I would not marry you because you are Mormons or because you are Callithumpians or whatever, how about then?

Prof. Williams : Absolutely. If there was something in antidiscrimination law that proposed an obligation in that context then you would be right, but there is no obligation imposed by antidiscrimination law.

CHAIR: What about when providing a service?

Prof. Williams : I am talking here about the religious bodies in particular. There are clear exemptions for those.

CHAIR: What about moving on to a celebrant?

Prof. Williams : When it comes to a celebrant, certainly if there were matters such as denying people of certain races access to their services then there could well be an issue arising there.

CHAIR: What about certain religions?

Prof. Williams : Federal antidiscrimination law is typically far more limited than state antidiscrimination law, particularly when it comes to matters of state, sexuality and the other areas we are talking about. It just has not gone as far. If it did and an obligation was imposed then, yes, there could well be an issue. That is to say, even if it was, it would still be trumped by section 116 anyway. Section 116 overrides all antidiscrimination legislation at the federal level.

Mr Brohier : Picking up on that point, section 116 does not apply to the states so the problem here is the state antidiscrimination laws. In South Australia a civil celebrant would have difficulty if they chose not to solemnise a same-sex relationship because the protections under section 47 do not apply to civil celebrants. There would be a difficulty there. The second issue is that, again looking at South Australian equal opportunity legislation, there is the current investigation by the Attorney-General in relation to the federal antidiscrimination legislation as to whether the religious exemptions should be removed or narrowed to things like removing them from librarians, cleaners and teachers in religious schools.

CHAIR: As in, 'I cannot employ you because you are not a Catholic to teach but I cannot refuse your employment to clean the toilets in a Catholic school?' Is that what you are saying?

Mr Brohier : This is dealing with the sexual orientation issues. I cannot employ you if you are homosexual as a priest but I do not have that right to refuse if you are a librarian at the school. That is the debate at the moment.

CHAIR: I know it has not been tested in Queensland. It had not been tested in employment law, which is the area I worked in. Are you saying in South Australia they are seeking advice on it?

Mr Brohier : There is a federal investigation going on at the moment. There are 30 questions that have been promulgated. The South Australian bar has responded to them. The concern from the religious bodies is that at a later stage there might be a narrowing of their liberties. That is where there will be an argument about section 116 if the federal legislation moves into that area. In South Australia if a photographer refuses to take part in a same-sex marriage they will be at great risk of being in breach of the equal opportunity legislation because they would be acting discriminatorily.

Mr Brohier : Yes.

Prof. Lynch : With respect, how is this any different from any services that same-sex couples currently see? If they approach someone to come and clean their house and someone says, 'I'm not comfortable doing that', then they may well be caught under antidiscrimination law of the state. So I do not actually see how this is an argument against same-sex marriage.

Mr Brohier : It is not meant to be.

CHAIR: If they said, 'I'm too busy to clean your house', that is the end of the situation. Professor Williams, do you have any final comment?

Prof. Williams : No.

CHAIR: Thank you all very much for appearing before us today. I now call on representatives from the Civil Celebrations Network, the Coalition of Celebrant Associations and Engage Celebrants.