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Wednesday, 15 February 2017
Page: 1031


Senator FAWCETT (South AustraliaDeputy Government Whip in the Senate) (17:05): I present the report of the Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill 2016 together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

Senator FAWCETT: I move:

That the Senate take note of the report.

The definition of marriage is an issue that is deeply held by many people in Australia and, accordingly, the government's position has been and continues to be to allow the people of Australia to have their say via plebiscite on whether that definition should change. It is a matter of record that the government's legislation to enable a plebiscite was defeated in the Senate last year, in November, but it still remains the government's policy position. As part of the preparatory works for the plebiscite, the Attorney-General released an exposure draft for comment, which formed the basis of a vote by the Labor, Greens and NXT parties to create this select committee to examine the exposure draft, with a particular reference to the requirement for, or efficacy of, religious freedoms.

I think it is important to note that evidence before the committee confirmed that, under jurisprudence in international law Australia is not required to make a change to the definition of marriage, but nor is there an impediment to it doing so. The United Nations Human Rights Committee has made it clear that, as long as the nation has legislation to both recognise and protect same-sex relationships, as Australia does, then the right to freedom from discrimination and equality before the law is fulfilled. That is because, under article 23 of the International Covenant on Civil and Political Rights, marriage is defined as being between a man and woman, and the European Court of Human Rights has made a number of judgements in recent years supporting this approach.

What I am coming to here is that the context of this inquiry, therefore, was not that a change is inevitable, but, if a future parliament chose to legislate for a change in the definition of marriage, it would potentially enliven the right to the freedom of thought, conscience and religion in a range of areas. Evidence to the committee demonstrated that there are substantial matters of human rights law to be dealt with that extend well beyond the Marriage Act itself. So, if Australia is to remain a plural and tolerant society where different views are valued and legal, legislators must recognise that this change will require careful, simultaneous consideration of a wide range of specialist areas of law, as opposed to the common perception that it involves changing just a few words in one act of parliament. People on both sides of politics who support a change have made comments in the past to the extent that it is a quick and simple change. But what this inquiry has demonstrated very clearly is that there are actually quite extensive areas that need to be considered. And if Australia is to remain that plural, diverse community, where different views are protected, then those changes need to occur in a coordinated manner, not with some lagging others, particularly given the record in Australia of previous attempts to align or reform laws such as anti-discrimination laws across the nation.

As chair, I wish to record my appreciation for the collegiate manner in which members of the committee and witnesses have approached this inquiry. The members of the committee and the witnesses come from a wide range of lived experiences and positions on this topic. They have different understandings of how the institution of marriage should be defined. Yet, despite that, I am pleased to report to the Senate and to the Australian public at large that this has been a good example of where legislatures can work constructively together to explore the differences and to place on the public record a report that identifies these fundamental rights that must be carefully considered, respected and balanced in any future legislation that a parliament may approve.

So, having provided that broad contextual statement, I would like to touch on some of the key points of the report. The report is split into two large areas. The first deals with the exposure draft itself and particular provisions in that but fairly quickly then moves into the third chapter, which deals with the issue of human rights, which is where much of the discussion occurred in terms of which rights apply and how they intersect and where they intersect and how they should be balanced. That issue of balance is important, and the committee was particularly seized by the comment of Professor Patrick Parkinson, who indicated that, on this topic, balance does not mean that one right is crushed under the weight of another. In fact, that lines up with the international jurisprudence and guidance on this issue that says that nation-states should lean towards supporting the right, and any limitation must be subject to legitimate purposes and be reasonable, and the least amount of impact that can be used.

Australia has signed up to seven core United Nations treaties. In general, those treaties show that any limitation must be prescribed by law in pursuit of a legitimate objective and be rationally connected to its stated objective and be proportionate in the way to achieve that objective. The rights we are talking about here are outlined in article 23 of the International Covenant on Civil and Political Rights, the ICCP; articles 2 and 26, the right to nondiscrimination; and article 18, which is the right to freedom of thought and religion and conscience, which is split into two parts, one being to hold it and one being to manifest it.

As I mentioned in my opening comments, there is international jurisprudence that says that Australia has no obligation to change our current definition of marriage, because under international law we do not offend any human rights law as long as we provide an alternative recognition for same-sex relationships. That position has been challenged by a number of people, who claim that the case of Joslin, being 17 years old, is now outdated. But, given that there has been no subsequent judgement by the Human Rights Committee and that the average in terms of judicial authorities citied by courts is over 18 years, then the proposition that something that is 17 years old and has not been superseded should be ignored is hard to sustain, particularly given that the European Court of Human Rights has in recent years had four judgements that go to very much the same outcome.

There has been a lot of discussion on how to balance the rights. I would encourage people to read the report, because all the committee members basically come from different lived experiences and perspectives, and we have managed to provide a committee report that everyone has signed up to—there are no dissenting reports— because these are the issues that we hold need to be debated carefully and considered carefully by any government that moves ahead. But there are areas—for example, whether freedom of religion should be treated as an exemption or whether it should actually be a protected right, and whether it applies just to organisations, as is the case with much of our antidiscrimination law currently, or whether, as our obligation under the ICCPR clearly indicates, it applies to individuals. The question then is: how do we make sure that we allow people to live without discrimination but, at the same time, allow people to exercise their individual freedom of religion, conscience and belief? Some of the arguments that go to that focus around whether discrimination is solely on the basis of the protected attribute or whether it is in conjunction with, in the case of marriage, a union of two people who may have that protected attribute. I think that is an important distinction for parliament to consider when it debates this in future, because we have had cases put to the committee where individuals have demonstrated over years of practice of, for example, running a business, that they do not discriminate solely on the basis of a protected attribute. In fact, some had friendships and longstanding client-business relationships with people who were same-sex attracted, but when it came to the institution of marriage, they chose to say, 'We prefer not to provide a service.' That was a step too far for some people, but it is indicative of the kind of deep issue that any future government would need to grapple with should a bill pass in this area.

Again, people who came to this do not necessarily agree. I am a supporter of traditional marriage and I would like the definition to stay as it is, but this is an important piece of work because, if the parliament ever chooses to go down the path of changing, this is the scope of issues that we will need to carefully consider in order to keep Australia a diverse and plural society.