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Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill
Marriage Amendment (Same-Sex Marriage) Bill

ILES, Mr Martyn, Director, Human Rights Law Alliance

PHILLIPS, Dr David, Founder, FamilyVoice Australia

WYLD, Mr Damian, Chief Executive Officer, Marriage Alliance

Committee met at 08:37

CHAIR ( Senator Fawcett ): I declare open this third hearing of the Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill. I just note, as I did yesterday, that this is not a formal government document; this is part of the package that was put together for the plebiscite. It has not been through the party room or cabinet but is something that the Senate, through the motion moved by the opposition Greens and Senator Xenophon, has sought to seek discussion on. These are public proceedings, although the committee may determine or agree to a request to have evidence heard in camera. I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee.

If a witness objects to answering a question, the witness should state the ground upon which the objection is taken and the committee will determine whether it will insist on an answer, having regard to the ground which is claimed. If the committee determines to insist on an answer, a witness may request that that answer be provided in camera. Such a request may also be made at any other time. I remind those contributing that you cannot divulge confidential or personal identifying information when you speak. If you wish to supplement your evidence with written information, please forward it to the secretariat after this hearing.

I now welcome representatives from the Human Rights Law Alliance, the Marriage Alliance and FamilyVoice Australia. Dr Phillips, I see that the old adage is true: you may retire, but the work never stops; just the pay, I assume! Welcome. Thank you for appearing before the committee today. Would you care to make a brief opening statement, Dr Phillips?

Dr Phillips : Certainly. First of all, a brief explanation about FamilyVoice. We are a Christian voice for family, faith and freedom, seeking to defend marriage, human life, parenting, our Christian heritage and fundamental democratic freedoms. We work with Christians from all mainstream denominational traditions and we seek to engage with members of parliament, state and federal, from all political parties or none. We have no connections with any political party and we have representatives in all states of Australia.

I want to make essentially two points in relation to the matter before the committee. First of all is that the effective power of legislators—parliament and courts—is limited by reality. Parliaments cannot decide that, in the interests of space travel, they will abolish the law of gravity; parliaments cannot declare that two plus two equals five. They can do so, but it has no effect, because it is just unreal. Parliaments could decide that citizens have the right to change their date of birth on their birth certificates, because a person may want to appear older or younger, but that would not change the reality that a person is born on a certain day. No matter what parliaments or courts say, that day remains the same. Likewise, it is not possible for a person to change their sex. They are born with either XY chromosomes for males or XX for females, and it is not within the power of parliaments or courts to change the chromosomal structure of human bodies. The institution of marriage arises from the biological reality that every human being on this planet begins life as the union of a sperm and an ovum, contributed by a man and a woman, and so marriage is really the social and public expression of an underlying biological reality—no matter what parliaments or courts decide, the underlying biological reality is incapable of change.

The second point that I want to address is the nature of the fundamental freedoms found in the International Covenant on Civil and Political Rights. Articles 18, 19, 21, 22 and 23 affirm the fundamental rights to religious freedom, freedom of expression, freedom of assembly, freedom of association and the right to marry and found a family. Are these rights, asserted by the United Nations, simply an expression of something that a group of people came up with on one day—whenever it was, 1948? I would argue that they are actually an expression of what it means to be human.

The characteristics of the Homo sapiens as a species is that human beings are capable of abstract thought, and that leads to the formation of beliefs and values, which is essentially religious in nature. So, to say there is a fundamental right to freedom of religion or belief or thought is a recognition that the human race has that inherent capability. To deny that is to deny what it means to be human. Likewise, human beings have the capacity for communication of ideas and thoughts and values and beliefs, and that inherent capability of Homo sapiens to communicate those things gives rise to a recognition that humans need to be free to exercise their natural ability for communication; hence the right to freedom of communication, expression. Likewise for assembly and association. Human beings are essentially gregarious. They live together in groups and communities, and freedom of association and the freedom not to associate is really a recognition of the way in which human beings are by nature collective.

Finally, the right to marry and found a family is a recognition that the human race is propagated by the sexual union of a man and a woman, which gives rise to children. One of the unique things about the human baby is its dependence on its mother or parents in the early years of life. You see in nature documentaries and so on that a baby giraffe is born and before very long is staggering to its little legs and trotting along behind its mother. The human baby is very dependent, far more dependent than the offspring of other species, and is dependent on parents. In fact, it is dependent on parents for the next 20 years or so until the child reaches maturity as an adult. Children do best when raised in the context of a stable family of their biological parents.

The articles in the ICCPR are, in our view, an expression of what it means to be human. They are fundamental and they override other rights, because to deny the capacity to live as human beings are inherently made to be is really the sort of thing one only finds in history in totalitarian regimes such as Hitler's Germany, Stalin's Russia or Mao's China, and I do not think we want to go in that direction, and certainly it is not part of liberal Western democracy to intrude on those fundamental human rights. Thank you, Mr Chairman.

Mr Wyld : Good morning and thank you for the opportunity to appear before the committee today. Marriage Alliance is an independent alliance bringing together individuals and organisations supporting a common cause. We exist to voice the opinion of the silent majority of Australians who respect same-sex attracted people but do not want to change the current definition of marriage. Conscious of the specific subject matter of the inquiry—namely, the government's draft exposure bill for same-sex marriage as originally proposed for a popular vote—our submission focuses in particular on the right to religious freedom. We submit that religious freedom is a fundamental human right, that framing a debate in terms of exemptions misunderstands this fact, and that human rights extend to all people. To highlight the last point, it was recently said to me that freedom of religion cannot be afforded to those who stand in the pulpit but not to those who sit in the pews. Threats to religious freedom would exist in the event of the redefinition of marriage, despite the best intentions of legislators. For that reason, we do not consider the exposure draft capable of being amended to provide sufficient protection.

I also draw the committee's attention to the considerable community concern on the issue. A Marriage Alliance petition concerning religious freedom and same-sex marriage has attracted nearly 10,000 signatories in just the last few weeks. In the same time frame, a simultaneous encouragement to contribute to this particular inquiry saw well over 1,000 submissions made via our website. In conclusion, the exposure draft bill falls woefully short in its attempts to protect religious freedom. At a bare minimum, we seek that any future draft legislation addresses the considerations outlined in our submission. Thank you.

Mr Iles : I thank the committee for the opportunity to speak today. Just a point of clarity to start with on the Human Rights Law Alliance. It is a human rights law clinic that was established by the Australian Christian Lobby. We have been involved in more than 15 cases in the last few months relating to religious freedom in state tribunals, Magistrates, District and Supreme Courts, and the Federal Court.

In my opening statement, I thought I would mention one story which brings some clarity to a number of the issues we and others have raised. Through my work I have come across a number of stories in Australia and overseas. It is the story of Barronelle Stutzman, who is a florist from Washington State in the USA. She had a gay friend and customer, Robert Ingersoll, and she served him for about a decade with thousands of dollars worth of flowers.

When same-sex marriage became legal in Washington State, Mr Ingersoll approached Mrs Stutzman to do flowers for his same-sex wedding. She took some time to sit down with Mr Ingersoll and have a conversation with him and she told him that, firstly, she loved him; and, secondly, that she would continue to do anything for him but with the exception of this one. She explained that her conscientious convictions informed by her Christian beliefs meant that she could not participate in a same-sex wedding. She gave him references to three other nearby florists within minutes drive whom she could personally recommend and she wished him the very best; they hugged and all seemed well. Nonetheless, the Washington State Attorney-General sued Barronelle Stutzman and Mr Ingersoll subsequently joined the action. She lost in the county court and her appeal has just recently been heard in the Washington State Supreme Court.

I raise the case just because it tells us a few clarifying things. It tells us that, firstly, that freedom of thought, conscience and religion or belief is a human right. All people have convictions of conscience by virtue of their being human. It is not a right merely given to ordained clergy or institutions. Secondly, it shows us the true nature of the objection that we seek to have protected. There was no sign in Barronelle's window saying, 'No gays.' Nobody seeks to protect that behaviour. Barronelle willingly served and befriended members of the LGBTIQ community. The basis of her objection was not identity. She served customers with a gay identity. The basis of her objection was the desire not to be forced to participate in a ceremony in a way which violates her conscience. Her conscience is a core and fundamental attribute of her identity.

It is not an unusual kind of objection. There was a printer recently who declined to print a book by Dr David van Gend on the basis of conscientious objection. There are consulting firms and so forth that do not wish to give services to organisations like the Australian Christian Lobby and many others on the ground of their conscientious objections. Fashion designers have come out in large numbers recently and said that they will not dress Melania Trump because they do not wish to support the political regime that she represents.

The question is should the violation of conscience through the doing of positive acts be compelled by law? Thirdly, the case shows that zero religious freedom protections is not the harmonious option. Some have said that this is the way to a fair go, but as the cases bear out—and there are hundreds of them around the world—this does not yield a harmonious situation. That has been seen recently in Australia with the national director of Australian Marriage Equality inciting supporters to lodge complaints against Archbishop Julian Porteous.

Finally, it shows us that same-sex marriage is not an isolated law. It has consequences that pop up right across the community, even in Mrs Stutzman's case. The law on marriage is fundamental in nature. It impacts many norms around gender, sexuality and family, and it has wide consequences for freedom of speech, freedom of association and freedom of religion. Thank you.

CHAIR: Mr Wyld, in your submission, you talk about Siracusa principles in balancing competing human rights. I notice that is a piece of guidance that even the Human Rights Commission did not bring forward to offer to us. Can you talk a little about some case history of what those principles are and how it might apply to this situation of this balance? If you look at the submissions, there article 18, but most of the cases are saying articles 2 and 26 around equality before the law and non-discrimination are the rights that need to be balanced. How do the Siracusa principles apply to that?

Mr Wyld : That is a very broad question and one could submit a second submission on that alone. Suffice it to say, though, and I think Dr Phillips alluded to this earlier, that there are often competing rights; rights come into conflict. In this instance, freedom of religion is under the spotlight this morning. As you have alluded to, a number of groups who have made submissions have actually essentially ignored the fact that the Siracusa principles exist. They have been in presence for more than three decades in Australia as a signatory to those principles. We would submit, obviously, that when rights come into conflict some must be considered paramount. Essentially, the right to freedom of religion and freedom of conscience must trump just about every other right.

In terms of the actual practical consequence of that, I would happy to provide some examples further, whether they be international or, indeed, Australian as to the effect of antidiscrimination legislation that could come into conflict with these principles. One case in particular, which I do not think has received sufficient airplay because it actually occurred right here in Australia, was a case going back to 1998. It actually involves one of the parties who made a submission to this very inquiry. The Australian Human Rights Commission, in its previous form as the Human Rights and Equal Opportunity Commission, received a complaint in 1998 regarding the Catholic Education Office of the Archdiocese of Sydney. The Catholic Education Office had refused to grant classification and registration to a teacher because of her, and I quote from the HREOC ruling:

… high profile as a co-convenor of the Gay and Lesbian Teachers and Students Association and her public statements on lesbian lifestyles. So it certainly was not any judgement of her as a teacher, but rather the fact that she was a very high-profile advocate for an issue that was at odds with their own ethos. One would have thought that ordinarily they would have the power to employ accordingly. However, the Human Rights and Equal Opportunity Commission found against the Catholic Education Office, acting not only as judge and jury but also as theologian, which is a place that I do not think the state should be, and I would be very surprised if anyone felt that.

In their judgement, they went so far as to say:

If the employment of—

the complainant—

would injure the religious susceptibilities of these students and their parents, the injury would be founded on a misconception. Indeed it would be not an injury to their religious susceptibilities—

and I emphasise—

but an injury to their prejudices.

Mr Chairman, this is why we have things like the Siracusa principles. This is why we have things like the ICCPR. I would be happy to provide more examples, but I think that makes the case.

CHAIR: Thank you. Mr Iles, can I come to you, if I could segue there about examples. You said you had some 15 cases in Australia. We have had a number of people recount cases overseas, where people's views around traditional marriage—so not even an action sometimes; just expressing a view—have been enough to see some kind of detrimental action taken against them. To the extent that you can—I am not sure how many of these are still on foot—can you give the committee an understanding of the kinds of actions that have been taken in Australia, even while the current law is that marriage is between a man and a woman, and what might change if the basis of the law changed in terms of the number of those kinds of actions?

Mr Iles : Certainly. The situation in Australia is that there are cases that relate to the conflict of religious expression and religious freedom of speech and LGBT identities. Because we do not have a law on same-sex marriage here, there are only a few cases that relate directly to same-sex marriage. But the reason these cases are important is that they show there is an appetite for similar litigation in Australia. There is a tendency to say, 'Look, these cases coming up in America and other jurisdictions are for the "only in America" file.' Firstly, they are coming up significantly in the United Kingdom; they are coming up significantly in Canada. Some of the worst are from Canada. And in Australia, the same appetite for what we might call 'activist uses of the law' exists.

There are a number of cases that we have been involved in and which I can divulge to you, having secured permission. There is a case of a teacher, a schoolteacher, in a government school who shared on Facebook articles from the Guardian and the ABC which supported same-sex marriage. He shared those articles, and he expressed disagreement with them. He said that he does not support same-sex marriage. The articles made the statement that same-sex marriage would help to resolve certain issues that the LGBT community faces, and he offered the alternative explanation that those difficulties would not be resolved. He believed they were inherent in lifestyle choices. He did engage willingly and respectfully through a very long conversation thread that followed. Nonetheless, ABC News reports followed that purported to name a homophobic schoolteacher, and the education department wrote to him informing him that he was under investigation for suspected breaches of discipline. There is also the case, as you know, of Archbishop Julian Porteous—I probably do not need to recite the facts too broadly on that one—where he spoke on the subject of marriage.

Similar cases—there is another one, actually. There are circumstances around a surf shop in South Australia, where a man who is an Adelaide based pastor runs a surf shop to fund various welfare projects. There was a T-shirt in stock that had a depiction of the king of hearts and the queen of spades, or something like that, and it said, 'Love is a Choice' and that was all the branding on the T-shirt. A journalist wrote an article in the local newspaper alleging that it was a homophobic hate message, titled, 'Sanctuary Surf causes waves of offence'. His windows were smashed in and he received death threats by telephone, and he needed legal help to resolve his concerns. He went to the newspaper's office to speak to the editor and they said that he could not, so he said he would wait until he could, and police came and removed him within a fairly short period of time.

Others relate public servants. We have had a case of Commonwealth public servant who expressed concern that there was pressure being put on the department to participate in an LGBT pride march, and he raised concerns that his religious identity was not being respected in the same way and he did not wish to have the pressure put on him, because he did not want to do it, on the grounds of conscience again. He was placed under investigation by his department and he was told that he was under investigation for breaches of discipline.

There is a student that we have heard of in a major Australian university who was challenged by classmates on the issue of homosexuality. He is a Christian. They said to him, 'What would you do if you had a gay friend?' and he said, 'I would love them and be kind to them, but I wouldn't necessarily agree with what they're doing.' That was the phrase. As a result of that and because he had prayed for a fellow student with her permission, he was reported to the university authorities, and the outcome of that was that he was suspended. There was some question over the conditions under which he would be returned to study.

Senator PRATT: Under which law was that? Was that the university's practice?

Mr Iles : It was under the university's program.

Senator PRATT: Yes. It was nothing to do with national law.

Mr Iles : What I am saying with these cases, as I said before, is that there is an appetite for the same kind of activist uses of any laws in the country, and in the absence of religious freedom protection for people in universities, in various states, wherever they may be, these sorts of things will take place. So it is possible for the Commonwealth to protect people like this student. Those are some examples of the cases I can talk about that we have come up against. I will just say one more. I know that time is getting away.

Lee Jones was the managing director of a Melbourne digital services agency. He had hired the 20 staff or so that were in the organisation, or had been part of hiring them. He had hired transgender persons and he had hired gay people. He was challenged over his beliefs on the Safe Schools program, because that came up in an office conversation. When he was challenged he explained that he did not agree, but he also explained that he did not want this to be an issue in the workplace, because he believed in diversity and he thought that people of all political opinions should be there. He was summarily dismissed—far from that. In his case he did receive a settlement. So that outcome was favourable.

Those are the situations. As I said, they show an appetite and they show a need for protection.

CHAIR: That is my 10 minutes worth, so, Senator Pratt, I will pass to you.

Senator PRATT: I have a question regarding the Australian Christian Lobby and Human Rights Alliance submission. You seem to bring in a range of issues that do not relate to the bill before us, one of which is reference on page 12 regarding cause for concern about the Labor Party’s national platform as amended in 2015:

The platform states that Labor will make it unlawful for certain discouragements of homosexual behaviour by parents in their children. Such action may be deemed “serious psychological abuse” and “domestic violence”.

I wanted to ask you if you believe gay conversion therapy really works.

Mr Iles : The wording of the resolution does not limit it to gay conversion therapy. The wording of the resolution is, in my view, from a legal point of view, sufficiently general that it could be used in an activist way, I suppose, to apply to more than just conversion therapy. So that is not actually the basis and thrust of our concerns in that regard.

Senator PRATT: Are you aware of the high rate of suicide among young LGBTI Australians and of how some of that suicidal ideation and behaviour is driven by a difference of values with their family and of how difficult that is?

Mr Iles : To answer the question, I just want to say two things. Firstly, article 18 clause 4 of the International Covenant on Civil and Political Rights says:

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

That is a fundamental human right that cannot be derogated even in times of public emergency in the international covenant that Australia is a party to. So I think there is another—

Senator PRATT: But how, in an Australian context, should we balance that international human right with the psychological consequences of possible suicidal ideation and self-harm from these young people?

Mr Iles : I think it is doubtless there are a number of things that the government can do to help young people in this circumstance, and I do not for a minute say that they should not. However, if the government is going to, as part of that, get involved in the parent-child relationship, that is very concerning. There was a very interesting case at the UK high court recently where the Named Person scheme was challenged in the high court. I think the Named Person scheme was proposed by the Scottish government, and it was to essentially have a non-parental role model appointed by the state to have pretty close association with children of parents. Now, that Named Person scheme was substantially struck down by the high court, and the high court said words to the effect that it is the mark of a totalitarian society that they distance children from their parents, and there was a fairly extensive statement to that effect. It was very powerful, and I think it rings true that if you are going to get involved in the parent-child relationship coercively that is the wrong way to deal with that problem.

Senator PRATT: What if that parent hands their child over to the church and has the church seek to counsel them about their sexuality and, as a result of that, that child tries to commit suicide? I have had people very close to me where that has been exactly what has happened.

Mr Iles : Look, I do not like to just use the hypothetical excuse, but there are many, many kinds of injustices that could be perpetuated in all manner of forums.

Senator PRATT: So you would acknowledge that that is unjust?

Mr Iles : I would acknowledge that there can be very misguided counselling of people, not just LGBTI people but any person on any issue, and that is unfortunate. Again, I am not sure that the government can make that right.

Senator PRATT: But you can understand why the Labor Party has a—

Mr Iles : I understand the Labor Party's motivations. I do. I think they are misguided.

Senator PRATT: So what should government do when people seek to hand their children over to the church for this kind of counselling? Should it not interfere at all? Should it not make it a child protection issue?

Mr Iles : It is substantially outside the scope of the religious freedom provisions in this particular bill, I am afraid.

Senator PRATT: Yes. Well, you put it in your submission, and I am—

Mr Iles : What I put in the submission I have answered.

Senator PRATT: What relationship does this issue have to the context of same-sex marriage?

Mr Iles : It is in the submission because we wanted to show—and this was the last point of my opening statement—that the issue of same-sex marriage actually has substantial rights-based implications. There is an argument out there that changing the law on marriage really only affects marriage itself and that these flow-on consequences to freedoms as we are discussing here, or even broader freedoms like associational rights, religious rights, speech rights, or flow-on consequences into fields of gender identity and family—all those sorts of things—are irrelevant: we are just talking about marriage. What we want to show is that actually marriage is quite a fundamental thing. It is a fundamental law that reaches tentacles into each of these areas. That is the purpose of that discussion.

Senator PRATT: It 'reaches tentacles'. What are the exact legal links between the Marriage Act and these areas, because I cannot see any?

Mr Iles : Again, international human rights law is actually instructive on this very point. Article 23 of the ICCPR does not just define marriage as something that exists in isolation. Firstly, it says that the right to marriage carries the right to found a family. So, it links those two things. The second thing it does is say that marriage is the natural fundamental group unit of society. So, it also links marriage in with society at large. Philosophically, it makes a lot of sense, because it says, well, if you have the natural fundamental group unit of society, that is the group unit by which society is naturally produced—male-female relationships.

Senator PRATT: Why would you deny many thousands of families access to the institution of marriage if that is what you purport it to be? Are you saying that LGBTI people with children are not families?

Mr Iles : No, I am not. But what I am saying is that marriage is the union of a man and a woman; it is the natural fundamental group unit of society. It is the union by which society is naturally produced. That is what links it to marriage—man-woman marriage—and that is what links it to effects throughout society at large. So, I actually think that on the international human rights law understanding of marriage it is quite clear that actually the apprehension there is of man-woman marriage, because of the language that is used. And it makes the connections that we discussed fairly clear, I think.

Senator PRATT: I would beg to differ in relation to the nature of Australian family formation and the manner in which that is carried from international human rights law into Australian law. But can I ask you, with relation to your views about the exemptions and carve outs for religious freedoms within the current bill, do you have a view about, for example, the definition of 'gender' within that bill?

Mr Iles : No. I am not entirely sure what you are driving at.

Senator PRATT: Well, I guess people, according to other kinds of religious doctrine that I have seen come from the Australian Christian Lobby—some people within Christian circles, Christian theology—do not accept people's gender transition that has legally taken place. Now, transgender people who have had their gender identity legally recognised are already legally recognised in their right to marry under the current marriage laws of this country. And as far as I can tell, the world has not caved in; the family unit has not disintegrated because of that, because these people have the right to get married. Now, according to the theological arguments that you have put forward, those people should be excluded from the institution of marriage, where they are currently included, and the world has not ended accordingly.

Mr Iles : It is not a theological argument. The argument put forward is a human rights argument and it is a natural law theory argument. It is a public policy argument, and the reasons given for it are there. The male-female definition of marriage is ancient, and there are reasons for it. I accept that many do not accept the reasons, but it does not mean that they are not reasons.

Senator PRATT: No, but can you accept that that is already the case within Australian law, that the definition of man-woman marriage has already changed in this country, thanks to the fact that people who have had their gender identity recognised can get legally married under the current law?

Mr Iles : The Marriage Act defines what marriage is—

Senator PRATT: As between a man and a woman?

Mr Iles : Correct.

Senator PRATT: Okay. So you have no theological issue with transgender people being able to access that institution?

Mr Iles : I am not here to discuss theology and transgender access to the institution—

Senator PRATT: But you are discussing theology. That is why you see—you see man-woman just as a biological fact, not with a theological basis—the Australian Christian Lobby? I am thoroughly confused.

Mr Iles : Senator, we are way off—

Senator PRATT: Thank you.

Senator SMITH: I have a question to the Human Rights Law Alliance, the Marriage Alliance and Family Voice. If the religious freedoms issue can be resolved, you would support an amendment to marriage so that same-sex couples could be married?

Mr Iles : This is the reason the submission we put in goes into so much detail, as Senator Pratt pointed out. We are of the view that the change to the marriage law is so fundamental in nature and it impacts so many different things, as borne out by comparative legal analysis in other jurisdictions, that full protection of religious freedom and conscience is not possible with a change to the marriage law. That is a big statement to make but, certainly, the change to the dynamics around the freedom of religion, association, speech et cetera is so strong that we would not put a lot of faith in the ability for parliaments to legislate for religious freedom in that environment.

The question also goes beyond the scope of the inquiry, because there are other reasons that somebody might be opposed to same-sex marriage. Those would relate to things like, 'What is marriage?' I think Dr Phillips included in his opening statement, 'What's best for society? Is it worth retaining a traditional family structure?' Things like that.

So on account of other considerations as well, the answer would still be no. But if there is to be this law then fulsome religious protections, absolutely, are necessary and it would make it a lot easier.

Mr Wyld : I think it is well known, from our written submission and our public comment on the issue, that our position is that marriage be retained in its current definition. Having said that, we are doing our best to work within the guidelines of the terms of reference of this particular inquiry and not to discuss the more substantive question of same-sex marriage, which, as Mr Iles just alluded to, delves into many other areas simply than the religious freedom one which is before us this morning.

Frankly, the exposure draft before us, on this particular question of religious freedom, reinforces our view that sufficient protection cannot be afforded to those who might have different opinions in the event that marriage was redefined. This bill reinforces those views. Having said that, our position is still that we would very much like to see this put to a popular vote, namely a plebiscite. I know that is not within the ambit of this inquiry. In the event that that were to happen, we would want to see the best bill possible put forward, and we are working constructively towards that. Ultimately, at the end of the day, we do support the current definition of marriage.

Senator SMITH: Do you think the issues are irreconcilable with your position that supports the traditional definition of marriage?

Mr Wyld : We have stated as such. But it is a democracy and other people have their opinions so we want to—

Senator SMITH: I am just interested in the Marriage Alliance view.

Dr Phillips : What I emphasised in my opening remarks is that the fundamental freedoms of religious expression, assembly, association and marrying and forming a family are human rights. The bill only protects ordained Christian ministers, which is a very narrow exception. The exception, if it is to be there at all, needs to apply to every Australian citizen in every area of belief, every area of practice, every area of association and every area of family formation.

The example we give is from the Defence Act, on page 10 of our submission, where the exemption for military service is:

The following persons are exempt from service in the Defence Force in time of war…

(h) persons whose conscientious beliefs do not allow them to participate in war or warlike


(i) persons whose conscientious beliefs do not allow them to participate in a particular

War …

So if there were to be exceptions to this bill it would have to be of the nature that any person who has a conscientious belief that same-sex marriage is not really marriage should be allowed to hold that belief without prejudice to their employment—as examples given by Mr Iles a moment ago—without prejudice to their ability to communicate, to express their views, without sanctions against them, without the ability to associate with others of like mind. And the freedom to associate is also the freedom not to associate. Those who do not accept same-sex marriage should be free to not associate with those who they choose not to associate with.

If you take the full ramifications of people being able to exercise their freedom of conscience, freedom of expression, freedom of association and so on, every Australian citizen should be free to exercise those freedoms in every circumstance. It is hard to see how that can be compatible with a law to introduce same-sex marriage—

Senator SMITH: So, again, if all those preconditions were met, Dr Phillips, would FamilyVoice support the change in the definition of marriage?

Dr Phillips : Well, we would like to see laws which protect all of those full expressions—

Senator SMITH: If that it was possible, would FamilyVoice be agreeable to changing the definition of marriage to include same-sex couples?

Dr Phillips : The other thing that I said was that the institution of marriage actually flows from the biological reality that human beings come into this world through the union of a sperm and an ovum, which is provided by a man and a woman, and the natural family is a social expression—that is the cultural construct or the cultural recognition—of the underlying biological reality. Our position is that that is marriage which is recognised by 90 per cent of the countries in the world and which is recognised by all major religions of the world—not only Christianity, but Hinduism, Buddhism, Shintoism and all the other religions. That is the nature of reality; it is incapable of change.

Senator SMITH: Are there any circumstances in which FamilyVoice would change its position opposing same-sex marriage? If there are, what are they?

Dr Phillips : It is really not a matter of FamilyVoice changing its position. Marriage is not defined; it is recognised. Marriage is a recognition of a fundamental biological reality. It is not possible for parliaments, courts or anyone else to deny what is reality.

Senator SMITH: Dr Phillips, are there any scenarios in which FamilyVoice would change its position in regards to agreeing to same-sex marriage?

Dr Phillips : Senator, I thank you for your question; I think I have endeavoured to answer it in the best way—

Senator SMITH: I think you know what I am trying to say and I think you have answered it. Thank you very much. Mr Iles, you mentioned that there were 15 cases. Can you provide us with the information on each of those 15 cases over the course of the next week?

Mr Iles : Not the full 15, but I can provide information on those where people have given permission for information to be divulged and on those that have concluded. Yes, I can.

Senator SMITH: Why would someone not want to make their case known to this committee? We can facilitate the exchange of that information in camera. It does not have to be put on the public record. Are you able to provide us with information about those 15 cases?

Mr Iles : I would have to ask the people involved. I mean—

Senator SMITH: Are you able to ask the people involved?

Mr Iles : Sure, yes.

Senator SMITH: Excellent.

Senator KITCHING: One of the points which has come up over the last couple of days is that there should be a positive expression of rights, rather than expressing rights as an exemption or an exception. In this case, the right to same-sex marriage should be framed in the same positive language that article 18 of the universal declaration of human rights uses. Can I ask each of you: what is your opinion on that?

Mr Wyld : We have simply pointed to the fact that if we set out to look at religious freedom, for example, in terms of exemptions or exceptions—and there is a slight legal definition—

Senator KITCHING: Yes.

Mr Wyld : then we have really set off on the wrong foot to begin with. Dr Phillips alluded to the fact earlier that these are broad principles that ought to apply to all people across a much broader range of circumstances. If we set out to basically pen people in on the reservation, as it were—those who might disagree with the prevailing norms or laws of the day—we have set out on the wrong track. As the ICCPR and other documents stipulate, they are non-derogable, they are inalienable rights, and frankly are laws, whether the Marriage Act is redefined or not, and probably need to do a much better job of upholding and expressing those laws.

Dr Phillips : There are two fundamental approaches to freedoms and laws and so on which find expression in various places, but part of it is illustrated by ancient Greece and ancient Rome. In ancient Greece, citizens were free to do whatever they liked as long as they did not threaten to destabilise the state. So it was freedom with—

Senator KITCHING: Sorry—in ancient Greece or in ancient Rome or in both?

Dr Phillips : There are two different approaches. One in Greece—

Senator KITCHING: Athens, as a polis, had a very different societal framework from Sparta.

Dr Phillips : I am not an ancient historian, but in general terms—it was the Athenian culture, from memory—citizens were free to form associations and do things provided they did not act in a way which—

Senator KITCHING: I am just going to interrupt you again because, obviously, men had some of those freedoms, but women did not. Women, for example, were punished if they attended the Olympic Games, even if a son or a relative was competing. So women had very few rights.

Dr Phillips : That may well be true. In Rome on the other hand, the Roman citizens were not permitted to do anything without Senate authority. So one was saying, 'You have freedom with certain exceptions' and the other approach is to say, 'You have no freedom, but we will give you permissions.' One also sees this in modern times. The English common law was saying that in England, historically, people have had freedoms in areas except where the government says there are laws against it. The opposite was on the continent under Napoleonic law, where there was a Napoleonic code which set out: 'These are your rights and freedoms.' Our general preference is for the common law provision, where people are free except for those things that are dangerous to other citizens or a threat to society. So the notion of governments declaring what rights you have has certain problems, but certainly in the ICCPR statements in articles 18, 19, 21, 22 and 23, which set out those fundamental freedoms, if they were given full expression they would provide the kinds of protections we believe Australian citizens should receive.

Senator KITCHING: Mr Iles, did you want to respond differently?

Mr Iles : I would respond just a little differently.

Senator KITCHING: I would like to keep going. I am interested. I would like to keep going with Dr Phillips, but in the interests of time I will not explore the competing rights of Roman citizens versus other citizens of the Roman Empire. Sorry, Mr Iles.

CHAIR: Perhaps you could do an adjournment speech on the history some time!

Mr Iles : When you say 'positive statement of the rights', are you referring to a positive statement of religious freedom or more specifically about objections to same-sex marriage?

Senator KITCHING: I will take that firstly. I am wondering if the exposure draft could be phrased differently. That might allow us to fulfil the terms of reference—one of those terms of reference being that we are to try to arrive at some conclusion or a report that is likely to garner the support of the Senate. That is (c) in the terms of reference if you want to look at that. I am interested in how we achieve that. We have had other submissions over the last couple of days that have indicated that perhaps the way the exposure draft is framed currently may not be the best way forward. I would interested in your view.

Mr Iles : Thanks for clarifying. To make the point on the exposure draft, there is nothing inherently wrong with the protections that are offered. Everybody who supports the religious freedom arguments is grateful for those protections; the trouble is they fall short. In terms of what would be necessary to go far enough, it is difficult to imagine a situation where that could be done without another piece of legislation—a subsequent enactment or something else. Putting it in that amendment would be very clunky indeed. Maybe parliamentary drafters may be able to do it. As for a positive statement of religious freedom in general, the trouble you have then is linking belief about marriage with religious freedom, and courts have in the past not necessarily done that. There have been situations where they have not made that connection between religious expression and belief about marriage or things like gender identity and so forth as well.

The other issue is this: being a common law jurisdiction, historically the adage holds true in Australia that freedom is already guaranteed. People are free to do anything unless specifically prohibited by law. Chief Justice French quoted that again recently in Momcilovic v The Queen. That is the assumption in a common law society, which is why historically there was not necessarily a codification of freedoms in many societies. So the religious freedom already exists until it is encroached on by legislation and the encroaching legislation in these situations tends to be the interplay between a change in the definition of marriage and antidiscrimination laws. So the problem, I would submit, is actually with the drafting of antidiscrimination laws in Australia. The trouble we have there is that they do not reflect the international definition of non-discrimination. They simply say that difference of treatment that may be detrimental is discrimination. That is very clumsy. It does not deal with the hard cases. It does not deal with fine distinctions. I made a fine distinction in my opening statement about discriminating against someone on the basis of who they are and not wanting to participate in a particular ceremony. That distinction is not made in our discrimination laws.

In order to make that distinction better, it is very simple to just adopt the international standard of what discrimination is. If you look at general comment 18 on the nondiscrimination clause in the ICCPR put out by the UN Human Rights Committee, they simply say there that not every difference of treatment is unjust discrimination. It is unjust discrimination that we have to prevent, but difference of treatment is enough. The difference of treatment needs to be subjected to a test of whether it is reasonable and objective, and whether it is in pursuit of a legitimate purpose. A legitimate purpose is defined as some other purpose under the covenant—so another human right or freedom. That enables courts to actually look at these cases and analyse them a little more carefully and they can ask: 'Well, is this a genuine pursuit of a conscientious objection under article 18 of the ICCPR? Is it a sincerely held right? Is the objection then reasonable?' In the marriage situation, it can be very well argued that there is a view of marriage that many may disagree with, nonetheless it is reasonable—if they can articulate it. You combine that with the fact that it is a fundamental and enduring tenet of religious doctrine. When you combine those two things together, you see the legitimacy of, say, a Barronelle Stutzman conscientious objection. The court can make those kinds of distinctions. One of the simple ways to do this would simply be to amend the definition of discrimination and actually put what is called a general limitations clause that says: when discrimination rubs up against other rights there is balancing to be done. And discrimination should be subjected to the reasonable and objective test.

The recent Australian Law Reform Commission's report, as a response to the Freedoms inquiry, extracts one of those clauses suggested by professors Patrick Parkinson and Nicholas Aroney in full. In our view, it really incorporates the international law standard very effectively. So refining the definition of discrimination, I think, is a huge way forward. It prevents that incursion which is taking place right now by legislation, because the freedom already existed until the legislation came along. Is that clear?

Senator KITCHING: Yes. Given that we are distinguishing between things, can I ask whether any of you on the panel would draw a distinction between religious freedom, conscientious belief? And you have raised some military contexts. So would you distinguish conscientious objection from conscientious belief?

Mr Iles : I think what you are getting at is the distinction between belief and practice. So somebody may have a conviction—a belief—and then there is the conscientious objection, which is the acting out of that belief. It is true that the freedom of religion is bifurcated. It has two parts. There is the freedom to believe and the freedom to practice. Many people say: freedom to believe is guaranteed; freedom of practice is not. That is not quite right. If freedom of religion is only a right to protect belief then it is not even a right, because the government, no matter how hard it tries, it cannot limit what people actually think. The freedom of religion has only ever—

Senator KITCHING: It would be an Orwellian government.

Mr Iles : Exactly. It would be crazy. It would be the thought police—which is not ultimately possible anyway. So it actually always has protected practice. And in our submission we quote justices Mason and Brennan in the Church of the New Faith case where they make that point, and Justice Redlich in the Christian Youth Camps case where he makes that point as practice. That right needs to be seen together—that is my answer. Conscientious objection and conscientious belief need to be seen as a package. It is a conscientious right—or religious freedom right or belief right. They are put together in the ICCPR.

Dr Phillips : I totally agree with what Mr Iles has just said. Add one thing: there are reasonable and unreasonable limitations. The ICCPR, in a number of cases, says that is subject to exceptions in the case of national security, public order, public health, public morals and the rights and freedoms of others. It is those bounds to the freedom of conscience that need to be considered, but, essentially, as Mr Isles said, it is the practice that it is often where the rubber hits the road and the debates are all about the expression of beliefs. And the expression of beliefs in practical circumstances is what needs to be considered and protected.

Senator PATERSON: Thank you, Senator Kitching and Mr Isles, for that very interesting exchange about the limitations on discrimination law. That is not something I had heard before, and I was very interested to hear it. I might pursue it in a slightly different way. Mr Isles, so far in your testimony you have talked about where we draw this line for people of faith who are not religious ministers and their protections or their right to not participate. I assume that your story of the florist in Washington is illustrative of your views in a way that you think it is reasonable for her to refuse to not participate in a same-sex wedding but that it would not be reasonable for her to refuse to provide flowers to a gay person because they are gay. Is that a fair summary of your view?

Mr Iles : In that case, yes.

Senator PATERSON: So the exception that you are seeking, or the protection that you are seeking, it is only for people of faith who are not religious ministers, as far as ceremonial wedding events are concerned. It is not a general exception from serving gay people in other contexts.

Mr Iles : It is a little more than just wedding ceremonies. It is various services. Certainly that point holds if somebody has a sign on the window saying 'No gays'—if I can use that cartoonish expression of it. That is a discrimination against someone based on their basic personhood. That is Star of David and all those sorts of things. It is not right. The services that people should be able to conscientiously object to run pretty deep through the marriage ceremony. There are issues around family counselling. There is a whole list in our submission. There are also Catholic schools, for example, who want to do sex education but they do not want to include certain elements of sex education around the LGBTI stuff. There are objections to Safe Schools going in. As far as this becomes an issue of gender identity, sexuality and family, there are a few more things; but it is essentially a participation in or association of freedom rights. They all anchor in those basic freedoms of speech, conscience and association.

Senator PRATT: So a commitment ceremony and some of the other things where people are currently protected under the Equal Opportunity Act would fall into what you are talking about?

Mr Iles : They might. I do not a speak for myself and I cannot speak for everybody out there—but potentially.

Senator PRATT: So a commitment ceremony, which is not legally recognised—

CHAIR: Senator Pratt, Senator Paterson has the call.

Senator PRATT: Sorry, Chair. I apologise.

Senator PATERSON: I want to try and drill down a little on this, because for the purposes of this committee and this bill we are seeking to protect people's religious freedom in this context and so we need to know where it is appropriate to draw that line. I am seeking your assistance in what you think the appropriate line is. We heard evidence from an Anglican and a Catholic bishop yesterday. Basically their position, as I understand it, is that you should only be allowed to refuse service if it is closely connected to a wedding ceremony. Let's put aside schools and counselling and other things for the purpose of this discussion. They said, for example, it would not be appropriate for a taxi driver to refuse to take people to a same-sex wedding because it is not closely connected enough to the wedding itself; it is just the usual stuff that they provide to anyone. Perhaps it would not be appropriate for someone who has a chair hire business to refuse to lease their chairs for a same-sex wedding, but if it was a photographer who was going to be at the ceremony all day and was basically participating there then it might be appropriate to protect them. Where would you draw that line?

Mr Iles : Indirect participation is probably going too far. The taxi driver is indirect. That is easy; that is a simple legal principle. The more I think about the nuances of some of these hard cases, the more I think that the reform to the anti-discrimination law that I talked about is a pretty good way to deal with it, because those hard cases, if they came up, could be tested in court and all the arguments could be put forward because the legislation would accommodate it. If you are going to try and draft legislation that handles every last contingency and detail, it is impossible; we know that. So you need to protect against the really outrageous stuff, the non-genuine stuff or the arbitrary stuff. All of that can be done if those principles are incorporated, as I described, we believe.

Senator PATERSON: I apologise. I have not read every word of your submission. Is it covered in your submission how you would amend discrimination law to deal with that?

Mr Iles : That is a good question. I did write it, but I have forgotten it already.

CHAIR: Perhaps you would like to take that on notice and provide that to us.

Mr Iles : I will take it on notice.

Senator PATERSON: If you could, on notice, tell us exactly how discrimination law could be amended to resolve these issues, because following on from Senator Smith's line of questioning earlier I understand the principle position you have on the definition marriage. But if we are to go down this path it seems to me that the issues you have are in reality more about discrimination law than they are about the bill itself, and it may be a wider issue, which then gets into your concerns about schools and counselling and all those other things.

Mr Iles : I think that the protections offered in the bill are necessary, but I do think that some positive protection and belief about marriage might be necessary, so I am not discounting that at all. But I do think that the other would go some way, and I would be happy to provide some information on notice.

Senator PATERSON: Thank you. Mr Wyld, I am interested in your view about whether there is a meaningful difference for us in protecting people's freedom of conscience that is based on religious values as opposed to their freedom of conscience that is based on other values. Is there any reason why, as a committee, we should elevate conscientious objection that has come from religious teaching over one that has not?

Mr Wyld : I think your question is quite close to one that Senator Kitching asked before, which I was itching to try and answer, so thank you. I know the particular terms of reference in this case relate more to religious freedom—although freedom of conscience, if memory serves, is actually mentioned in the exposure draft, but in a very limited context with regard to civil celebrants and the like because obviously a lot of those do not hail from religious backgrounds or provide their services on that basis. Obviously, religious freedom is recognised in a number of international instruments. It is elevated to a fairly high level. But I would certainly encourage the committee not to forget or ignore freedom of conscience as well. Many people do base their beliefs on nonreligious criteria and considerations. As to one of the examples that Dr Phillips provided earlier, of conscientious objection under the Defence Act: I imagine that, in a fair number of instances, objection to a particular war or any wars might be based on a religious consideration; someone might be a pacifist; but then again I am sure that, along the way, there are particular conflicts that people might take exception to on their own basis, from a completely nonreligious standpoint. So I think it is important that those particular rights, based on a nonreligious consideration, not be completely lost in this mix.

Senator PATERSON: Yes, and obviously the ICCPR refers to freedom of conscience and freedom of thought alongside religious freedom as if they are complementary, in a way; they do not require one other to be a valid freedom worth protecting.

Dr Phillips : Just one clarification or thought for you in relation to your earlier question: one of the things that has not been raised is the distinction between public or monopolistic services and private or multitudinous services. Compare public transport with a florist, for example: if you deny someone, on any ground—racial, or gay or whatever—the right to use public transport, you are denying them an essential public service. People should not be able to deny people monopolised public services. But, as to florists: if you take a city the size of Adelaide or any of the major capitals, there are hundreds and hundreds of florists; if one florist says, 'I don't want to provide flowers for your wedding,' there are dozens of other florists in easy reach. So I think one thing that has not been considered in most antidiscrimination laws that I am aware of is the criterion that if a service is available through multiple alternative sources then you should not deny people the right to exercise their conscience.

CHAIR: We are over time for this area. Senator Smith, I believe you wanted to put one question on notice?

Senator SMITH: Um—

CHAIR: No. That is fine. You hesitate, you lose! Gentlemen, thank you for your submissions and for appearing today. I think each of you have undertaken to provide further information to the committee. We have a fairly tight time frame for reporting, and so if we could have that information within one week that would be very helpful for us. Thank you again for your submissions.