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

FOWLER, Mr Mark, Private capacity

SHARMIN, Ms Sangeeta, ACT Convenor, Australian Lawyers for Human Rights


Evidence from Mr Fowler was taken via teleconference—

CHAIR: Thank you both for appearing before the committee today. I will invite each of you to make a brief opening statement, should you wish to do so. Ms Sharmin, would you like to make a brief opening statement?

Ms Sharmin : I would first like to thank the committee on behalf of the Australian Lawyers for Human Rights for the opportunity to provide evidence on this important issue. I am the ACT Convenor for Australian Lawyers for Human Rights and, although I was not involved in drafting our submission, I will endeavour to answer as many questions as I can and assist as much as possible.

ALHR takes a strong interest in the issue of marriage equality in Australia. The exposure draft of the marriage amendment bill would legalise marriage between two people in Australia by way of amendments to the Marriage Act. We praise the government for releasing this bill. This move to recognise in law the marriage of two people is timely and fitting, contributes to the protection of human dignity and the promotion of equality, and is in accordance with human rights principles and norms. It also respects the importance of the institution of marriage and the desire of many Australians to marry who are currently prevented from doing so. However, in doing so, the bill presents a problem in where the appropriate balance is between two important freedoms: the freedom of religion and the freedom from discrimination.

To resolve this, ALHR believes the overarching principle should be that the legislative provisions need to be an appropriate and proportionate response to the harms being dealt with. Any restriction must have a legitimate aim, and the means used to measure that aim must be proportionate and necessary. Ministers of religion are already permitted to conduct religious marriage ceremonies in accordance with the doctrines of their religion. There is no further expansion necessary and there is no reason to specifically mention gender or sexual orientation as the reason for ministers not to solemnise marriage.

An appropriate and proportionate response has not been met, in relation to the proposed provisions on civil celebrants and religious bodies or organisations. We do not believe it is appropriate for marriage celebrants to be able to refuse to marry people on these grounds, as their role is not related to religion. The refusal of goods or services based on the agenda of married or marrying couples should not be permitted as it relates to a commercial interaction rather than a religious worship or service. It is also permitted under certain antidiscrimination pieces of legislation, not necessary to expand on.

Mr Fowler : The classical and modern conception that justice requires, that like cases be treated alike, can be observed in the conclusion of the United Nation's Human Rights Committee that New Zealand's continuing recognition of marriage as between a man and a woman did not amount to discrimination. The same has also been concluded by the European Court of Human Rights: in 2010, in respect of Austria; in 2014, in respect of Finland; in 2015, in respect of Italy; and in 2016, in respect of France.

Both bodies have held that the right to equality does not extend to a human right to same-sex marriage. In the case of the UNHCR this is so because marriage, being a definitional construct under the ICCPR, is not discriminatory in the terms of article 26. This is also so in respect of the European Court of Human Rights, which has applied the requirement that the parties being compared are in relevantly similar situations, with regard to the particular right being asserted, to hold that there is no human right to same-sex marriage.

To admit as such does not divert from the political principle which Professor Ronald Dworkin calls sovereign. No government is legitimate unless it shows equal concern for the fate of every person over whom it claims dominion. The idea that people should not be treated detrimentally, in relation to a comparable attribute, is not contentious and is a good to be honoured in our community. Such a principle underpins the jurisprudence of the European Court of Human Rights, which has required that states afford equality to same-sex couples in respect of recognition and entitlement to benefit.

The important questions in this context are: 'What are like matters?' and, 'What are irrelevant matters?' in respect of the particular treatment in question. This jurisprudence holds that the equality of same-sex attracted persons is not in question. To maintain a traditional view of marriage does not detract from that equality. The European Court of Human Rights has held that this equality is rightly recognised in the form of access to state recognition of relationships and accorded protections.

I also want to make a brief opening comment on the nature of associational freedoms, which are also enlivened by the bill. Associations are prior in existence to the state. They are essential to the cultivation of talent and virtue in their members. In a community of communities they offer these gifts to wider societies. Their role in pursuing the vision of the common good held by their members and in permitting the articulation of their shared concerns is fundamental to the great contest of ideas that is a flourishing democracy. The formation of citizenry requires competing visions and, at times, challenges to the state and challenges to other associations. A society in which the state labours under the misassumption that it has the exclusive ability to define individual and community conceptions of the good is a very sick, pallid society indeed. Thank you.

CHAIR: Thank you, Mr Fowler. Can I take you to your submission, paragraph 25—you included this in your opening statement as well—where you talk about the conclusion of the Human Rights Committee that the concept of marriage is a definitional construct, as defined under article 23, did not include peoples of the same sex. The consequence was that the right to equality under articles 2 and 26 was not then violated. We had a discussion yesterday with the Human Rights Commission around guidance note 18 from the United Nations Human Rights Committee in which they argue that for something to be discrimination it has to be solely on the basis of a protected attribute, but where there is a combination of factors it may not be discrimination. We used the case of Ashers bakery, where there was a long relationship with a customer who was same sex attracted—no discrimination to the person—but when they asked for support for a political statement around weddings the conjunction of the construct of marriage was reasonable grounds, according to guidance note 18, for them to take the decision not to provide the service.

Would you care to comment on whether that guidance note from the United Nations Human Rights Committee should have more focus placed on it as we look to the whole issue of competing rights, particularly as we look to the interplay between Australian state based discrimination acts and anything we put in place at a federal level around marriage.

Mr Fowler : I take it you are referring to general comment 18—

CHAIR: That is correct.

Mr Fowler : which is on article 26, freedom from discrimination. I included an excerpt from general comment 18 in my submissions—in support of my submissions:

… the Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.

This, again, draws on the classical conundrum of what is justice. Justice requires that like cases be treated alike. So the issue is, as I have set out in my submissions, that injustice arises where non-like cases are treated alike. That is reflected in the reasoning of the UN Human Rights Committee in Joslin's case, whereby they referred to the definition of marriage under the international covenant as being the sole reference to persons that was gender specific. Every other reference is to 'people' or to 'persons' and so on. They thought that was very informative in terms of the intention of the covenant. I think the jurisprudence of the European Court of Human Rights is also illustrative here. It says, of course, that the equality claim is a very important claim—foundational for a just society—but it then says, 'What are relevantly similar situations that are those relevantly similar situations to which we might then establish an equality claim.' The jurisprudence of the court has looked to the equality to entitlement and to recognition of same sex attracted couples as the grounding for that equality claim, as the means to meet the appropriately put equality claim.

In Schalk and Kopf, they stated the protections to be: needs which are fundamental to the regulation of a relationship between a couple in a stable and committed relationship such as, inter alia, the mutual rights and obligations they have towards each other, including moral and material support, maintenance obligations and inheritance rights. What the court was saying here was that lifelong, loving, committed relationships are something that the state has an interest in preserving. The equality claim is enlivened in respect of these lifelong, loving, committed relationships. To the extent that we require recognition to be accorded, then the entitlements that flow from that recognition.

Of course, that is the European jurisprudence and so it does not directly apply here but the principles of human rights law to allow us certainly to look to other jurisdictions. What that means in the Australian context is that, in 2008 with the support of both parties, equality was recognised in terms of access to various benefits under law. The Human Rights Commission has welcomed that recognition which extends to matters of succession law, superannuation and so on. That goes to benefits, and then, of course, there is recognition to entitlements. State-based schemes for recognition of civil partnerships meet that equivalent criterion which has been founded as the equality claim within the European jurisprudence.

So the question is: what are like matters? How are like matters comparable? I believe the courts are reflecting that classical notion of justice: that we find a comparator and then the equality claim is determined against that. I hope that has been sufficient coverage in answer to your question.

CHAIR: Ms Sharmin, in your submission at paragraph 4.4 (b) you talk about conscientious belief and you use the example of the refusal of medical treatment. You say:

The refusal of medical treatment has always concerned the procedure itself … rather than the characteristics of the person receiving the treatment.

As I am reading that you seem to be saying, 'We think that is fair enough,' but then you go on to talk about issues around marriage which you think are not appropriate. Coming back to the Asher case which I raised just before, we see there that a provider of a service was happy to provide the service to the person when it was simply a matter of their personal attributes—in fact they had a longstanding relationship with the person—but when it also involved the nature of, in this case, the institution of marriage they declined to provide the service. I am wondering if you could explain—

Senator PRATT: It is a medical slogan, and not a marriage.

CHAIR: Okay, and then that is even further out there—

Senator PRATT: I am not sure it would have the same—anyhow, I'll stop interjecting.

CHAIR: The political statement was around the institution of marriage, and not about the personal characteristics of the individual. I am wondering why you see a difference between a medical procedure as opposed to the characteristics of a person and an institution as opposed to the characteristics of the person. It strikes me that the two cases are actually remarkably similar in that the characteristics of the person had no impact on the relationship between the provider and the person. There was only an additional element: in one case of procedure, in the other case debate around the concept of an institution.

Ms Sharmin : From our perspective it comes down to whether it is a provision of a good and service. Going back to the Victorian case of Cobraw there are a lot of factors to be considered and the appropriate and proportionate response that I mentioned in my opening statement suggests that everything is highly contextual, and it depends on a case-by-case basis. Once facilities are made available to the public, effectively our position is that discrimination on the basis of sexual orientation should not be permitted and that position was adopted in that Victorian case of Cobraw. A lot of factors come into play—for example, whether it was publicly available if it was offered to the public at large or to a small minority. Why should different rules apply to different people?

So I think it is important to look at each different context separately rather than draw comparisons, but with the general proposition being that it has to be appropriate and proportionate, and whether the legitimate aim and the means achieved are actually necessary and proportionate.

CHAIR: I hear that, but you have actually drawn the comparison in your submission, because you have drawn the comparison of a medical service which is available to the public and then a particular procedure, which does not discriminate against the person; it is just the procedure. So I am using your comparison to say: why is that different to someone who does not discriminate against the person that has an objection to a particular interpretation of an institution and then does not want to provide the service? I cannot quite understand why you see a difference between those two. I am happy for you to take that on notice.

Ms Sharmin : I feel like I might have a different submission. You mentioned it was four point—

CHAIR: It is 4.4(b). I quote:

The refusal of medical treatment has always concerned the procedure itself (e.g. abortion) rather than the characteristics of the person receiving the treatment.

The context of that in your submission is that that is a reasonable refusal to provide service on the basis of conscientious belief, and then you go on to talk about how the refusal to provide a service in the context of marriage would not be reasonable. But again I use the Asher case to highlight that they are actually remarkably similar.

Ms Sharmin : If I could take that on notice.

CHAIR: Okay, that would be good. Finally, because I am running out of time, you state in subparagraph (c), 'Exemption for an individual minister's personal religious beliefs unnecessary'. We have had substantial evidence provided to the committee that there are situations already in Australia where one church body is probably inclined to move to the point where they would, as a group, as a denomination, approve of same-sex marriage; but there is a substantial minority within that body, both congregationally and individual ministers, who would not support that move. So we still have someone who is a minister of religion working with a body of people. Why should they not have the protections of article 18 to not solemnise same-sex marriage if that goes against not only the convictions of the individual minister but the congregation that they serve?

Ms Sharmin : It may be the way that section 47 is proposed to be drafted. I acknowledge that there may be a problem within certain sectors currently and that the current 47 may, I guess, encroach on their protection of religious freedom. However, in the way the current 47 is worded, in our opinion, it encourages too much on the protection of antidiscrimination. It is worded too broadly, and perhaps an amendment may be necessary. However, it is our position that such an exemption in such a broad manner should not be allowed.

CHAIR: Could I ask you, perhaps on notice, to consult more broadly with your group and look at some of the evidence that has been provided around the broad difference of construct within religious organisations and their forms of governance and leadership and see if you would like to make any revised suggestions in that area.

Senator PRATT: Mr Fowler, on page 5 of your submission, point 12 talks about the failure of the current bill:

… to protect the religious freedom rights of service providers … and who are engaged in areas not directly related to a wedding ceremony, such as fertility treatment, adoption and fostering services, accommodation providers, student accommodation …

Can I ask if what you are actually asking for here is not changes to the Marriage Act but changes to the Sex Discrimination Act and winding back the rights of people under that act.

Mr Fowler : Thanks, Senator Pratt—a great question. I think the current bill enlivens all of these issues. It is how far down the chain, I guess, we go. The first thing is that I know the New South Wales Anti-Discrimination Board has raised in their submission concerns around goods and services suppliers being private operators and possibly being able, under their Anti-Discrimination Act, to say that they are a religious body and therefore refuse. The bill does enliven these issues. To the extent that it says 'purposes reasonably incidental to the solmisation of marriage', there is no specificity around that particular definition. So, 'What is reasonably incidental?' is the point I am making. Does it extend to anniversaries of the marriage event? Does it extend to the natural consequences, in a sense, of marriage, being the procreation of children? These are not necessarily ethereal concerns. They have certainly been dealt with by the New South Wales Court of Appeal, the Supreme Court, which in the Wesley Mission case held that Wesley Mission was able to express its religious freedom rights in respect of an application for fostering assistance by a same-sex couple. In New South Wales that has held to be a legitimate expression of religious freedom rights. Senator Pratt, I do think that the bill enlivens these questions. If we are to introduce same-sex marriage into law, all of these necessary concomitants then come up for consideration.

Your question also asked me: am I then seeking to wind back state based protections?

Senator PRATT: No, federal protections, not state based protections.

Mr Fowler : Okay, in the Sex Discrimination Act. The Sex Discrimination Act, section 37, has not been overly litigated. There is some uncertainty around the scope of its protections. Most of the litigation has occurred under the state based antidiscrimination and equal opportunity acts. There is, I think, a need to qualify and understand the concepts within section 37. You may have heard from other submitters that there is currently a distinction between the position that has been taken by the Victorian Court of Appeal, and it was just referred to by my colleague, Ms Sharmin, the Cobaw case, where a religious camping facility operator was not permitted to refuse a booking from a same-sex counselling group, and that is contrasted with what I have just covered—the Wesley Mission case in New South Wales. There is some degree of uncertainty as to the scope of the protections, and there is an opportunity to resolve that. We, of course, should be informed by the position in international law with respect to the recognition of religious freedom. As you are no doubt aware, the International Covenant on Civil and Political Rights has been ratified by the Australian Commonwealth executive. That is effectively a statement of intention to implement the terms of the covenant.

Article 18, as you have heard, is the religious freedom protection. That critically extends to individuals and to their communal expressions. The point is that individuals who are in businesses as employees or who are operators of businesses have the benefit of the article 18 protection. The question then is: have we acquitted our obligation to implement that in domestic law, both at the Commonwealth and at the state based level? I think Associate Professor Neil Foster, who presented some submissions recently to the committee, has done the analysis across the state based laws and it is only in Victoria that individuals get a religious freedom recognition. All of the other states allow the religious freedom protection only in respect of religious organisations, with a few variations. The point is: does the Sex Discrimination Act acquit that? I think this is an opportunity to reconsider whether we are reflecting religious freedom protections that we signed up to internationally.

Senator PRATT: You have talked about so-called international links, international human rights law links between Australia and other parts of the world, but can you accept that there need not be a link between a desire to have equal marriage in Australia and international human rights law?

Mr Fowler : What I have referred to in my submission are two sources of international human rights law. I specifically focused on international human rights law because it has considered these questions at some level of detail.

Senator PRATT: I guess my point is: whilst it might say there is no obligation to enact marriage equality—and I am not passing an opinion on that either way—there is certainly no preclusion on it in any of the arguments that you have put forward.

Mr Fowler : That is correct. The implication I am drawing though, and there seems to be near total silence on this point, is that article 18 religious freedom protection clearly says that it can only be limited by a countervailing right and, to the extent that the right exists, that the limitation can only be where it is necessarily required. So the point I am drawing—and, as I said, the near total science is almost deafening on this point, and that is why I have pointed it out; none of the other submissions I have seen from the Human Rights Commission or otherwise have drawn that out—is that, because there is no right to marriage equality in respect of the construct of marriage as opposed to equality of recognition for same-sex couples, then there is not a right in respect of marriage that would limit religious freedom. It is a very important conclusion.

So my analysis is that, yes, the European Court of Human Rights has recognised that the equality of same-sex persons is absolute. They are fully human persons, as we are, and my same-sex attracted friends and family are so. But the point is in respect of the unique construct of marriage. There is not an obligation for a state to impose that, and they therefore conclude, both in the European context and the UN context, that the right to discrimination is not enlivened. That leads us to ask: where is the limiting right on religious freedom under article 18, and under article 9 of the European convention? This question has to be asked.

Senator PRATT: In terms of what you are implying, is the conclusion that you are drawing that there is the right for people to discriminate against other people's marriages?

Mr Fowler : What I am saying is that religious freedom—

Senator PRATT: There is the right to discriminate against some marriages but not others.

Mr Fowler : What the courts are saying—and I am just reflecting what the courts have said, to be clear—is that discrimination does not arise because we are not talking about comparable attributes. The UN has said that the definition of 'marriage' is between a man and a woman, and in the European context they said, 'We're only looking for relevantly comparable attributes.' So they are saying for a lifelong, loving, committed relationship states should accord equality of recognition for benefits, as we have done in Australia, and rightly so. But what they are saying is that marriage is a separate criterion that we allow because it is a historical and cultural construct. We allow states to take their own position on marriage.

Senator PRATT: Surely the right to not be discriminated against in receiving that benefit is a right in and of itself.

Mr Fowler : No, it is not. That is the whole point.

Senator PRATT: It is contradictory.

Mr Fowler : No, it is not, because what that said is the right to equality is very important. In the European context it extends this right of recognition, and they said that the recognition right is satisfied on civil partnership-type schemes.

Senator PRATT: I have run out of time, but I would like to ask Ms Sharmin to comment on what Mr Fowler has said about the implications for religious freedom as it relates to anti-discrimination law as a whole rather than the specific parts of this bill and whether it is really about how we unpick those issues for the purposes of the bill before us.

Ms Sharmin : If I could, I would like to respond to the comments about the Joslin case and the issue that you mentioned just then about international law commenting that identical treatment is not really a requirement for non-discrimination and that it is actually not discriminatory for a state to afford another form of relationship recognition but not marriage. In our submission we have noted that this has been superseded by a case. It was quoted in that case that it would no longer consider that the right to marry must in all circumstances be limited to marriage between two persons of the opposite sex. It is important to note that these issues obviously evolve over time. That case was a long time ago.

Although there are recent cases—I think, as early as 2016—which suggest that this is still the state of play from an international perspective, the recent case of Schalk that we mentioned in our submission found that article 12 of the convention does not impose an obligation on a respondent government to grant recognition to the same-sex couple.

So I think is crucial to note that these cases do not actually prevent the recognition of same-sex marriages. They are simply only concluding that it is not discriminatory or that there is no breach or that the ICCPR does not impose an obligation. They are all for different things.

Senator PRATT: In other words, we can legislate for our own values in an Australian context.

Ms Sharmin : That is right. And I think it is important to note that it is fantastic to look at international jurisprudence, but we should be trying to further human rights, not just look at what the bare minimum is from an international perspective.

Senator PRATT: I have a question for Ms Sharmin about sex discrimination law as a whole and the ramifications of what Mr Fowler is asking for in terms of carve-outs for things like fostering services, accommodation, student accommodation, courses, retreats, and the rights of employees within businesses. Ms Sharmin, you will not have Mr Fowler's submission before you, but essentially he has argued that there is a false distinction within this bill in terms of goods and services related to a marriage, versus religious expression in relation to goods and services as a whole, which is currently prohibited in the Sex Discrimination Act and other discrimination acts.

Ms Sharmin : I apologise; I would probably have to take on notice any questions about the interaction between this act and the bill, and any sort of antidiscrimination legislation.

Senator PRATT: All right. If you are happy to take that on notice, I can let you know it is page 5.12 of Mr Fowler's submission. Thank you.

Mr Fowler : Can I just respond to something my learned colleague has just said? Am I able to do that?

CHAIR: Perhaps for one minute, before I go to Senator Paterson.

Mr Fowler : Sure. Good. The case that was referred to, Schalk and Kopf, which said that the concept of family can now include persons who are same-sex attracted—the basis for that was the EU charter of freedoms, and its definition of marriage does not refer to men and women. So, for some reason, the European Court of Human Rights referred to that in order to conclude that marriage could include persons of the same sex. The point to be made in response to Senator Pratt's question is that we are bound by the International Covenant on Civil and Political Rights, which has the definition 'a man and a woman'. So there is not a separate charter definition which excludes men and women that we can rely on, and people can ground complaints to the UN Human Rights Committee in respect of breach of their religious freedom if the Commonwealth chooses to implement rights that do not reflect the international covenant.

CHAIR: Senator Paterson.

Senator PATERSON: Ms Sharmin, I was very pleasantly surprised to read in your submission summary, 'There is no hierarchy of human rights,' because I think many people feel, me included, that the right to nondiscrimination often trumps other rights when it comes into conflict with other rights. For example, when it comes into conflict with the right to freedom of speech, the right to freedom of association or the right to religious liberty, it seems that more often—not in every case, but very often—the right to nondiscrimination trumps those. Would you agree with that?

Ms Sharmin : I think in practice that has often been the case. However, in theory and ideally, no, that should not be the case. Using this bill as an example, there is a fair enough basis for why ministers of religion should be allowed to refuse to solemnise a marriage; for civil celebrants, on the other hand, there is no religious connection. So we are happy to agree to the former but not the latter. So, in practice, yes, but ideally no right should trump another one, and it should be a matter of looking at and using the appropriate and proportionate test that I mentioned earlier and how to balance those two rights.

Senator PATERSON: Why do you think it is that, generally, the right to nondiscrimination has prevailed when rights have come into conflict?

Ms Sharmin : I think it is where Australia is politically at the moment, and things that have been happening in Australia and around the world have probably caused that. And the media probably has a lot to do with it, which has caused that, I guess, extra attention and prioritising of antidiscrimination rights. However, we do not agree with that.

Senator PATERSON: Sure. So to summarise: you would say that it is more a reflection of political values than it necessarily is of human rights law or human rights principles.

Ms Sharmin : Correct.

Senator PATERSON: If we were seeking to redress that; if we were seeking to have a more even application of rights and a more even balancing between competing rights, how would we achieve that?

Ms Sharmin : I think the best way to achieve that would be—it is highly contextual and on a fact-by-fact basis; it would really depend on the bill that you have in front of you, as I mentioned. It depends on the scenario. So with the ministers of religion, you would have to look at the proportionate and appropriate test; there is a legitimate aim, so in that case I think the two rights are balanced. However, with civil celebrants, in our opinion there is no legitimate aim, so the means test has not been satisfied and the two rights have not been balanced appropriately.

Senator PATERSON: We had a previous witness who has undertaken to give us an answer on notice about how you could change the principles in anti-discrimination law to require it to give greater weight, effectively, to these other rights like association and religious liberty. Is that an idea that you are familiar with or that you have encountered before?

Ms Sharmin : No, and I am happy to take that on notice as well.

Senator PATERSON: Yes, if you could. That would be good.

CHAIR: Senator Kitching, do you have any questions?

Senator KITCHING: Interestingly, Chair, Senator Paterson asked the question I was going to ask, so I do not.

Senator PATERSON: Great minds, Senator Kitching!

Senator SMITH: That is a dangerous precedent! Mr Fowler, if I could just go to the issue of the Sex Discrimination Act. Is that a suitable place to put the religious freedom protections? Or is there a better alternative mechanism to deal with this issue of religious freedoms?

Mr Fowler : Dean, are you speaking in respect of marriage protections or the wider protections we were speaking about earlier?

Senator SMITH: The wider protections.

Mr Fowler : The appropriate place is naturally, of course, within the Sex Discrimination Act. And the reason is obvious: because, whilst this bill enlivens considerations around marriage, there are other religious freedom protections to be maintained.

Can I just make a comment also in reply: I have said in my submissions that we have to ask the question, because religious freedom can only be limited by another right, is there a right to marriage equality? And I then conclude that the courts clearly say that because it is a definitional construct, there is not that right. So we have to then consider religious freedom cannot be limited. If we do not concede that—as I think my colleague Ms Sharmin does not—we then must look at when the right can be limited. So if we concede that there is a right, and equality does extend to marriage as a definitional construct, we have got to concede that this then flows over—to answer your question, Senator, in terms of the Sex Discrimination Act, because this answer will inform what the Sex Discrimination Act should do—so the necessary limitations is the standard, as Ms Sharmin has set out. The Siracusa principles under the international covenant set out when limitations can be enlivened and, as Ms Sharmin correctly said, it must be when the limitation is proportionate to the aim. It must be based on one of the grounds justifying limitation, respond to a pressing public need, pursue a legitimate aim, and be proportionate and, critically—I am reading from the Siracusa principles—'in applying a limitation, a state shall use no more restrictive means than are required'. So this is the classic old nut of balancing rights. These are equal rights; we need to balance them.

Of course, one of the central considerations of this is the dignity of same-sex-attracted persons and the affront that could be caused when they turn up to a services supplier to be refused. How might that dignity be preserved in that context? And that is one of the key things you no doubt are looking at. It is equivalent also in respect of fertility treatment and so on, and therefore it responds to your question under this Sex Discrimination Act. So the question is, how do we limit that affront? In terms of celebrants, I will note that there are 538 persons on the register of celebrants that are non-aligned with a major denomination that is registered—independent religious organisations. So in respect of the protection for celebrants, obviously that should stay in the Marriage Act. But again, we are not talking about an ethereal concept: there are 538 persons concerned that would want to seek to express their religious freedom.

How do we avoid the offence level? Is it possible to have on the register a demarcation of those persons who are willing to offer services to same-sex attracted persons in the context of marriage celebration so that we do not have a register that declares an affront to persons who are same-sex attracted of all the people who are not willing to do so? What we are doing is a positive declaration as opposed to a negative declaration. I do not know whether that has been raised by anybody else. I have not necessarily raised it in my submission. What is cast upon us by international law is the requirement to pursue no more restrictive means than are required. So one way to enliven and allow celebrants to express that religious freedom concern is to pursue no more restrictive means and allow for identification on the register of persons who were willing to so supply. I have taken a bit of a traverse around that question but my answer is certainly within the context of your question.

Senator SMITH: It is. In the submissions yesterday in particular there was a view put that the SDA was not a suitable mechanism for the religious freedom protections. But through your explanation your highly abbreviated response is that you think it is a suitable mechanism?

Mr Fowler : I do. Sorry if I did not make this clear. The marriage question is distinct, as I hope I have made clear, under international human rights. So there are reasons why protections should be located within the Marriage Act itself as proposed by this bill.

Senator SMITH: Yes, I understand that. From my perspective, it was explained well. Thank you very much.

CHAIR: Ms Sharmin, can I come back to you briefly, firstly with an apology. Paragraph 4.4 was actually from a submission in the next group of witnesses. I had transcribed that incorrectly, so apologies for that. On my request for comment from your submission about the role of people who are not necessarily part of the major denomination—for example, your section about celebrants—we have had evidence to say that some smaller independent churches that are not part of a major denomination are not able to have the status of religious celebrants and so operate as civil celebrants. But they are still actually leading a religious congregation. So I would still be interested if you could take on notice that question around how we treat those people who are not necessarily a part of, or aligned with, a major denomination and whether you still maintain that objection in that.

Mr Fowler and Ms Sharman, thank you for your submissions and your evidence day. I think you have both been asked to provide some additional information to the committee. Because of our reporting timeframes, it would be much appreciated if we could have that within the week. I thank you for appearing today.

Proceedings suspended from 10:33 to 10:51