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Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill
23/01/2017
Marriage Amendment (Same-Sex Marriage) Bill

BROHIER, Mr Frederick Christopher, Founder, Wilberforce Foundation

GARDINER, Mr Jamie, member of LIVout, Law Institute of Victoria

McLEOD, Ms Fiona SC, President, Law Council of Australia

Committee met at 08:37

CHAIR ( Senator Fawcett ): Welcome. This is a hearing of the Senate Select Committee on the exposure draft of the Marriage Amendment (Same-Sex Marriage) Bill. These are public proceedings, although the committee may determine or agree to a request to have the 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 the answer be given in camera. Such a request may also be made at any other time. I remind those contributing that you cannot divulge confidential, personal or identifying information when you speak. If you wish to supplement your evidence with written information, please forward it to the secretariat after the hearing.

I now welcome representatives from the Law Council of Australia and the Law Institute of Victoria and, in about 20 minutes time, Mr Christopher Brohier from the Wilberforce Foundation. Because he is delayed, I plan to spend about the first 25 minutes with yourselves, then with him, and then we will wrap up with any time left with a more broader panel, in terms of any questions. Thank you for appearing before the committee today. I invite you to make a brief opening statement, should you wish to do so.

Ms McLeod : As I understand there is a pressure of time, I will trim my comments and see how we go with questions. I would like to thank the committee for the opportunity to provide evidence on this important issue and I commend the dedication of the Senate and members of the House for pursuing this important matter. The Law Council is the peak national body representing the legal profession in Australia and takes a strong interest in the issue of marriage equality in Australia—an issue fundamental to the equal treatment of all people under law.

The exposure draft of the marriage amendment bill would legalise marriage between two people in Australia by way of amendments to the Marriage Act, and we commend the government for releasing this bill. This move to recognise in law the marriage of two people is timely and appropriate and, as the High Court has noted, it is also within power. The recognition of the marriage of two people regardless of sex or gender will contribute to the protection of human dignity, the promotion and attainment of equality and the removal of historical prejudicial hurdles 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 prevented from doing so by terms of the current Marriage Act. The Marriage Act in its current form denies some Australians a right that is afforded to all other Australians based on their sexual orientation or gender identity. It discriminates against people on an aspect of their lives that is both precious and fundamental to their identity, causing harm and alienation, and creates a persistent reminder of inequality.

The bill represents an opportunity for the parliament to consider and recommend the appropriate balance between two important freedoms: the freedom of religion and the freedom from discrimination. The balancing of these important rights is familiar to international human rights law. The Law Council supports allowing couples the opportunity to marry in this country regardless of gender and the removal of provisions which discriminate against all couples who wish to get married.

In terms of the exemptions that are proposed: the bill would exempt religious ministers and civil marriage celebrants from having to solemnise marriages that are not between a man and a woman in some circumstances, and this requires a careful consideration of what is protected by freedom of religion under international human rights law. This includes both an absolute freedom to believe and a freedom which may be confined in some circumstances to manifest religion or belief and worship, observance, practice and teaching. The circumstances in which the freedom to manifest one's religion have been tested and may be confined where that right conflicts with other rights, such as the freedom from discrimination on the grounds of one's sex, sexual orientation or gender identity.

When deciding how to resolve such conflict the courts look to whether there is a sufficiently close and direct nexus between a particular act or practice and the underlying belief. In Australia performing a lawful religious marriage ceremony is closely tied with a minister of religion's religion and beliefs and often occurs in a place of worship. It is reasonable and appropriate in our view to allow ministers of religion to conduct religious marriage ceremonies in accordance therefore with the tenants and doctrines of their religion. This right is protected already by the Marriage Act and is the practice in a number of countries recognising marriage equality; however, there is no case for the need to further entrench this protection in law to include in an act whose intention is to protect people from discrimination an express discriminatory provision that a minister of religion is not obliged to solemnise a marriage that is not between a man and a woman. The provision itself may create a layer of complexity leading to uncertainty and confusion. Any broad exemption for religious ministers must be consistent with the current scope and spirit of the existing exemptions of federal discrimination law.

Our primary concerns are with proposed sections 47(3)(b)(iii), 47A and 47B. The Law Council believes the draft bill does not strike the right balance by seeking to extend the protection of freedom to manifest religion beyond that close nexus requirement and the proposals of 47(3)(b)(iii) conscientious belief, 47A civil celebrants and 47B concerning commercial activities represent further unwarranted intrusions upon the protections against nondiscrimination. Exemptions for civil celebrants, conscientious belief and exemptions afforded to religious individuals, bodies or organisations without the necessary nexus to doctrine or religious observance in the commercial arena are unbalanced, overly complex and uncertain, intrusive and have no proper basis in international human rights law or in a secular society and are not supported. Those exemptions should be removed from the exposure draft.

CHAIR: Excuse me, Ms McLeod: I am just conscious of time—

Ms McLeod : Yes. I just want to make one last point about retrospective recognition, and then I will wind up.

CHAIR: Sure.

Ms McLeod : Thank you, Senator. We welcome the retrospective recognition of the previous foreign marriages in item 14 of the exposure draft bill but note that it may have legal implications for some couples in terms of tax, superannuation and other implications potentially involving criminal penalties. We recommend that the exposure draft include what is called 'but for' provisions—for example, a provision similar to that included in the Marriage Legislation Amendment Bill 2016, which limits liability. Thank you for an opportunity to speak to our submissions.

CHAIR: Thank you very much for your submission. Perhaps I can just go to paragraph 13 of your submission, where you talk about the United Nations Human Rights Committee and you highlight that they are mandated to promote and protect the human rights in accordance with the laws and treaties, and they essentially provide an adjudication on cases that are referred to them. You cite two cases that you draw some of your positions from, being Young and Toonen.

Ms McLeod : Yes.

CHAIR: Am I correct in recalling that Young was a case where the gentleman was claiming a pension from the Veterans' Affairs agency, which had been denied him, and Toonen was about the Tasmanian laws which criminalised homosexual behaviour?

Ms McLeod : That is my understanding, but could I confirm that?

CHAIR: Okay.

Ms McLeod : Thank you.

Mr Gardiner : It is correct.

CHAIR: Thank you, Mr Gardiner. And my understanding is that the federal government overturned state laws or passed a law in 1994 overturning the criminalisation and that in 2008 Australia passed laws under the Rudd government which removed discrimination in areas such as superannuation.

Ms McLeod : Yes. A tranche of measures was introduced by the Rudd government under Attorney-General McClelland to remove certain discriminatory measures, including superannuation.

CHAIR: So, Australia has acted very clearly and decisively in response to the two cases that you mention. I notice that your submission is silent on the UN Human Rights Committee's consideration of same-sex marriage, and I go particularly to the Joslin case and their comments associated with that where they make the point in their concluding remarks that it is not discriminatory for a state to afford another form of relationship recognition but not marriage. They also make the comment during their report that identical treatment is not a requirement for nondiscrimination. I am just wondering why the council has been silent on that more recent and more directly related ruling by the committee.

Ms McLeod : I suppose it is because it has come up in this context, but in terms of why we do not mention it I think it is probably just the pressure of time in the preparation of the submission, but we can certainly have a look at that case as well.

CHAIR: Well, it goes to the heart of the issue, because you have quite rightly identified that this whole debate is around competing rights of article 26, which deals with discrimination, and article 18 and probably 19, which go to freedom of religion, conscience and belief and the right to hold an opinion and express that opinion. And much of your submission is based on your paragraph 13 and 14, where you argue that this committee has considered cases in Australia and found that discrimination on the basis of sexual orientation is illegal and prohibited. But in actual fact that was going to issues around pensions or intrusions on privacy.

Ms McLeod : Yes.

CHAIR: Where they specifically consider marriage they have found—and it is consistent in their jurisprudence—that a state has no obligation under article 26 to provide for same-sex marriage if they provide alternate forms of protection and recognition of a relationship. That position has also been supported by the European Court of Human Rights in a number of landmark decisions as recently as last year. So, I would welcome a supplementary submission by the council, because that appears to be far more directly related to the issue at hand and balancing of rights, whereas much of your submission is founded on decisions that were not related to marriage.

Ms McLeod : We will certainly do that, but I understand that the principle was that it is not discrimination to afford an identical form of recognition or a civil form of recognition, which is a slightly different issue than the issue of the competing rights, if you can use that language, and whether one right or the core of freedom of religion is offended by freedom of equality or nondiscrimination. Of course, under human rights jurisprudence, the core of a human right is not intruded upon by another equally important human right, but around the periphery there is 'give', if you like, and international jurisprudence for the most part confines freedom of religion in terms of the freedom to manifest or express one's religion so that those two rights can sit side by side.

CHAIR: Sure. The point I am making is, if you go to paragraph 413 in the committee's comments on the Joslin case—and you will have to look this up, if you do not have it in front of you—it recognises there that the travaux preparatoires also recognises that the right to nondiscrimination does not require identical treatments. They are very specific about the fact that article 26 is not necessarily offended by a state choosing not to allow marriage by people of the same sex. That is an important foundational statement by that committee, given that you have rightly recognised that they are, if you like, the champions and holders of jurisprudence on this issue.

The second point, which you have alluded to, is the balance of rights. A number of submitters have looked at what they are calling the 'balance of harms', which is: how can you support one right whilst minimising the harm, or the impact, on the other right? Is that a concept that you have explored or support?

Ms McLeod : The Yogyakarta Principles, which are familiar to us, are framed in terms of the harm to self-identity or self-esteem by eroding the principles of nondiscrimination. But the balance of harms is an issue that is taken into account when you are considering proportionality and how you adjust two rights to accommodate each other.

CHAIR: My last question before I pass to my colleagues in the interests of equity is: on that balance of harms we have had a number of submissions—and I am referring particularly to a Mr Berg and some work he has done. He looks at the fact that the harm to somebody who is perhaps inconvenienced by having to look for an alternative provider, an alternative venue or an alternative person to solemnise their marriage should be avoided where possible, but that the harm of saying to somebody, who has an individual belief or conscientious position, that they must completely put that aside, give up their business or leave their profession is a far more profound harm than somebody who perhaps is inconvenienced and has to find another provider. Would you have a comment on that?

Ms McLeod : Just that that is obviously an interpretation of what it means to exclude someone from goods and services—that it is simply an intrusion or an inconvenience. The jurisprudence—and I have pointed to the Yogyakarta Principles—suggest that there is something much more profound to refuse someone a good or service based on their very identity, and that this is something inimical to human beings. Who they are, their sex, their gender, their sexual preference or orientation and their gender identity is something intrinsic to human beings, so it is something much more than a matter of inconvenience.

CHAIR: But our own senior courts, as well as international jurisprudence, have identified that somebody's religious belief is also central and core to their being—

Ms McLeod : Yes.

CHAIR: and that to deny them that identity is of equal harm because it is an absolute in the case of forcing them to do something against their will. My last point for you to consider, and perhaps come back to the committee on, is: in Canada, Saskatchewan have come up with a solution called a 'single entry point'—for example, somebody seeking a registrar to conduct a service, rather than approaching an individual business or licence holder, would approach a local authority. That authority would have a list of people who provide unrestricted services or some who have particular reasons they do not want to perform a service. The person would never be offended or feel harmed because they would just put an application in to the local authority, and the authority would say, 'Here is a panel of four or five who are in your area who could fulfil that function.' Do you see that that is the kind of balance that may achieve the freedom of the person's religion but also not offend or harm the person of the same sex who wishes to marry?

Ms McLeod : I will certainly have a look at those and let you know, but I should make absolutely clear we do not in any way suggest that freedom of religion and expression of religion are not crucially important values as well that we should be looking to balance correctly. I do not know how effective the single entry point has been or has shown to be. However, the international human rights law is that, once you enter into the commercial arena offering goods and services, that is the point at which you should be restrained if you are seeking to impose a discriminatory regime upon others.

CHAIR: I will finally point out that that does not apply here in Australia, and we are seeing TV channels refuse to play advertisements on a commercial basis from the Australian Marriage Alliance. We have seen printers refuse to print books by people like Dr van Gend because they do not agree with his position on traditional marriage. So there appears to be quite a disparity between that principle that you espouse in your defence of one group versus your defence of others who perhaps have a slightly different view. Anyway, I will go to Senator Pratt.

Senator PRATT: Thank you very much. I just want to acknowledge that Senator Rice has also joined us today. The Sex Discrimination Act carves out exemptions for religious organisations in any case. I wanted to ask the Law Council—and perhaps other witnesses might also think about this question—about the overlap of the two sets of exemptions if this were implemented into law, with exemptions already provided for within the Sex Discrimination Act for the purpose of religious organisations.

Ms McLeod : Can I pass that to Mr Gardiner—

Senator PRATT: Yes.

Ms McLeod : who has not actually made his own statement yet.

Senator PRATT: That is fine.

Mr Gardiner : I will come back and make an opening statement in a moment.

CHAIR: Very, very brief, I am afraid.

Mr Gardiner : On this question, yes, there is an overlap. The Law Institute's view on the Sex Discrimination Act itself—when considering the adding of sexual orientation and other attributes to the Sex Discrimination Act, it was opposed to an unnecessarily broad exemption as now exists. The Law Institute takes the view—I think the Law Council also does—that the existing section 47 of the Marriage Act contains a constitutionally necessary and sufficient protection for religious freedom by not imposing religious observance on anyone, ministers in particular, and that that is necessary under section 116 of the Constitution but also sufficient. In relation to where the boundaries should lie, the statement of Acting Chief Justice Mason and Justice Brennan in the Scientology case, after referring to what they consider the indicia of a religion are—belief in supernatural beings and principles and so on—go on to say:

… canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.

In 1961, when the Marriage Act was written and section 47 was written, perhaps discrimination did not offend against the ordinary laws, but it certainly does today. That is probably enough for a quick answer.

Senator PRATT: I am actually keen to see whether we have time to hear Mr Gardiner's statement.

CHAIR: We do, but the more time you take for the statement the less time we have for questions.

Mr Gardiner : I shall be quick. First of all, I would like to thank the Senate committee for inviting the Law Institute of Victoria to attend and to assist you in your consideration of the exposure draft. I appear here today as a representative of the Law Institute, along with Rebecca Park, Secretariat to the LIVout working group. I am a member of the Law Institute's LIVout working group and the human rights and charter of rights committee. I am also, currently, a vice-president of Liberty Victoria, in which case you will hear me again later on, and a member of the Victorian government's LGBTI task force.

LIV has contributed to the Law Council's submission and is mentioned several times in there and, therefore, the Law Institute did not make a separate submission. As a longstanding advocate of equality before the law—and the rule of law, more generally—the Law Institute welcomes the release of the exposure draft because it would amend the Marriage Act to allow for marriage between two people regardless of their sex, sexual orientation or gender identity.

The Law Institute holds that the 2004 definition of marriage, which was amended in 2004 to be just between a man and a woman, contravenes the notion and the attainment of equality by preventing lesbian, gay, transgender and intersex persons from marrying—or some of them, at any rate. The Law Institute supports the principal aim of the bill contained in that exposure draft but we are concerned that some provisions continue to allow and, indeed, encourage discrimination against gay, lesbian, intersex and transgender persons. In particular, we share the Law Council's concerns regarding the proposed exemptions for, for civil celebrants and religious ministers on the basis of conscientious belief, and for religious bodies and organisations in the provision of goods and services. I will just mention a couple of the issues that the Law Institute particularly focused on and contributed to the submission.

First of all, as I said at the beginning of my answer to Senator Pratt's question, current laws are sufficient to protect religious freedom. The Marriage Act as it stands does not require any minister of religion to solemnise any marriage. It cannot be overridden by the Sex Discrimination Act or anything else because, ultimately, it is backed—although it does not say so—by the Constitution. Therefore the proposed clause 47 of the draft bill is unnecessary. It has no legal effect, because an absolute no requirement to solemnise religion—adding a stated reason adds nothing at all. One has to wonder what the ulterior emotive is for doing that. The answer is perhaps obvious: that singling out of marriage other than that between one man and one woman contravenes the notions of equality that the bill aims to achieve.

Many of these provisions that we suggest to the committee should be removed from any bill that is actually presented to the parliament are ones which are inconsistent with the primary purpose of the bill. By becoming a legislative statement of continued discrimination, such a statement continues and fails to address the climate of discrimination in this country, which still exists and is still a serious problem in our society.

One position which the Law Institute has advocated, which is not expressly in the Law Council's submission although it is mentioned, is that in addition to the very proper provision in the draft bill for the recognition of foreign marriages and the repeal of section 88EA of the Marriage Act there is no provision for dealing with people who have publicly declared their commitment to a shared life prior to the passing of the ultimate marriage equality bill. We believe that should happen and it should be based on the primary ideas of the binding nature of marriage—marriage, after all, is a civil institution—a mutual commitment to a shared life is voluntary—obviously the usual rules about not already being married to someone else or not marrying your brothers and sisters—that it be public and that it be marriage for life.

Those ideas are contained in some of the state and other registration schemes and provide prima face evidence—in fact, conclusive evidence—of a couple's commitment. If a couple wants to get married now, who have made a commitment—whether in the state registry or other registry or simply before the public, friends and family, with witnesses—they should be able to have that registered now as a marriage for whenever it took place. That is including, for example, the two couples who were married in Canada in 2003 and who sought the Family Court's approvals of their marriages were valid in Australia, which triggered the rush to legislate in 2004 to cut those cases off before they full court of the Family Court ruled that they were valid in Australia, which I have no doubt would have happened. That is an addition that we would like to draw to the committee's attention. It is mentioned in paragraph 22 of the Law Council's submission as well. Thank you to the committee. I hope, Senator Fawcett, that I was quick enough on my introduction and we will go back to questions.

CHAIR: Thank you. I will go back to Senator Pratt. Just so you know, we have got eight minutes between you and Senator Kitching to complete questions.

Senator PRATT: I have just got one question before handing over to Senator Kitching. The application of a carve out like this is applied to create the set of exemptions within this act. I wanted to ask about some of the apparent contradictions that appear to me in doing it in this manner. I am not sure if you would have had a chance to think about them. For example, there is no carve out within the Marriage Act to allow religious celebrants to discriminate on the basis of age currently, even though that might equally offend someone's set of moral or religious beliefs. For example, if you had a 70-year-old man marrying a 19-year-old woman, who was a newly arrived migrant. There are some other complexities around purportedly creating a carve out, which allows you to continue to discriminate against same-sex couples. If you are a transgender person who has legally changed sex, you would no longer legally be considered to be same-sex in any case and discrimination against your participation in a marriage would still be illegal under the way this particular law is drafted. Could you comment on some of those factors, perhaps?

Mr Gardiner : The notion of a carve out for particular reasons, like not being one man and one woman on some people's definition, is completely unnecessary. Section 47 says there is no obligation on a celebrant, being a minister of religion, to carry out any marriage—full stop. It does not need to say, 'And we're particularly keen to stigmatise intergenerational marriages. We're not particularly keen to stigmatise the remarriage of formally divorced persons,' which is one of the most common applications of that section 47, I understand, in practice. There is no reason for a carve out. It is absolute. It is there, we believe, because the Constitution does not permit a law to impose a religious observance and since ministers of religion are doing the work of the state in the middle of a religious ritual, while conducting a religious observance, it would be absurd and certainly unconstitutional for the Marriage Act to say otherwise and for any other act, state or federal, to say otherwise.

Senator PRATT: And what about the case of celebrants, in relation to some of those?

Mr Gardiner : In the case of celebrants, they have signed up for a job. They are independent contractors, carrying out a function of the state. Marriage in Australia is a civil union. It is not religious, although it allows religious bodies a licence to conduct civil marriages within the middle of a religious ritual.

There are countries where they do not do that at all. In France, for example, and several countries of Europe, the state does the marriage. If you want a religious ritual, that is separate. They are separate. Perhaps that is what we should have here. We are not advocating that at the moment, but we say that the role of celebrants is undeniably to conduct civil marriage.

The law of civil marriage—which the current definition of marriage is, in fact—should not make distinctions on a religious basis. Therefore, there should be no religious exemption for civil celebrants. If there were, why would it not cover intergenerational marriages, marriages of divorced people, interfaith marriages—or, if we still had the Reformed Presbyterian Church in South Africa, interracial marriages? But I believe that church has found a new revelation since the end of apartheid. But there are a number of religious exemptions which religious celebrants are permitted because they are doing a religious observance and putting a civil union in the middle of it.

Senator KITCHING: I have two clarifying questions—one for Ms McLeod and one for Mr Gardiner—and then something I would like your comments on. Ms McLeod, you referred to where there are legal consequences. Certainly there were changes to the superannuation legislation to recognise same-sex relationships. For example, the superannuation goes to the other member of a couple if someone died. Are you saying that there would be a clarifying statement in the Income Tax Assessment Act saying 'if the Marriage Act allowed it' rather than having to go through individual pieces of legislation to understand and think through where changes may need to be made?

Ms McLeod : Yes, indeed, because the regimes would not be in lock step. The best elucidation of this is in the Human Rights Law Centre submission, which traces through the impact, at least in a light touch, of superannuation laws, tax laws, previous Family Court decisions and so on. So we do not want to, by introducing new legislation, potentially create criminal penalties for people for noncompliance.

Senator KITCHING: I am thinking that, obviously in terms of tax, people are endlessly ingenious and that there are consequences to the Income Tax Assessment Act we sometimes do not see. It is a very complex piece of legislation.

Ms McLeod : Yes, particularly in terms of cohabitation and de facto couples.

Senator KITCHING: Mr Gardiner, you have said that where there is a shared life you feel that that should be recognised, or do you feel that people would want to formalise that if the changes to the Marriage Act came through? Are you saying that where people have, perhaps in front of family and friends, agreed to 'have a shared life'—those were your words—they would then seek to formalise that? Or are you suggesting that that should be enough down the track and, if there are legislative changes, those ceremonies would also be recognised?

Mr Gardiner : The suggestion is that, where people want to get married who have already made a commitment, especially and most easily one that has been registered in a state or other registry—obviously that makes it easier because there is a document—then in allowing them to be married the law should provide an opportunity for them to effectively convert their original commitment to a marriage. They should be able to record the date of their commitment as the date of their marriage anniversary in due course. Not everyone would want to do that. There are lots of people who regard marriage as antiquated or something that they specifically do not want to have, in which case they would never have wanted marriage. But the ability to have a marriage, if you want it, is important, so it is something which, if a couple who have been together—whether it is for two years or 25 years—have done so in a formal way, such as the registries or such as some other formal way, then they should be able to be recognised as married in Australian law and as having been married from then—just as this exposure draft bill would allow people who did get married in other countries to be regarded as marriage from the date they got married.

Senator KITCHING: I want to ask you both a question. I looked at some of the state discrimination acts, and in some of those—let us say there is a job ad for an Indigenous community or for certain organisations. Often you might see an exemption number in that ad. What if the act allowed it as it is in the exposure draft, but then had a schedule where if you were providing a commercial service but you did not want to provide for same-sex couples you could then apply for an exemption and be listed in a schedule?

CHAIR: Can I ask you to answer this very briefly. If you want to give more details, then you can put it on notice and we will be very happy to receive that.

Ms McLeod : In terms of legislative drafting, you would be creating an exception to an exemption, which would create difficulty in terms of application. That is the short point.

Mr Gardiner : My short answer to that is that there is a process, for example, under the Victorian Equal Opportunity Act for people to apply for an exemption at VCAT. The accepted jurisprudence for doing that is: it has to be granted, and can only be granted, for a purpose that is consistent with human rights, and effectively similar to what is known in international law as 'special measures', where there is a reason that is for advancing human rights to do it. That is possible. It is done in Victoria, and in most states I think there is some similar version, but it is not an 'at whim' thing. It requires evidence before a tribunal that this is necessary for the restoring or the bringing up of people whose human rights have hitherto been violated.

CHAIR: Thank you. Mr Brohier, I welcome you. We have two broad groups of witnesses. We need to go to Mr Brohier to get the other side of the argument. Mr Brohier, who is here on behalf of the Wilberforce Foundation, welcome; you have just under half an hour now to give an opening statement, and then we will go to questions from the panel.

Mr Brohier : Thank you. I apologise to the committee for my lateness. I arrived back from Perth in Adelaide last night, and caught the first plane. I make five short points in opening. Firstly, human rights is not confined to the right of non-discrimination, but it includes, particularly in this context, the fundamental right of freedom of thought, conscience and religion, which is a freedom not only to believe but also to act on those beliefs. Secondly, the faith and practice identity is integral to those many Australians who propound a religious identity. It is not just a personal belief, but integral to their identity. Thirdly, without appropriate protections and overrides, same-sex marriage, if legalised, will bring the rights of those Australians to live out their identity into conflict because, with the law of the state because of the sex discrimination act and the state and territory acts.

At this point I would just say, with respect to Mr Gardiner, he is wrong to say that there is no need for a section 47. He relies on section 116 of the Constitution. That only applies to the Commonwealth, and the jurisprudence on that is clear. But ministers will be open to actions under state and territory anti-discrimination law if section 47 is not enacted at least in the form that it is. That conflict is already occurring as many Australians of faith identity are facing legal proceedings or discriminatory proceedings for the expression of their view. The challenge for this legislature is to find a proper accommodation between the rights of these two groups of Australians, between the identities lived out of these two groups of Australians. The proper balance, we submit, is as we have set out in our submission. That is the opening statement.

CHAIR: Thank you. Could I just pick up on your comment there that some people are currently experiencing consequences for the expression of their view? Could you give us some examples of where that is occurring?

Mr Brohier : I can give you a number. Firstly, there is the reported decision of Christian Youth Camps v Cobaw, where Christian Youth Camps was approached by a homosexual support group and asked for the use of their camp. They declined because of their religious conviction and they were sued in the anti-discrimination tribunal. The matter went to the full court of the Supreme Court and they were continued to be found to have breached the anti-discrimination act. There is a very strong dissent, and I would commend it to the committee, by Justice Redlich, and I can provide a copy to the committee, which sets out the issue of the importance of religious identity in faith and practice. It also sets out, contrary with respect to what has fallen from the Law Council, that if you enter into the commercial arena it does not mean you lose your right to your religious liberty, and Justice Redlich makes that clear at paragraphs 102 to 105 and following of his judgement.

The second is the case of Archbishop Porteous, and that is referred to in many of the submissions, where the archbishop simply set out Catholic doctrine on marriage, the doctrine that has been from time immemorial, and he was sued in the Anti-Discrimination Tribunal in Tasmania.

In Adelaide, a young student in a major university recently—last year—was asked by his friends what he would do if he met a homosexual man or woman. He said, 'I would be loving and kind, but I would not agree with their conduct.' He was reported to the university. He then offered to pray for a fellow student who was feeling stressed, and that was agreed to by the student, but he was reported. He was then given some warnings not to speak to the student that he had prayed for. He thought he had the right to do it in a class situation, and in the legitimate class situation he spoke to this person. He was reported. He was suspended. And he was allowed to come back on the basis that he underwent two weekly re-education classes this year. That was challenged, and that has since been changed.

Last year an Australian public servant who had complained because of what he perceived as pressure to take part in a pride march was put on a disciplinary warning. He then received a number of emails from the LGBTIQ support network and he responded asking for his name to be removed because he found them offensive. He was issued a notice to show cause why he should not be disciplined. Again, that was challenged, and that was withdrawn.

A teacher in the Northern Territory outside of school of hours was involved in a discussion about same-sex marriage, and he made a comment on Facebook. Because of his comment outside school hours he was issued a notice to show cause why he should not be disciplined, and that is under dispute at the moment.

In this state, in Victoria, a man—if you will just bear with me, Senator; some of these matters are privileged, so I have got to check what I can reveal and what I cannot—

CHAIR: If you would like to put things on notice, that would also be fine.

Mr Brohier : I can deal with that. His name is Lee Johns. His company did the IT for the Safe Schools program. He did that. In a group meeting he was then asked what he thought of the Safe Schools program. He said he did not agree with it, but he was happy to do the work, and he was sacked for causing an unsafe work atmosphere. In Adelaide a Christian ministry shop called Sanctuary Surfers had some T-shirts displayed in their front window which had a picture of a Queen of Hearts on the T-shirt with the words 'Love is a choice'. A columnist wrote in an article in The Advertiser saying that was offensive to same-sex attracted people and he had his business come under considerable pressure. They are some of the matters that are going on at this moment in Australia. Often they are simply because of an expression of a view. That is the answer.

CHAIR: Thank you. You have touched a fair bit there on individuals. Many of the submissions highlight that protections exist for churches and religious ceremonies within churches. From your understanding of the ICCPR and the Universal Declaration of Human Rights, are those rights also extended and are they predominantly intended to be for individuals as opposed to organisations?

Mr Brohier : That is right. They are predominantly personal rights. Again, there is a significant discussion of this issue of how much personal human rights can be attached to corporations, in the case of the CYC and Cobaw, and the majority said it did not attach to the religious corporation and Justice Redlich said it did. What is clear from that case is that the burden of these rights are attached to individuals.

CHAIR: The discussion also in many submissions goes to the fact that a minister who is performing a rite in accordance with the dictate or doctrines of his or her church should be exempt. In your experience, do all churches explicitly highlight their position on same-sex marriage and are there cases where a minister may have an individual conscience or belief that is at odds with the doctrine of the broader organisation?

Mr Brohier : Again, the case of CYC is instructive because there the only specified doctrine of the Christian Youth Camps, or the denomination under which it sat—the Christian Brethren denomination—was that it believed in the inerrancy of scripture. That was the stated doctrine, and the majority found that was not enough to find a teaching that homosexual practice was contrary to the doctrine of the church. The minority found that it did. Justice Redlich said at paragraph 82: 'The content of a specific religious doctrine, principle or belief will not commonly include guidance, let alone direction, as to how it is to be applied in practice. The adherent to the faith must look beyond the bare statement of those principles as to the circumstance in which the principle requires uncompromising obedience.' That sets it out well. The other paragraphs include paragraph 86: 'Most expressions of faith do not subscribe to an exhaustive list of explicitly stated moral commandments. Rather, they are required to behave in a manner which is consistent with religious principles.' So the tenor of that argument is this: you may not find in every denomination an explicit set of principles covering every issue or, indeed, this issue, but every minister or every person of a faith identity should have the right to act in accordance with their conscience as dictated to by their faith identity.

CHAIR: In paragraph 4.4.10 of your submission you refer to comments by Mason ACJ and Brennan where they quote a US case. They say:

Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs.

Do you put forward to the committee that the state is not actually a fit and competent body to interpret the religious beliefs of an organisation or a person?

Mr Brohier : The state can only do it through the courts, and the courts are clumsy at dealing with genuine religious conviction. Justice Redlich said at paragraph 87 of CYC:

Neither human rights law nor the terms of the exemption—

that is the Victorian exemption, section 77—

required a secular tribunal to attempt to assess theological propriety. The Tribunal was neither equipped nor required to evaluate the applicants' moral calculus.

For example, a theological issue might be whether the doctrine of predestination overrides the doctrine of human free will. That is a lively theological debate between the Calvinists and the Arminians. No court can decide that. Similarly, in our submission, no court can decide whether the proclamation of Jesus Christ in the gospels that 'for this cause shall a man leave his father and mother and cleave to his wife' requires a minister not to support same-sex marriage or not, because that is a matter of religious faith and conscience.

Senator PRATT: Is it possible for you to bring to the committee which cases you are referring to in relation to those issues with exemptions that you were referring to before?

Mr Brohier : Do you mean something in writing?

Senator PRATT: Yes, if you could take that on notice.

Mr Brohier : I can give you a memorandum, yes.

Senator PRATT: That would be terrific. So, the issues before this committee are somewhat familiar to the parliament in that there was a lively discussion during the attempts to consolidate our antidiscrimination acts. And I seem to recall that you may have been involved in the Wilberforce Foundation probably putting submissions to similar effect at the time. I am interested in the fact that the cases to which you refer do not seem to have a particular bearing on the exemptions that are provided for within the act before us and that you are more or less referring to a range of detentions that exist within antidiscrimination law about the fact that religious freedom is provided for via exemption and is not an individual attribute in the way that other attributes are within antidiscrimination law. Would you like to comment on that for us, please? And if there is time, Mr Gardiner and Ms McLeod might have the opportunity to do so also.

Mr Brohier : I would respectfully disagree. The case of Archbishop Porteous is exactly on point with this issue, because what the Archbishop did was distribute to his flock a document that set out the Roman Catholic teaching of marriage. That was the conduct which was thought to be sufficient by the Anti-Discrimination Commission for proceedings to be issued.

Senator PRATT: Is that a state commission?

Mr Brohier : Yes.

Senator PRATT: That is the Tasmanian commission—

Mr Brohier : Yes.

Senator PRATT: which is not an expression of the law that is before us now. To my understanding, the exemptions would provide, under federal law, for the conduct that you are referring to—be that right or wrong, but that is my understanding of the law.

Mr Brohier : I do not follow. What we are propounding is that the act make it clear that it covers the field so that ministers, for example, who make a choice based on their religious conviction will not face proceedings under the state antidiscrimination acts and will be able to rely on the Commonwealth act for protection.

Senator PRATT: Okay, I see the point you are making. Could you also comment on the expression of antidiscrimination law via exemption versus a religious freedom as a substantive right?

Mr Brohier : We would respectfully propound that the antidiscrimination regime generally has gone off track here, and that is a position I think we have argued in the past. There should be a recognition of the fundamental right of freedom of thought, conscience and religion as an override to antidiscrimination legislation. That has been our position for a while.

Senator PRATT: Thank you.

Senator KITCHING: Thank you for your submission. You quoted Justice Redlich. I want to go back to that. Are you suggesting that a provider of commercial services would have to have a religious belief that they would not have to provide those services?

Mr Brohier : No, I am suggesting that the right is a right of thought, conscience and religion. Your conscience, which may be informed by religion and may be informed by other convictions, should give you a liberty in this area. Justice Redlich said at 102:

… in balancing rights human rights law has in general given less precedence to religious belief in the marketplace.

So that is somewhat similar to what the Law Council is saying. But then he said:

But under human rights law, even in the commercial sphere, it may be necessary in some circumstances for religious belief to prevail over other rights.

And he referred to the case of Brockie, which is a Canadian case. That was a printing case. A printer was asked to print some material that he found offensive. The court held:

… this order shall not require Mr Brockie or Imaging Excellence to print material of a nature which could reasonably be considered to be in direct conflict with the core elements of his religious beliefs or creed.

So what Justice Redlich was saying there was you should not compel a person to act contrary to his or her core beliefs even in a commercial sphere. We would say it should not just be religious; it should be conscience as well because there are many people in this area who will have a view about same-sex marriage which is not religiously motivated but comes from other factors.

Senator KITCHING: That could be a very wide field.

Mr Brohier : It could be.

Senator KITCHING: Because I am also thinking that there are people who might be conscientious objectors, so a printer might, for example, say, 'I don't want to print antiwar material.' If this legislation comes to pass, I would not want to see a society where people are saying, 'I'm doing five floral arrangements on this day so therefore I am too busy to do another one,' and they are hiding behind that. It is in some ways a commercial reality as well. I actually think society loses from that kind of position as well because that is in a way discriminatory by silence by not doing that, but to be very broad to have a conscience belief, that could be anything and that would be problematic as well on the other—

Mr Brohier : This is not easy, Senator. If this legislation is enacted and you have a conflict between the law of the state and deeply held views of people, in our submission the legislature has to grapple with that and come to some accommodation. How you do it is not easy. I respectfully agree with you: some of what I have said may be too broad, but in my submission it has to be addressed and it is not addressed by simply saying, 'Forget about any exemptions; forget about any overrides or any protections.' That is not going to deal with the issue. What you will create is something like what you said.

Senator KITCHING: Thank you.

Senator PRATT: Senator Rice has forwarded me a question to ask Mr Brohier. If conscience is grounds for civil celebrants to discriminate, do you consider that it is also okay to discriminate on the grounds of race, age and other attributes?

Mr Brohier : No, because it has never been the law in Australia that race is a distinguishing feature for marriage, it has never been in the English tradition that race is an issue for marriage and it has never been in English law that age, apart from minority, is a distinguishing feature for marriage.

CHAIR: Can I take you to the point of the individual liberty to exercise conscience. The article is quite clear and some of the jurisprudence you have highlighted is quite clear. Is it your contention, then, that, were legislation to be passed for same-sex marriage, when it comes to the actions of people, whether they be celebrants in the church or in the marketplace, there needs to be a balancing of the harms across all three of those areas, as opposed to just people working within the confines of a religious organisation and an overtly religious rite?

Mr Brohier : Yes. That is what we have submitted, at paragraph 6, where we have highlighted:

The Bill does not provide any protection for those who are not clergy and yet whose faith or conscientious commitment to marriage as being, and only being, between a man and a woman will compel them to refuse to allow their facilities to be used for, or provide goods and services for, a same-sex marriage.

In our submission, if you look at this broadly, the parliament cannot ignore that there are lots and lots of Australians who are sincerely opposed to same-sex marriage as a conviction that this is not what marriage is. Those people should not be labelled as illegal discriminators; they should have the right to exercise their conscience in the marketplace. This goes back to the central proposition of our submission. Their religious conscientious identity is just as much a part of their identity as a person who identifies as a same-sex attracted individual. Justice Redlich touched on that in his judgement, at paragraph 106:

There is an unfortunate irony in the argument of Cobaw—

That was the same-sex organisation—

and the Commission seeking to distinguish between freedom to believe something and the manifestation of those beliefs. It is redolent of the same problematic and unfair differentiations between identity and conduct, and between public and private that have been used in the past to oppress those with same sex orientation.

Just as people who support same-sex marriage assert their right or their identity, people of faith assert their identity not as a personal belief, which is some of the flavour that comes out in the submissions contrary to our position, but as an integral part of their identity and their being. That is the issue the parliament has to grapple with because those Australians are just as entitled to their full rights under the Constitution and their rights to live out their identity under the Constitution as Australians who assert a right or desire to have same-sex marriage.

CHAIR: The time is now a quarter to, which is the end of the session for this group of witnesses. I thank each of you. Miss Park, I apologise for the fact that we ran out of time. If you wish to make any supplementary submission in writing please feel free to do that. If you have been asked to take anything on notice or wish to make any supplementary comments, we do need those within one week, given the reporting deadline that the committee secretariat has to work with. Don't blame the government: we did not write the terms of reference. It is a very tight time. One week, and we would welcome any further comments you wish to make.

Senator PRATT: Chair, I sought to ask Mr Gardiner and Ms McLeod a similar question to that I asked Mr Brohier about the way religious rights sit alongside other attributes within our antidiscrimination law. If they are in a position to provide that information to the committee I would be interested in that.

Mr Gardiner : We would be happy to do so.

Senator PRATT: Thank you.

Mr Brohier : In relation to the issue that Senator Pratt raised, when will the email come from the committee?

CHAIR: We will get back to you today.

Mr Brohier : Thank you.

CHAIR: Thank you very much.