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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

COOPER, Ms Natalie, Member of Steering Committee, Equal Voices

MASCORD, Reverend Dr Keith, Steering Committee Member, Equal Voices

MAYMAN, Reverend Dr Margaret, National Executive Member, Uniting Church LGBTIQ Network, Uniting Church in Australia

OH, Mr Benjamin, Chair and Co-Convenor, Rainbow Catholics InterAgency; Chair of Advisory Board, Australian Catholics for Equality; Chair, GLBTIQ Interfaith & Intercultural Network

[09:49]

Evidence taken via teleconference

CHAIR: Thank you very much for joining us and for your submissions. I invite each of you to make a brief opening statement, should you wish to do so. I would highlight that we have less than 45 minutes, so the longer your opening statements the shorter we have time for questioning.

Mr Oh : I am actually one of the organisers of Australian Catholics for Equality. Australian Catholics for Equality is a grassroots collective of Australian Catholic Christians organising to advocate for the rights and dignity of LGBTIQ members of our community. The Rainbow Catholics InterAgency for Ministry is here to build relationships, develop, pray and educate in advocating for human rights, for equality and justice for LGBTIQ Catholics, their families and allies in the Catholic Church and the larger community.

Today we are speaking to the Senate because we want the Senate to be fully aware that the majority of Catholic Christians in Australia support marriage equality. We do so because of our religious faith and teachings of social justice, which promote the dignity and equality of all people regardless of their sex, gender, sexual orientation or intersex basis. Civil marriage equality is about the celebration of love between two committed people, regardless of the agenda under civil law. Two loving couples committing to love and care for each other is beneficial for the common good.

Provisions in the current Marriage Act already give Catholic religious ministers the right to permit or refuse to conduct marriages that do not adhere to church policy. Voices of the majority of Catholics support civil marriage equality because they respect their LGBTIQ siblings, friends, families and colleagues both within and beyond our church. Catholic family members especially believe that this will strengthen their families who are often torn apart by the prejudice and discrimination caused by homophobia and transphobia. Furthermore, Catholic supporters of marriage equality believe that the inclusion of same-gender couples in civil marriage law will strengthen fairness and equality in our democratic, pluralistic, multifaith and multicultural societies who respect religious freedoms, including religious freedom of those who support marriage equality.

LGBTIQ Catholics continue to be discriminated against by sections of church and society, even though our Catholic faith prohibits discrimination of LGBTIQ people. Homophobia and transphobia remains rife in our church and society, including from leaders of both church and the wider society. It must be challenged and eradicated. Continual denial of the equal rights of LGBTIQ couples under civil law exacerbates this. Religion has been frequently used as an excuse to vilify and discriminate against LGBTIQ people and same-gender couples. That is why the proposed exemptions in the bill seeking to single out of LGBTIQ Catholics as a category for special discrimination, in the name of religious freedom and conscientious objection, is unnecessary, unprecedented and dangerous.

Like many of our Catholics, our fellow Catholic and Catholic majority countries, such as Spain, Portugal, Brazil, Luxembourg, Malta, Argentina and Ireland who believe and have legislated for civil marriage equality, we also elected representatives in this parliament to legislate for marriage equality without any further delay.

CHAIR: Thank you very much. Dr Mayman?

Rev. Dr Mayman : Thank you for the opportunity to address the committee. I am speaking today as a member of the national executive of Uniting Network. Our vision is of a church community in which our gifts are shared in all areas, and our loving relationships are upheld and affirmed. As part of that vision we are also advocating for equal treatment of LGBTIQ people and their families under Australian law. This is an intrinsic aspect of our faith. Like the majority of Christians, the majority of Uniting Church members support civil marriage equality, and UnitingJustice has previously supported a change to the civil law to permit same-sex marriage.

I am also the minister of Pitt Street Uniting Church in Sydney. In my role I act as a marriage celebrant. Our church regrets that currently Australian law means that we cannot treat all couples equally, regardless of sex, gender, identity or sexual orientation. We believe that marriage allows for public recognition and social support of couples in loving and committed relationships. It is a social and spiritual good that should be available to any two people who want to make this commitment. We believe that children being raised by LGBTIQ parents deserve to have their families legally protected and socially recognised.

Personally I am married to my female partner under New Zealand law. I am grateful that our marriage gives me equal protection under the law in 23 countries around the world and in three states in Australia. I am also profoundly thankful that our family and friends and our church community were able to celebrate our marriage with us through a public, religious ceremony and a celebration that provided a memorable opportunity for expressions of love and support for us as a couple.

Regarding the law being considered by the committee, Uniting Network affirms enthusiastically the intent of the legislation to replace the words 'a man and a woman' with 'two people'. We affirm the existing protection in the 1961 Marriage Act that allows religious officiants to exercise religious freedom regarding whom they will marry. As a marriage celebrant I have exercised the freedom in refusing to marry a couple where I knew there was ongoing physical and emotional abuse of one partner by another. Other religious celebrants have permitted or refused marriages for other reasons. None of these reasons need to be itemised in the law given the broad grounds of religious freedom that are already enshrined.

As stated in our submission, we do not support extending exemptions beyond religious officiants. The role of civil celebrants provides a secular alternative to religious marriage. There is no justification, in terms of religious freedom, to allow specific discrimination against a particular group of Australian citizens. Our other key concern is the lack of definition in the proposed legislation of the phrases 'religious bodies or organisations' and 'purposes reasonably incidental to the solemnisation of marriage'. We are concerned that enshrining particular discrimination in law would be deeply offensive and would set a dangerous precedent in Australian law. Thank you for the opportunity to share those thoughts.

CHAIR: Thank you very much. You cannot see this, but I have a list of nametags across the table in front of me, and, Ms Cooper, you are next. Please give an opening statement, if you wish.

Ms Cooper : Thank you for the opportunity to present to you today. Equal Voices is a non-denominational movement of Australian Christians from a wide variety of Christian backgrounds. We share the conviction that we in the church have often failed to be Christlike to those who are lesbian, gay, bisexual, transgender and intersex. We seek to address this harm. At the outset we wish to recognise that there are diverse views among Christians and others of faith around the issue of marriage. We welcome dialogue on this and other matters of faith and inclusion.

Our submission focuses on the anticipated effects of proposed section 47B, which provides exemptions for religious bodies and organisations in the refusal of goods and services for purposes reasonably incidental to the solemnisation of same-sex marriage. Two dangers arise: 1) the term 'religious bodies and organisations' is not defined; 2) the term 'purposes reasonably incidental to' gives rise to unprecedented discrimination in the provision of basic human services.

As to 'religious bodies and organisations', being not defined such entities may include not only those with the express purpose of advancing religion such as churches, but commercial and not-for-profit entities operated by religious institutions and individuals. However, the connection between the provider of the goods and services and the religious body is not defined. There is no requirement that the entity be owned by religious body in any definition around what constitutes religious. For example, what percentage of the board or ownership need to be affiliated with the religion for the entity to be a religious body? How many owners need to be affiliated with the religious body in order for the business to be a religious service?

As to purposes reasonably incidental to, the common definition of 'incidental to' is 'liable to arise as a consequence of'. Claims may therefore be made that goods and services arising as a consequence of the marriage are covered by section 47B, such as housing, health care, education, financial planning, financial services, aged care and child care. At any point during a couple's marriage, the argument may be made that these basic human goods and services arrive as a consequence of the marriage. This proposed amendment invites legalised discrimination against same-sex couples and their families, such as would never be tolerated against any other section of the community. It sets a dangerous precedent for further discrimination in law on the basis of sexual orientation alone. Thank you.

CHAIR: Thank you. I am taking it that you have provided that statement on behalf of Equal Voices?

Ms Cooper : That is correct.

CHAIR: I will just go quickly to questions. I would invite short answers, because we have got three senators here to ask questions and only 15 minutes, so we will try to be fairly brief. Mr Oh, you have made of comments there about the majority of Catholics supporting your position. I am just wondering how you have come to that figure and how you have measured that?

Mr Oh : Over several polls. I think poll after poll has suggested very clearly that Australian Catholics—I think the Crosby Textor one was one and the Compass one was another one in the lead-up to the election. In my work in ministry, that has also been the case. With parishioners and people who we have worked with—whether they are parents, friends or colleagues within Catholic communities—that has been an ongoing reality.

CHAIR: Catholics for Equality, could you give the committee an understanding of how many people you represent and how many are members of your organisation?

Mr Oh : Catholics for Equality is a grassroots movement. We have represented organisers all over Australia. We are largely based online, but we also meet collectively with the Rainbow Catholics InterAgency for Ministry. The Rainbow Catholics InterAgency for Ministry is a collective of different groups that includes a parents and friends group, a clergy group, other Catholic organisers and LGBTIQ organisers who are Catholic, of course.

CHAIR: Sure. I am trying to get some context here. We clearly have the organisational side of the Catholic church appearing tomorrow in Sydney, who represent some hundreds of thousands of Australians. I am just trying to get a feel for how many people your organisation represents.

Mr Oh : Sure.

CHAIR: I am happy to take that on notice if you cannot tell me offhand. Dr Mayman, can I come to your comment about your role as a celebrant. I am interested that you mentioned that you have the discretion to decide not to conduct a marriage if you have concerns. I think you cited awareness of abuse as one reason for not conducting a marriage. Is that correct?

Rev. Dr Mayman : Yes, it is.

CHAIR: I am just wondering, in a case like that where you have elected not to conduct a marriage, what feedback are you required to give to the couple who have asked for the marriage? Does that need to be reported to, cleared or in some way communicated with the state or federal authority?

Rev. Dr Mayman : No, that is an absolute discretion. I was not legally required to give a reason to the couple, but I did in this case, for pastoral reasons, and encouraged them to seek support that would help change the dynamic of their relationship. But there was no legal requirement to tell them and certainly not to report to any government agency or department.

CHAIR: We have had concerns raised by a number of groups about specific provisions for celebrants to not have to marry people of the same-sex or intersex if it offends their religious belief or conscience. With the freedom or the exemption that you already have, do you believe that that would be sufficient and should continue into the future?

Rev. Dr Mayman : Absolutely, because it is on the basis of religious freedom and it does not need to be specified. If the decisions about who to marry or not are religious decisions, they should be made within the religious community and not be included in legislation.

CHAIR: In your written submission you comment—and I think you wrote that it had been published in the Sydney Morning Herald—that no Christians would be harmed as a result of a change to the law to allow same-sex marriage. We heard from a previous witness this morning that already there are Australians who have been sacked from their jobs or who have been disciplined by government departments. Overseas we have seen people who, because of cases that are taken in discrimination proceedings, have been fined or in fact have had to shut down their businesses. I am just wondering how you contend in your comment that no Christians would be harmed, given the overseas experience and in fact the domestic experience that we have seen here in Australia before the law has even been changed.

Rev. Dr Mayman : I think that is the point, isn't it? The law has not been changed, so it is not caused by a change in the law. There are issues about discrimination that are dealt with by other laws, but changing this law does not necessitate that. In other jurisdictions, especially the ones that are closest allies to us, like New Zealand and the UK, there have not been widespread issues of people losing their jobs or other consequences. I know of nothing in New Zealand of this nature and I do not believe there have been any in the UK either, or Canada.

CHAIR: There have been some NGOs in New Zealand, businesses in the UK and individual ministers in the UK. I think very soon after the legislation was passed the religious freedom exemption was tested in court. So there are a number of cases, but thank you.

Rev. Dr Mayman : The basic point is that it is the anti-discrimination law that needs to be dealt with. It is not about marriage.

CHAIR: That goes to the point that perhaps one of our earlier witnesses from the Wilberforce Foundation was making—that there would need to be very clear coverage from the federal government. Discrimination law, as currently enacted by the states, would have to provide very clear protections for people in the realm of marriage, whether or not it mentioned same-sex marriage. I take your point on that, but it would need to provide the freedoms such that people, as individuals or organisations, on the basis of their religious beliefs or conscience, in accordance with article 18, could enjoy protection, as opposed to being faced with action under state discrimination law. Do I take it that you are supporting changes to state discrimination law to protect people who make decisions based on their religious or conscientious objections?

Rev. Dr Mayman : If there is a public inquiry and the Senate welcomed submissions about that, I am sure we would have something to say to that, but that is not what we have been asked to address today.

CHAIR: I must confess my thought was that this whole inquiry was about that very intersection between discrimination laws and the Marriage Act and our international obligations. If you have more you would like to say on that, I would certainly welcome that. Given the time, I am going to go to Senator Pratt.

Senator PRATT: Thank you for your compelling submissions today. I wanted to ask—and I am happy for any of you to take this question—about examples where a celebrant may not want to conduct a marriage on any particular grounds. You have given some examples in relation to abuse. Can you think of other circumstances in which someone may refuse to conduct a marriage?

Rev. Dr Mayman : Obviously in the Catholic context people do that all the time in relation to remarriage after divorce where one partner is still alive. There are many theological concerns that would affect particular denominations.

Senator PRATT: You have, however, carved out preserving the secularity of civil marriage, so, in that sense, there is no right of refusal in the case of pure civil marriage, noting that civil marriage applies to—well, all marriage is civil marriage, but there are those who conduct marriages under recognised religion and there are those civil celebrants with a religious affiliation, separate again from those who conduct purely civil marriage. In the cases you are referring to, which kind of celebrant is conducting those marriages? Can you perhaps draw some distinctions between them in relation to that decision making as to whether a marriage is conducted or not?

Rev. Dr Mayman : I am obviously most familiar with the way decisions are made within the religious context, but I think civil marriage celebrant status was established as a secular alternative and there were no grounds for civil marriage celebrants to be making distinctions on the basis of sexual orientation, for example.

Senator PRATT: But what about age or other attributes?

Rev. Dr Mayman : I think as long as the marriage is compliant with the law then that is the only issue that they need to worry about.

Mr Oh : I suppose, Senator Pratt, one of the realities for Australian Catholics for Equality is: amongst our Catholic supporters are members who are civil celebrants, and many of them conduct civil marriages for Catholics, simply because these Catholics do not meet the prescriptions of the institutional church. Civil marriage for us has that particular use, I suppose. And if the conscientious objections clause gets into this conversation, I think it opens up a whole range of other ambiguities.

The second point I would make is that the provisions under the current Marriage Act already allow religious people who want religious marriages to do so in that manner, and religious institutions already have the power to refuse or allow marriages as they see fit.

Senator PRATT: I have a question in relation to the Equal Voices submission. You say, on page 7 of your submission:

A number of Australian Christian churches wish to solemnise the marriages of same-sex couples, although the national, overarching church parent body would not agree. Pressure may be brought to bear on ministers / churches not to solemnise such marriages, on the grounds of 'avoiding injury'. The effect of the legislation would be interference in the operation of the individual church, contrary to the separation of church and State which underpins Australian law.

Given that religious ministers are not under an obligation to solemnise any marriage currently, are you at all aware of how that obligation extends where, for example, a local pastor does want to marry a couple but there may be a view higher up in the church that they should not? How is that particular example applied to same-sex couples in this instance—noting that the issue may occur not just in regard to same-sex couples, I guess?

Ms Cooper : What we are saying there is that we are aware that there are some denominations—for example, Uniting and Baptist—where currently the overarching national church body gives the individual churches some freedom in certain matters. So, for example, in the Uniting Church, individual Uniting Churches may decide whether or not they will appoint a minister who is openly gay, for example.

At the moment, there are churches which are given a greater degree of freedom to operate as that individual church wants. However, looking at the way that is put in the draft bill, the overarching church body may then intervene and say that the individual Baptist Church or Uniting Church agreeing to marry same-sex couples causes injury to the adherents of its religion, and there is scope in the way the amendments have been written for the individual church to have that freedom curtailed. What we are pointing out is that, when you extend religious objection beyond the way the current Marriage Act states it may happen, you are potentially creating a situation where individual churches have their religious freedoms impinged upon. So an unintended consequence of this bill may be that there is interference in the operation of those individual churches; they are having their religious freedom curtailed. I think the people who have drawn up the exposure draft may not have actually taken that into consideration.

Senator PRATT: I understand what you are saying. In the way the current Marriage Act is drafted, that decision is left to the individual minister who is solemnising the marriage. Is that the appropriate way of dealing with that issue where there may be differing views within the church as to whether a couple should be married or not?

Ms Cooper : I am from a lay background, I am not an ordained minister, but certainly as a church member I understand that the individual minister, rector or pastor of the church has responsibility for their congregation and for the decisions that they see should be made for that congregation. The current Marriage Act provides for a minister to refuse to marry any couple without stating the reason for it. They do not even have to give the couple the reason; Margaret shared an example of where she did so for pastoral reasons. A minister can refuse to marry a same-sex couple now; he or she can refuse to marry any particular couple. Putting these extra amendments into the bill, we believe, may create the unintended consequences of impinging upon the religious freedom of individual churches. It invites discrimination against same-sex couples because you are drawing those people out as separate from any other group. There may be other couples the minister refuses to marry, but they are not itemised here; they are not being singled out against their fellow Australians for particular discrimination. When you then use wording such as 'purposes reasonably incidental to', and do not define what happens as a consequence of that, I wonder whether the people who have drafted the bill have stopped to consider the basic human goods and services that may be refused to a couple on the basis of the consequences of their marriage.

Senator PRATT: So how is that currently managed within a church? If a local pastor is happy to marry, for example, a divorced couple, but the church as a whole might consider it 'an injury to the religious susceptibilities of adherents of that religion', how is that currently negotiated compared to how it might contrast with this proposed law?

Rev. Dr Mascord : Within the Anglican system all denominations are collectives of churches with varying organisations. In terms of the marriage of a divorced couple within the Sydney Anglican Church, ministers are required to ask certain questions and also get the approval of their regional bishop. In other words, a church body may determine a policy with respect to something like a divorced couple because of doctrinal reasons. So it is still in the same ballpark, but the collective will be given certain guidelines. Should a minister decide to go against the guidelines agreed to by the church, there would be consequences in some cases. And other churches are more free and more congregational. That is the current situation. In terms of what Natalie has just said, it may turn to the worse. It may, if this legislation comes into effect as it is—the current legislation is adequate, I think, to cope with that type of scenario.

Senator PRATT: So what you are saying is that the current legislation is adequate to support churches in managing those issues within the law.

Rev. Dr Mayman : The current situation means that it gets worked out as a matter of faith within the faith community. The proposed legislation would complicate that by bringing what is an eternal religious conversation into a legislative framework, where it is completely inappropriate in terms of religious freedom to be doing that.

Senator KITCHING: Mr Oh, I just want to follow on from that question. The Catholic Church has archdioceses. How would you feel if some of the internal organisations of the Catholic Church agreed to same-sex marriage but other archdioceses did not? Could the Catholic Church be divided? I do not really want to use the word 'divided'—but have different responses, perhaps.

Mr Oh : It would not be different to the other conversations within the Catholic Church on issues of divorce, reproductive health, contraception—

Senator KITCHING: Or perhaps some archdioceses are more liberal in the small 'l' sense of that word in terms of granting annulments or encouraging annulments of marriage. So there is not a divorce per se but an allowance so that people can marry even through one party has been divorced within the church.

Mr Oh : What we are arguing here is for civil marriage law. I suppose sacramental marriage remains a conversation within our own church on how that gets articulated. That has nothing to do, I suppose, with the conversation we have in terms of civil marriage at the moment. I have the numbers, Senator Fawcett, on the polls on Catholic support of marriage equality. For the past five years, over 20 polls—whether it is Crosby/Textor, Essential Media or Newspoll—have all shown a majority of Catholics in favour, with support averaging over 60 per cent.

In terms of how the Catholic Church functions, it is probably important to make this point: our church is not ordered like a military hierarchy where someone gives a command and others obey. The bishops, ideally, strive to reflect and proclaim the faith of the whole church. When dealing with issues that concern LGBTI issues, which is a relatively new area of church discussion, the bishops are perhaps not yet able to discern what the Catholic community believes. So it is also important to point out to Senator Fawcett: in terms of the bishops' office making their appearance and presenting their points of view tomorrow, the Catholic Church is more than just the bishops. There are theologians and lay people. In polls after polls it has been very clear that the people of the church are on board and are supportive. That is why Australian Catholics for Equality is present, I suppose.

Senator KITCHING: Ms Cooper or Reverend Mayman, in relation to the 'reasonably incidental to', you have listed in the Equal Voices submission a list of potential areas—for example, aged care, primary health care—on page 59 and 60. I understand the point you are making, but how would you change the wording of 47B in the exposure draft so that the list that you have in that submission is narrowed and what you have listed is not affected? What would you replace 'purposes reasonably incidental to' with?

Ms Cooper : We would actually take that whole section out because this is an insertion into law which goes into providing goods and services outside the actual marriage. It is interesting that section 47B does not refer to the wedding; it refers to the marriage. Purposes incidental to a marriage then, obviously, are all of those things which arise as a consequence of it. So that whole section is problematic. If you want to get down to the actual celebration of the wedding, then at the moment a church can actually refuse to provide facilities or goods and services to the celebration of any particular wedding. A church might, for example, refuse to lease its church hall to a couple who are remarrying after divorce. So we actually think that the insertion of that whole section is problematic and it gives rise to discrimination on grounds that currently would not be acceptable if you were talking about any other group of citizens. If you want to retain something along those lines in there, if you look at 47B(1)(a), 'the refusal is because the marriage is not the union of a man and woman', why not simply take that out and make that particular section refer to all Australians?

Senator KITCHING: Thank you.

Rev. Mayman : Uniting network's executive also believes that this section, 47B, is unnecessary, and we think that silence on these issues, such as currently exists in the '61 Marriage Act, does provide people the opportunity for sensible responses. Human nature being what it is, some people will refuse, but the point of this is that it should not be on the grounds of discrimination that are made obvious or of whom they are discriminating against. There is no need to put that into legislation, and so silence on these issues will probably be the best protection for a harmonious society.

Rev. Mascord : There may be all sorts of conceivable conscientious and religious reasons for refusing to marry someone of another faith or an atheist or someone who is an adulteress, or any number of reasons why you might want, on religious and conscientious grounds, to say no. But what this legislation is doing is singling out just one particular group of people—and, from a Christian point of view, a marginalised and much maligned and hurt group of people—for special mention. Why mention one? To be consistent, to allow religious and conscientious grounds in this case, why not allow them in many others as well? It would be best, as Margaret has said, to leave it aside, I would think.

CHAIR: I want to just clarify. I have family members who could not get married in an Anglican church because one of them was previously divorced, so they went and had a civil marriage instead. So, in regard to the silence that allows a church or, indeed, an individual celebrant to make that decision, what I am hearing is that you would support that continuing forward. The question, I believe, that was in the minds of the drafters, and I was not involved in that, goes to the issue of cases like Archbishop Porteous where, despite federal law supporting his position on marriage, a state discrimination body recommended proceedings against him or said he had a case to answer. I think the drafters are trying provide a protection against that other tier government or other legal proceedings. Can you see a way that we could allow that silence but still provide a protection for people, whether they be a celebrant or a minister of religion?

Rev. Dr Mayman : I think the broader conversation about discrimination law and that complaint against Archbishop Porteous was in regard to a booklet that was circulated amongst schoolchildren. Yes, it was dealt with by the state discrimination body but it was eventually withdrawn. There has been no decision made against a religious leader on those grounds that I am aware of.

CHAIR: Sure, but the book in question was circulated to parents and an individual had to go through such a prolonged case with costs and emotional impacts before it was finally dropped. That in itself says there is a need for the protection of individuals.

Mr Oh : The complainants stated very clearly that they respected the church's view on marriage and that the issue is surrounding language that is being used—and that was not just an issue that was for general LGBTIQ community—the reality is Catholic LGBTIQ people were deeply hurt by that booklet. It was offensive to many Catholics too. I think the point that we are trying to raise here is whether religious communities or leaders have the right to conduct marriage according to what they see fit—they already do have that right. What we are trying to put across here is not complicated: we are asking, as the majority of Christians in this country, for civil law to include same-gender couples in the definition. How religious organisations feel they need to articulate marriage according to either sacramental or doctrinal articulations they are free to do so according to their own traditions and according to our internal conversations.

CHAIR: The time being later than 10:30, we will conclude this section of the hearing. I would like to thank Australian Catholics for Equality, Equal Voices and the Uniting Church LGBTIQ Network Australia for your submissions and for appearing. If you have agreed to take anything on notice, could you please get that back to the committee within one week. We will now take a 15-minute break.

Proceedings suspended from 10:33 to 10:49