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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

KENNEDY, Mr Simon, Research Analyst, Institute for Civil Society

RODRICK, Dr Sharon, Research Analyst, Institute for Civil Society

[11:31]

CHAIR: Thank you for appearing before the committee today. I invite you to make a brief opening statement should you wish to do so.

Dr Rodrick : Thank you for inviting the Institute for Civil Society to submit. We are very grateful for the opportunity to give this evidence. We are presenting in the stead of our executive director, Mark Sneddon, who sends his apologies.

We would like to make it clear from the outset that ICS—the Institute for Civil Society—does not take a stand either for or against same-sex marriage. We really are solely focused on discussing whether the bill adequately protects freedom of religion and freedom of conscience within that same-sex marriage context. We did not want to get into the pros and cons of whether same-sex marriage ought to be introduced. We are assuming that and just addressing issues of protection of freedom of religion and conscience.

Our overall view is that the bill does not do this to a sufficient extent. Our real concern is that as a result of that it does not reduce the likelihood of legal conflicts between those in favour of same-sex marriage and those who hold religious or conscientious objections to it and who believe that marriage is between a man and a woman. We believe that more needs to be done to prevent encroachment on religious freedoms and freedom of conscience while at the same time being very careful not to provide scope for unwarranted discrimination against same-sex married couples. Our concern has been to come up with some submissions that try to balance the rights of all stakeholders in this debate. To that end we would make three broad proposals, which are in our submission.

The first one is that we propose the introduction of a broad, federal anti-detriment provision, which would prohibit both governments and private sector organisations from acting detrimentally towards a person or an organisation simply because they hold or express a view that marriage is between a man and a woman, or who are perhaps associated with a group that holds that view. We are proposing that there be protection for people in circumstances where they want to express a view that marriage is male-female only and where they have not expressed that view in circumstances where they have taken any discriminatory actions. We are really pressing a right not to be discriminated against for holding a view in favour of traditional marriage.

Our second proposal is that we advocate for the introduction of a very limited, very nuanced protection of persons against discrimination, vilification, complaints or actions that might be brought against them, but only to the extent that the conduct complained of is purely an expression of their religious or conscientious belief in traditional marriage. We really want to emphasise that we are not suggesting that people with religious or conscientious objections to same-sex marriage should be permitted to engage in unchecked discrimination against same-sex couples. That is not our proposal. But in the circumstance where to do so would involve them facilitating same-sex marriage or endorsing same-sex marriage in circumstances where they have religious or conscientious objections, we would suggest a very limited right to discriminate.

Our third main argument is that the protections within the draft given to ministers and celebrants need to be perhaps tweaked just to cope with the fact that you have got, in a sense, ministers of religion, their denominations and their congregations which might each have different views on same-sex marriage. I think that is elaborated on in attachment B of our submission. You might get scenarios where the minister is in favour of same-sex marriage, the denomination is not or the denomination might be and the particular congregation is not. To cope with those scenarios, we suggest protections along the line of those accorded in the United Kingdom's legislation. As I said, in closing, our suggestions are really designed to walk that middle ground between respecting people's rights to have different views on same-sex marriage and to stave off legal actions in the hope that we would create a culture of acceptance of a plurality of views on this issue as opposed to a culture of intimidation and adversarial legal action. We are happy to elaborate on any of that or take questions.

CHAIR: I will kick off before I go to Senator Pratt. Could you just detail your anti-detriment provision for us? You say here in your submission that it 'prohibits government and private sector organisations from acting detrimentally'. Can I take it that that is informed—in fact, I know it is because it is in your submission. Would you talk to the committee a little bit more about some of the overseas experience or even domestic experience? We have heard from previous witnesses that they are not aware. They say there is a lot of conjecture out there, as supposed to actual cases. Can you tell the committee what has led to your desire for this anti-detriment provision?

Mr Kennedy : You are right to say that our recommendation is informed by overseas experience. But it is not only that, it is informed by the Australian experience. I am happy to expand on some examples. They are real-life examples: some of them are live and some of them have been dealt with. One has already been raised in the last part of the hearing, which was Archbishop Porteous. We do not necessarily have to go into that, but that would be an example which would be covered by this anti-detriment provision. I will not go into the details, because it has been dealt with. I hope that is okay, unless you want me to expand on it.

Another example recently was an event that was a planned gathering at the Mercure Sydney Airport hotel. This was just in 2016. The function consisted of various Australian Christian groups and organisations. In meeting there, they were aiming to form a strategy in the event of a same-sex marriage plebiscite. That was the scenario for the event. What occurred, once word got out that that was being held, was that there was an online campaign to have function banned. There was threatened violence and protests, to the point that the safety of the staff could not be guaranteed and the hotel—who were not actually endorsing the views of the groups, which is important to point out—actually made an executive decision to call off the event. It was not the groups that decided but the hotel. In this case the focus is actually on the hotel. They do not hold a view on same-sex marriage, so far as we know, and they did not close down the event because of that. They were afraid of the potential for violence, protests and so on. So the provision would cover groups like the hotel in this instance as well.

Moving overseas, there is an example in Canada. There is a university in British Columbia called Trinity Western University. Students and staff at Trinity Western are required to sign a community covenant as a condition of being at the school, and that covenant includes a promise to abstain from sexual activity that is not within the bounds of marriage between a man and a woman. Two things have spun out from this over the past couple of decades. One is that, based on this position, the British Columbia teachers board voted to refuse accreditation to graduates of Trinity's teacher college because they might discriminate against LGBTI students. There were a number of years of litigation and the Supreme Court of Canada upheld that Trinity graduates should be allowed to be accredited, but I emphasise that there were a number of years of adverse action and litigation there. Again, this is not even a debate about redefining marriage. It is just a stated view and associated with that there is this adverse action.

The second example involves the same school. In 2012 Trinity Western applied to open a law school and, based on the community covenant—the same covenant I mentioned before—the Canadian Bar Association, the Law Society of Upper Canada and the Nova Scotia Barristers Society called for the proposed law school to not receive accreditation. Four provincial state law societies voted not to accredit the university. So again you have these actions taken against the university not in the context of a same-sex marriage debate but purely on the fact that they held the view that marriage is between a man and a woman.

A similar example is Chick-fil-A, a sandwich company in the US. They make sandwiches and people enjoy eating them for lunch and so on. They happened to make corporate donations to groups opposing same-sex marriage and its chief operating officer made some public statements opposing same-sex marriage. It was subjected to large-scale consumer boycotts. Some universities refused to allow them to open franchises on the university grounds and on their campuses. Three cities moved to block planning permission for new franchise stores. The Jim Henson Company had a contract to supply toys for some of their children's meals and they pulled out of that on the basis of some of Chick-fil-A's public statements to do with marriage. Instead of continuing the business relationship with Chick-fil-A, they donated the payment from the company to the Gay and Lesbian Alliance Against Defamation. Other suppliers backed Chick-fil-A, but in the end Chick-fil-A stopped donations to the groups opposed to same-sex marriage. Another—

CHAIR: Sorry, I might cut you off, due to time.

Mr Kennedy : That is fine. I guess I was just illustrating the number of examples here.

CHAIR: Sure. I am interested to understand operationally how you would see that working. We have the case here of Dr George, I think it was—a psychiatrist who ended up having to stand down from a state government board because of his support for traditional marriage. We have also had a recent case of an executive from PwC, I think, who had to resign from the board of a Christian organisation that supported traditional marriage. In operation, how would that broad anti-detriment provision work, given it is spanning both government entities and the private sector? Please keep your answers reasonably short, because I am conscious that other senators have questions as well.

Dr Rodrick : In a sense it would work as an anti-discrimination law, only in this situation it would be used to protect the rights of people not to be discriminated against because of their religious beliefs. It would give effect to freedom of religion and freedom of conscience, which are both stand-alone human rights recognised in the ICCPR. It would also give effect to the right of people not to be discriminated against on the basis of religion, under article 26 of the ICCPR. Discrimination cuts both ways. Just as there is a right not to be discriminated against because of your sex or sexual orientation, so there is an equivalent right not to be discriminated against because of your religion. I think all those examples are examples of repercussions for people who have simply expressed a view in favour of traditional marriage, in circumstances where none of them engaged in any actions of discrimination; they simply held and disseminated a view, and were then subject to discriminatory retaliation.

Senator PRATT: You have said that you do not have a position on marriage equality itself, but I am interested in why you would single out the need to provide protection for people within the Marriage Act rather than the whole range of attributes in which the kinds of issues that you raise might apply. You might recall the failed consolidation of our antidiscrimination acts and how we were trying to deal with issues of religious freedom sitting alongside a whole range of attributes. It certainly seems of concern to me that same-sex couples would be singled out in such a stigmatising way by these exemptions without really dealing with the whole range of issues in which these kinds of conflicts might occur.

Dr Rodrick : I take your point, and we might need to give that a bit more thought, but we were really confining our submissions to the same sex marriage scenario and so we have really homed in on that scenario. But I take your point. It can occur more widely.

Mr Kennedy : We are concerned to protect—for example, we are concerned to continue protecting lesbians and gays from discrimination. So this is all in that context. So we really do take your point.

Senator PRATT: In the context of this act, specifically, would you not look to more generalised exemptions that deal with the kinds of circumstances in which you are talking—for example, someone who refuses to conduct a marriage because of a large age difference between those getting married? You know, if I were running around promoting the idea that 85-year-old men should get married to 18-year-old women, and people started discriminating against me for exercising that belief, in very similar circumstances to those which you outline, why should those exemptions be applied differently in those two circumstances within this act?

Mr Kennedy : We are not suggesting they necessarily should not. We are only stating the view in relation to this exposure draft, and the terms of reference were to do with religious liberty. I suppose, if the exposure draft included questions of age difference then we could have a view.

Senator PRATT: We are talking about the exposure draft and the way in which exemptions are applied, so if you could turn your mind to whether more generalised exemption might be appropriate, in the sense that we are looking at tweaking this draft and therefore that question can be applied to it.

Mr Kennedy : I am happy to take that on notice and get back to you if you like.

Senator PRATT: Thank you.

Senator SMITH: I am just wondering, given that I have just had a look at some of the staff at the institute—with obviously strong legal backgrounds—what are the risks in using examples of legal cases in the United States and trying to apply them to an Australian context?

Dr Rodrick : I am not quite sure what you mean in this case by 'risk'.

Senator SMITH: What are the shortcomings in applying examples in United States law to an Australian context?

Dr Rodrick : The issues that have arisen that we are addressing in our submission have arisen not just in the United States but in the UK and other jurisdictions in Europe, and, as Simon said, they have started to arise here as well, in circumstances where people have simply expressed a view in favour of traditional marriage and have been met with legal repercussions for doing so. I do not see that the US experiences are alien to the sorts of risks that might arise here. They might need to be dealt with differently because of the different legal backgrounds of the countries, but I think the risks to people who want to express an opinion in favour of traditional marriage are the same across the board.

Senator SMITH: But you would agree that this goes to the issue of anecdotes and stories that are used on both sides of the argument to prosecute a particular view. What is it about Australian laws that cannot or will not provide enough protection where people might have strong views?

Dr Rodrick : I would say that the right is not currently given sufficient legal protection under our laws because religious belief and activity are not protected attributes in all jurisdictions. We address that on page 4 of our submission. For example, there is no protection of religious belief and activity under, I think, the federal and New South Wales anti-discrimination law and there is no protection for people who are proponents of traditional marriage where their belief is not grounded in a religious conviction but perhaps in a conscientious objection. I think the laws in Australia do not currently give sufficient legal protection to the sort of religious belief and activity that we are suggesting ought to be protected—which is why we have suggested that this anti-detriment provision is really needed to fill a gap in the law.

Senator SMITH: So your concern is not that these things will happen but the international experience—on that, a great majority of your examples are based on the United States experience and not the experience of more similar jurisdictions like the United Kingdom or New Zealand. Your concern is that in looking at the United States there could be issues that need to be resolved, but there is no guarantee that these sorts of issues will necessarily arise in the Australian context.

Dr Rodrick : We think there are issues which are similar that are in the process of arising and have arisen. Simon has mentioned some of them. Others include, for example, a scenario where Facebook removed posts that were expressed in favour of traditional marriage. Simon, would you like to elaborate on that?

Mr Kennedy : There is not much more to say about that, except that a man called John Dixon expressed some views on Facebook about same-sex marriage. They were removed by Facebook and, I think, they may have been eventually reinstated but I am a bit hazy on the outcome. You can see there is adversarial action occurring, whether it is legal or more intimidatory action. Our point is that these things are happening in Australia; they have happened overseas. We are concerned for the state of political or public discourse and of civil society more generally if there are not adequate legal protections in place.

Senator SMITH: When considering an appropriate response, why is your proposal better than the proposition of including religious belief as a protected attribute in federal discrimination law?

Dr Rodrick : I suppose it could be a protected in federal law, but at the moment it is not.

Senator SMITH: To my mind that would be a more sensible proposition to allay some of your concerns, given that the majority of states have protections against discrimination on the basis of religious belief already. That would allow complaints to be brought by employees or others treated unfairly because of their religious beliefs.

Dr Rodrick : Yes, we made the point in our submission that it could be included in this particular bill or in a separate bill or go into anti-discrimination legislation.

Senator SMITH: Thank you very much.

Senator KITCHING: I am very interested in the anti-detriment provision. Do you really feel that that is trying to address the need for a bill of rights?

Mr Kennedy : I do not really have a view on that.

Senator KITCHING: My other question is about how that would interface with 47A and 47B of the exposure draft, because at the end of your submission you say that those proposed sections are inadequate. So how would you see an anti-detriment provision interacting with 47A and 47B?

Dr Rodrick : Depending upon how the anti-detriment provision were worded, it may be wide enough to cover those situations that are addressed and sections 47A and 47B. Those provisions, as you know, only apply to ministers and only in the context of solemnising a marriage. Freedom of religion is not a right that is only possessed by ministers; it is everybody's right. So we would see that as addressing it in that particular context, but the anti-detriment provision is a recognition that everybody has a right to freedom of religion and to express their religious views and that that right needs to be protected. The anti-detriment provision is much broader and may well overlap with those.

Senator PRATT: In addition to that, surely a consumer boycott and whether you are affected by that is a counterexpression of religious view and it would be people's right to undertake such a boycott?

Mr Kennedy : We would agree with you. We would not suggest for a second that people should not be allowed to boycott. We think you are absolutely right.

Senator PRATT: Just for clarification, given your other evidence.

Senator KITCHING: Just to follow on from that, do you feel that there is any limit to a boycott?

Mr Kennedy : I am not sure how we would answer that. We can try to answer the question on notice, but that is complex. That is quite a big and complex question.

Senator KITCHING: It is complex.

Mr Kennedy : If you are happy for us to take it on notice, we will do that.

Senator KITCHING: Yes. I would be very interested in the response. Thank you.

CHAIR: In your submission, toward the end you talk about the concept of a balance of harms as governments and states at various times try to balance the rights and obligations under the ICCPR and competing rights. You reference an article or comments by Berg. I cannot find anything that actually says who Berg is or the context of his comments, but there is a small section that talks about the gravity of harm. On notice, could you provide the committee with a bit more background about who Berg is, the context and a bit more fulsome explanation around the issue of how you assess the gravity of harms in seeking to understand that balance?

Mr Kennedy : I can answer the part about Berg first. That quote at the end of our submission is from Dr Greg Walsh's submission and the Berg article is from the Northwestern Journal of Law and Social Policy. There was a symposium in that journal, an article in 2012, about the exact issue we are talking about: religious liberty and same-sex marriage. I can get the direct reference if you need it, but it will be in Walsh's submission extensively. I think he cites Berg. That is where we got that from. Does that help answer the first part of the question?

CHAIR: Yes, it does. Perhaps you could send through a link or something to the article, if that is available online. That would be useful.

Mr Kennedy : Yes, we can do that.

Senator SMITH: Would you mind taking something on notice for me? I am curious about whether there is a different way of dealing with your concern. So on notice could you review the suitability of including religious belief as a protected attribute in federal discrimination law—the suitability of that approach in terms of allaying some of the concerns that you have detailed in the submissions?

Dr Rodrick : Yes, we will do that.

Senator SMITH: Thanks very much.

Mr Kennedy : Do you want us to take the second part of your question on notice as well?

CHAIR: Yes, thank you. I thank members of the Institute for Civil Society for your submission, for appearing today and for undertaking to take those things on notice. We will need those within the week so that we can meet the deadlines for reporting.