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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

CLARK, Mr Thomas, Director of Law Reform, LGBTI Legal Service

CHAIR: The committee will resume its hearing into this exposure draft bill. Welcome. Thank you for appearing before the committee today. Do you wish to make an opening statement?

Mr Clark : Yes. Good afternoon, everyone. Firstly, I would like to thank you for the opportunity to address the committee. Due to time constraints, I will be limiting my comments in this first speech to section 47, the introduction of conscientious or religious objection for civil celebrants. I would also like to acknowledge that our submission initially was brief and, as such, support the recommendations from Australian Lawyers for Human Rights and the Australian Human Rights Commission in their respective submissions.

As a whole, the LGBTI Legal Service supports the bill's intent to permit marriage between two people who are not a man and a woman; respects religious institutions who wish to maintain their current view of marriage, as is their right; and does not object to exemptions afforded to religious ministers. However, I urge the committee to consider my submissions on the intersection between freedom of thought, conscience and religion and the right to equality and nondiscrimination on all grounds in the context of section 47 of the marriage amendment bill.

While the right to adopt or hold a religious belief is absolute under article 18 of the International Covenant on Civil and Political Rights, the freedom to manifest that belief may be subject to limitations. Such limitations must be prescribed by law and be necessary to protect the fundamental rights and freedoms of others. The right to equality and nondiscrimination is protected under article 26 of the ICCPR and is not subject to any express limitations, unlike article 18. While requiring civil celebrants to perform marriages that are not between a man and a woman may limit their freedoms, allowing civil celebrants to object to performing one between a same-sex couple on the basis of conscientious or religious belief will absolutely infringe on the rights of the couple. Therefore, we submit that the requirement that civil celebrants not discriminate on the basis of their beliefs to be a reasonable and proportionate limitation of their rights.

A civil celebrant is not acting in any religious capacity when performing their duties. They are performing a function of the state. Considering Australia is a secular country, not based on any faith at all, any services related to civil marriage should be available, without discrimination, to all couples regardless of sexual orientation. It is important we protect the absolute rights of equality and nondiscrimination in conjunction with the freedom of religion and removing the ability of civil celebrants to discriminate and further that goal.

Finally, we encourage parliament to pass marriage equality in order to reflect the views of the majority of the Australian public.

CHAIR: I will start off with a few questions before I pass to my colleagues. You made the comment a couple of times there that you believe article 26 is an absolute right. On what basis do you make that comment?

Mr Clark : All articles in the ICCPR, if not stated otherwise, are absolute rights. The freedom to adopt and hold religion is also an absolute right; however, what I stated there is that article 26 is not subject to any expressed limitations whereas article 18 covering religion is.

CHAIR: Do you accept the role of the United Nations Human Rights Committee is to assess cases that are brought before it in the light of the various articles and to put forth judgements or give guidance to legal jurisdictions around the world?

Mr Clark : Yes.

CHAIR: Are you familiar with the Joslin case and the comments made by the United Nations Human Rights Committee?

Mr Clark : Yes, I am.

CHAIR: They go to this issue of whether or not making a ruling based on marriage is discriminatory or not. In their comments—I have raised this with a few other people—they highlight that, because of the definitions in the covenant around article 23, a state is not infringing a number of articles, including article 26, if it does not allow for marriage between people of the same sex. I am wondering, given their very explicit ruling in that area, why you still believe that it is an unacceptable discrimination.

Mr Clark : I think the social acceptance of marriage has furthered since that time. That case was a 1999 case. At that time only one country, the Netherlands, had legalised same-sex marriage. Since that time there have been over 20. As with any court, the judgements progress as social values change. I would submit that now, considering the further cases that have followed Joslin, we are heading in a direction where the right to equality and non-discrimination does cover marriage equality.

CHAIR: Are you familiar with the judgements of the European Court of Human Rights in this area?

Mr Clark : Following Joslin?

CHAIR: Yes.

Mr Clark : A little bit.

CHAIR: It has made landmark decisions. The most recent was only last year in 2016, where it echoed the sentiments of the committee, the human rights committee from the UN, in that it is not discrimination, particularly if an alternate form of relationship recognition and protection is provided by the state. It also considered the fact that mores and norms change but as it looked within continental Europe and around the world, it made a judgement that there was not sufficient change to justify reinterpreting those. Given that we have very recent jurisprudence by one of the pre-eminent human rights bodies in the world, does that change your stated opinion that this is unreasonable discrimination?

Mr Clark : No, it does not. Australia often follows relevant jurisdictions across the world in terms of human rights. The European court might have come to that decision so it would not be binding on all nations but that does not mean that Australia should not take the position like relevant jurisdictions such as United States, the UK, Ireland, Canada and the Netherlands and pass marriage equality on the basis that withholding marriage equality at a federal level is not discriminatory.

CHAIR: Can I take you then to your concerns around the conscientious belief clauses. Article 18 is quite clear. Again, the general notes that come out from the human rights committee expand in some detail the concept of article 18 being a protection not just of religious belief but also of conscience, and both the belief patterns and manifestations that follow from that. We have already in Australian law definitions of conscientious objection for things like the Defence Act so there are already examples where we have bound, what that might mean and put some definitions around it. Given that it is very explicitly in article 18 and that we have comparable definitions and uses within our existing law, why do you believe that it is such an overreach or an aberration?

Mr Clark : I would submit that the conscientious objection in terms of the marriage bill is less a manifestation of someone religious or a religious minister's right to the freedom of religion and more so their individual conscience in terms of administrative function of the government. What I mean by that is that the manifestation of that right and where article 18 applies to a conscientious belief is more in terms of the religious role of a minister rather than the administrative role of a civil celebrant. That is why I would submit that including conscientious objection for civil celebrants into the marriage amendment bill is discriminatory.

CHAIR: The United Nations Human Rights Committee, again in their general comments, discusses at some length the fact that the right applies not just to formalised religions but that every individual person has the right to that freedom of conscience and the manifestation of that. In fact, we have seen a number of judgements in Australian courts that have re-emphasised that importance for the individual. If we were to balance the right the individual has, do you have a view on the model that has been proposed in one of the Canadian provinces where, for example, a servant of the state, a celebrant, is to find that balance, and somebody who wishes to be married would approach the head office, for want of a better word, put forward who they are and when they want to get married and the head office will have a list of people who would be willing to provide that service. That way, nobody is ever offended by being refused but nor is anyone forced to do something against their will. I think you made the comment before that it would absolutely infringe on a couple. The reality is that, if this celebrant does not do it but that one does, they still have their right to be married, but if you infringe upon a given celebrant, they only have one conscience and you have now destroyed that in absolute terms by making them do something that they did not wish to do. Would that be a model that you would support?

Mr Clark : Yes. In line with the Human Rights Commission's submission, we would first to say that, no, the conscientious objection should not be included, should not be available to civil servants, but if it is included then, yes, a register or something along those lines allowing couples to match with the right civil celebrant would be the second option. We would also urge the committee to consider rural and regional people who might not have access as easily to a civil celebrant who will perform their marriage.

CHAIR: We have had evidence from a couple of people looking at this whole issue. There are folk out there doing PhDs on how you balance competing rights. One of the concepts that has come up is the concept of balancing the harms that are done. Again, I come back to your comment: to allow someone to not marry would, I think you said, absolutely infringe on a couple. Do you accept the evidence that has been put forward by a number of people that, where there are alternate providers of a service—for example, a celebrant—yes, it is an infringement to have to find another provider, but that is less harm than absolutely infringing on an individual's freedom of conscience?

Mr Clark : Again, when you talk about balance, the balance is between the absolute rights—that being the right to adopt a religion and the right of equality and nondiscrimination. The conscience factor of the right to religious freedom is subject to limitations. You are right: it is very difficult when balancing those two points, because there is no right hierarchy. You cannot put one right above another. But we would still submit that allowing civil celebrants a conscientious objection on a whole is closer to discriminatory than removing that option, and we would say that right would, on balance, favour allowing the right to equality. But I think I will go back to again saying that we accept that religious ministers—people who operate as a function of faith—should have that exemption, but not civil celebrants.

CHAIR: I have one last question just on that. A lot of people have referred to, for example, chaplains in the military, arguing that they are also public servants. The vast majority—in fact, I think I could say all chaplains—are actually accredited, if you like, by a particular religious body, so they are still operating within the confines of a religious body, albeit working within a public service environment. Would you agree that they still have that linkage in connection with the religious rites and observances of their accrediting body to be considered as well as the person who is paying their cheque?

Mr Clark : I do not think so. I would submit that there is a significant difference between a religious minister performing a marriage and a civil celebrant. The religious minister does that in accordance with their faith, with the customs of that religion, whereas the civil celebrant—

CHAIR: Sorry: I am talking about a chaplain.

Mr Clark : A chaplain, while they might be accredited by a religious institution, is still performing that civil function. They are not a religious minister and they do not have the customs that they have to perform in terms of that.

CHAIR: A military chaplain, for example, does. They would do their service in accordance with the rights of the church that has accredited them.

Mr Clark : My apologies, then. What I am still saying is that if that is in terms of one religion—they are a chaplain and they are acting on the basis of that religion—then I would not put them towards that civil celebrant basket; I would put them towards the religious minister basket.

Senator PRATT: I have a question on behalf of Senator Rice. Senator Rice has drawn my attention to 3.3 within your submission and was looking to ask you to expand on the section on how the exemption on the basis of conscientious belief is 'wholly inconsistent with the development of discrimination law in Australia'.

Mr Clark : What was meant by that is that the purpose of this bill and the purpose of how it incorporates with anti-discrimination law in Australia is to provide safeguards for same-sex attracted people. Adding that to this bill is the opposite intention of the bill to allow same-sex couples to marry and to remove that current form of discrimination. That is what we mean by 'wholly inconsistent' there—that the insertion of that section is inconsistent with the intentions of this bill.

Senator PRATT: And my own question, which is related to that: you say in relation to civil celebrants:

We are of the view that the exemption that justifies this cannot be supported by celebrants authorised to play a secular role by the state in marrying couples.

And I guess that reinforces your earlier point. I guess my question to you is: if we were not looking at a specific exemption for same-sex couples but, rather, a more generalised one—which I guess illustrates that yes, celebrants are there on behalf of the state, but I have certainly been at weddings where a celebrant, for example, is participating in the ceremony and expressing the values and views of the couple in relation to that ceremony, which might often be an expression that the couple objects to the words 'man and woman' in a ceremony, so in a sense the celebrants are very much participants rather than just an expression of that legal act—if there was a more generalised exemption where celebrants could object to marrying people of large age differences or essentially say, 'I'm not comfortable with the authenticity of this particular relationship', where they were able to decline someone's marriage on that basis, would such exemptions be more acceptable?

Mr Clark : On its face, it is less discriminatory but, if it is still used to deny same-sex couples to marry, then it is still discriminatory. I definitely see what you are saying and I accept that. Another example might be interfaith marriages. The problem with the current wording is that it does not include that it is a specific.

Senator PRATT: Another example might be someone with an intellectual disability who should have the same right to marry as anyone else but, if a celebrant were to judge that person to be in an exploitative relationship, how then do you uphold the right of that person with a disability to marry in the eyes of the celebrant? These are the sorts of things that are occupying my mind in asking these questions. If you do see it as purely an act of the state to sanction marriage, then I understand why you object to the singling out of same-sex couples. I am interested in whether that more generalised exemption would still present. It may in some ways present such a threat to the application of anti-discrimination law and the rights of people.

Mr Clark : I think I said before that our ideal is that that does not exist but if what eventuates from this bill is more acceptable than its current form, then yes.

CHAIR: Mr Clark, you have wowed the committee. I think you may have bamboozled them so they have no further questions. Thank you for appearing. I am not sure that you have been asked to provide anything on notice but, if you were, then within the week could you return it to the secretariat—

Senator PRATT: If you wanted to contemplate the other application of exemptions in a further supplementary submission, that would be lovely.

CHAIR: I now welcome representatives from the Coalition of Celebrant Associations and the Australian Federation of Civil Celebrants.