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

COMENSOLI, Most Reverend Peter A, Bishop, Australian Catholic Bishops Conference

STEAD, Right Reverend Dr Michael, Chair of the Religious Freedom Reference Group, and Bishop of South Sydney, Anglican Church Diocese of Sydney

Committee met at 08:28

CHAIR ( Senator Fawcett ): Good morning. I declare open this second 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 agree to a request to have 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 the 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, and 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, then please forward it to the committee after this hearing.

I now welcome representatives from the Australian Catholic Bishops Conference and the Anglican Church Diocese of Sydney. Thank you for appearing today and thank you for your submissions. I invite each of you, should you so wish, to make a brief opening statement and then we will proceed to questions.

Bishop Stead : I am the Bishop of South Sydney of the Anglican Church Diocese of Sydney and I speak today on behalf of the Sydney diocese and in particular in my capacity as chair of the Religious Freedom Reference Group.

Bishop Comensoli : I am a Catholic Bishop here in New South Wales, but I am representing today the Australian Catholic Bishops Conference and the 40-odd bishops around the nation.

CHAIR: Thank you. Would you like to make an opening statement?

Bishop Stead : Yes. I would like to begin by thanking the committee for this opportunity to address this public hearing. In summary, the submission from the Sydney diocese is that the amendments proposed in the exposure draft are all necessary but not sufficient. They are insufficient because the amendments only address particular issues arising from same-sex wedding ceremonies and they do not at all address the issues arising from the change to incorporate same-sex marriage in Australian law. The amendments allow ministers of religion, other marriage celebrants and religious organisations the option not to participate in a same-sex wedding ceremony on religious or conscience grounds. However, if marriage is redefined to include same-sex couples, those who continue to believe and uphold and promote the view that marriage continues to be intrinsically between a man and a woman are acting contrary to the law of this land. Because of this, our submission is that there needs to be specific positive protections to ensure religious organisations and individual believers are able to continue to hold and promote a view about marriage which is in accordance with their beliefs and are entitled to act in accordance with that belief—that there should be no material disadvantage to people of religious faith by the introduction of same-sex marriage in Australia. That is really the substance of our submission.

In addition to the points made in our written submission, I would also appreciate the opportunity to respond to two matters that have been raised in other submissions to the committee. Firstly, I understand that the committee was told yesterday that the majority of Christians in Australia are in favour of same-sex marriage, and I would welcome the opportunity to answer this question from the perspective of the Anglican Church in Sydney and slightly more broadly. Secondly, a number of submissions have claimed that there is no need for the proposed amendments to sections, 47, 47A and 47B and the Sex Discrimination Act on the grounds that the existing provisions are sufficient to protect religious freedom. I would like the opportunity to explain why this may not be the case and is, in fact, unlikely to be the case. Thank you.

Bishop Comensoli : I also would like to just say thank you to the Senate committee here which has enabled me to speak. For Catholics and for many other Australians, marriage is a unique and exclusive partnership of life and love between a man and woman open to life. Marriage is also a fundamental human institution that helps to unify spouses, to support the raising of children and to provide the basic cell of human society. The Catholic bishops hold that this unique relationship is a basic human reality deserving of the full protection of the law. Balancing the demands of competing human rights can only be assumed if each individual human right is secured. For this reason and with regard to marriage, people of faith have the right not to be coerced into undertaking activities that are contrary to their conscience. Each and every person, without exception, deserves the right to their dignity. For this reason, every person, no matter what their sexual orientation, is to be respected. For a Christian like me, this fundamental respect further demands an uncompromising commitment of love, mercy and justice.

The issue at hand for the Catholic bishops is not one of sexual orientation but, rather, if it is appropriate for the state to compel people by law to endorse someone else's activity or beliefs with regard to marriage. The bishops appreciate the protections offered in the exposure draft for ministers of religion, for marriage celebrants and for religious groups but we note that any redefinition of marriage will have implications for all people of faith, not just for those of those three categories. Any person who, in conscience, holds that marriage is between a man and a woman would not necessarily be protected in the draft as it exists. The implication is the just exercise of their conscience to be restricted in practice.

Religious freedom is not just the freedom to worship behind closed doors. As a significant proportion of Australians, people of faith live and contribute to the common good of our country in all sorts of ways. Communities are strengthened when people come together in various projects around shared beliefs and also respecting the freedom of others who hold different beliefs. Dialogue, and not the imposition of limitations, is the best way of honouring the rights of all. Restricting freedom of conscience radically weakens this basic human right. Freedom of conscience should be recognised as a positive protection in law rather than treating it simply as a limiting exception.

They are the essential aspects of the presentation of the bishops in their submission and I would be happy to answer any of your questions as we progress over this in the next hour or so. Thank you.

CHAIR: Gentlemen, thank you. I will start off with a few questions before I pass to my colleagues. Bishop Stead, your request was to answer that question about numbers and, in fact, we also had a group yesterday purporting from the Catholic side of things that, I think, two-thirds of Catholics supported their position. So I would welcome each of you to present an alternative view.

Bishop Stead : The first point I would like to make is that church doctrine is not established by opinion polls. I would also like to cast some question over the veracity of the polls themselves, although that is not really the point I would like to make. My point is that doctrine is declared in the official pronouncements of the bodies of the church. If I can speak for the Anglican Church, for a moment, the Anglican Church at a national level—it is representing all of us at its General Synod—made declarations in 2004, 2007 and 2010 at its General Synod affirming that marriage is intrinsically between a man and a woman. Our Sydney diocese has made similar declarations over a number of years, most recently in 2013, 2014, 2015 and 2016. In pretty much every year for the last four years we have made a declaration along those lines. The details are in our submission. They represent, if you like, the official position of the church.

The primate of the Anglican Church of Australia made a recent statement, which is that the position of the Anglican Church remains the one set out in the Book of Common Prayer:

that marriage is between a man and a woman under God forsaking all others until death parts them.

That, I take it, is a statement of the position of the doctrine of our church as a whole.

The primate has also expressed the view that this doctrine of the church is unlikely to change any time in the foreseeable future. And for reasons of the way our canon law is formed, I think that is a correct assessment. I am happy to explain more but I think that is probably all I need to say. However, if we are interested in what is the view of the people in the pew rather than the people in the official pronouncements of the church, I cannot speak to the Anglican Church nationally but I can speak for the position of Sydney diocese, on the basis of a survey that we took of people in our churches.

In 2016 we did a comprehensive survey that included over 2,600 respondents. This was directed to people who are attenders of Anglican churches. That sample was tested to make sure it was representative for distribution—age, gender, skew, geographical bias—and we are fairly confident of the representative nature of that survey.

Of that survey of Sydney Anglicans, 72 per cent were either opposed or strongly opposed to same-sex marriage, 13 per cent were undecided and 15 per cent were supportive of the state enabling same-sex marriage. Just to repeat those numbers, they were 72 against, 13 undecided and 15 for same-sex marriage—so a lot less than the majority claimed. Interestingly, when we drilled down on the 15 per cent who were supportive of same-sex marriage, just over half that number—if you like, eight of that 15 per cent—were supportive of same-sex marriage being recognised in churches. The remaining seven per cent were saying: 'No, we don't accept same-sex marriage for Christians but we recognise the separation between church and state and therefore it doesn't really matter what society does. We are supportive of the state changing its laws without changing Church doctrine.' To turn that around, only eight per cent of Sydney Anglican Christians would be supportive of the Anglican Church recognising same-sex marriage in its church doctrine. So I think it is fair to say not only that the official doctrine of the Anglican Church remains that marriage is between a man and a woman but also that that position is supported by the majority of Anglicans attending churches in Sydney.

Bishop Comensoli : Thanks, Bishop Michael, for indicating those sorts of details. I will not go into details. I note that each person, in their own conscience, stands before God and we stand towards one another in that regard, so I cannot comment on individual consciences. What I could comment on is that in the Catholic circumstances in Australia there is as an ongoing reality that every week more people attend the Catholic Church than attend all sporting activities—at least all the great sporting competitions in our country each weekend. So there are many, many thousands of Catholics voting with their feet each Sunday and they know the position of the church. It is very clear. It has always been that and it will be that. So people make their choices by way of their own personal actions, and that action of coming to worship on a Sunday, week in, week out, is an indication of where people stand.

CHAIR: Can I go to a different issue, then. The focus of this inquiry is freedoms and a comment has been made by a couple of people in evidence that they had concerns, as they looked at schools or ministries of the church, that there was essentially a judgemental attitude by the church that same-sex attracted people perhaps were not welcome. I saw in your submission, Bishop Comensoli, that you highlight that the Catholic Church in fact employs people who are same-sex attracted who are prepared to work and support the mission of the church and also its values in their day-to-day work. Would you like to expand a little more on that—both the way the church interacts with people who are same-sex attracted but also the impact on individual constituents of the church if there were no religious freedom protections, should a law for same-sex marriage be passed?

Bishop Comensoli : On your first point, I am sure all of you senators would be well aware of the very extensive and vast networks of activities that the Catholic Church and its various agencies are involved in in the common welfare aspects of our country, so in health, education, welfare and outreach to the poor and to those who are struggling and in difficulties. There are all manners of ways in which the Catholic Church gives expression to its faith, in ordinary human care and responsibility for one another. That includes anyone of same-sex attraction, anyone of a particular gender orientation as well. So those outreaches are always available to them.

Three words that I use in that regard are that all Christians are called to act with love, with mercy and with justice. So how might we do that for each individual person we might come into contact with or through the general activities of the church through its groups, agencies, organisations and so on?

So there is any amount of evidence to indicate the manner in which the church is directly, indirectly, intimately and integrally involved in the lives of those who are same-sex attracted—in the lives of anyone—who might have benefit from the services the church may offer. That is how I think I would answer the first part of the question. Can I ask you to repeat the second part, so I can be more clear on how you want me to answer.

CHAIR: In the submissions from both the Anglican and the Catholic churches concern was raised that if a law was passed to legalise same-sex marriage then there is the potential, for organisations which do not approve of, subscribe, support or enact things to support same-sex marriage, that government funding could be removed, other doors could be closed, or penalties or restrictions could be imposed. Both of your submissions have highlighted that as a consequence that needs protection. I am just wondering if you could expand on what you think that protection could look like.

Bishop Comensoli : I will answer it in two ways. The first way is in the sense that every human right, freedom of conscience, freedom of religion, is a human right that Australia has signed up to through the Universal Declaration of Human Rights. Every human right needs to be protected. At times there is going to be a need to find a balance between possible competing rights. That is part of the responsibility—I do not want to tell you what to do in your work—of the state: to find ways in which those rights are all protected but done in a way that balances between them. It is not a matter of disbanding or undermining a particular right so that another right might be uplifted. Somehow all the rights need to be held together. That is the first aspect of the way of answering the question.

The other aspect is that the church, through its various agencies and activities and works, seeks to offer services that are wanted, if I might be able to put it in that way. To use the example of education, families make choices about where they want their children to be educated. In this state, roughly 20 per cent of children are educated in Catholic schools, so there is a very substantial choice that is being made by parents to opt for what is offered within a Catholic school, including all the teachings of the Catholic Church that are there to assist in the general education of our children.

The same sort of thing could be said about hospitals, of aged care facilities and so on. In providing the opportunity for these services, people, in a sense, vote with their feet. They want these services. They know what the church stands for and, nonetheless, choose these services for their children, for their loved ones, for those who are sick and dying and so on. So protecting the possibility of that I think is essential. It is not, in a sense, for a state to step in and determine the services that people wish to take up, within the confines of normal legal requirements, of course. But there is no reason why people cannot say, 'This is what we are looking for', and that those services may be provided and that the state might assist in that regard.

CHAIR: Before I pass to Senator Pratt for questions, Bishop Stead, would you like to answer, from the Anglican perspective, on protections you see are necessary for both individuals as well as the associated organisations of the church.

Bishop Stead : I think I would begin at the same point as Bishop Comensoli, which is to state that the Anglican Church does not actively discriminate against people who are same-sex attracted or of different gender orientations, nor would we, if same-sex marriage becomes law, actively discriminate against people in those relationships. The point of tension is in the right of an individual religious organisation, in this case say Anglican schools or welfare agencies, to employ people who support and uphold the Christian ethos of that organisation. That is the kind of language that we would use. There are many people who are same-sex attracted in active gay relationships who are employed by Anglican schools, for example, or by Anglicare, who would say, yes—

Senator PRATT: Is it because their relationship is too visible?

CHAIR: Senator Pratt—

Senator PRATT: Sorry, I will not interject.

CHAIR: Do not interject.

Bishop Stead : To answer the senator's question obliquely, if they say, 'Yes, we are prepared to support and uphold the Christian values of this school,' and that was understood—that the Christian view of marriage is that it is only between a man and a woman—that would be the critical test, not whether they are married or not but whether they would say that they would support and endorse that and teach that view, if their particular subject area involved that. So the point is not active discrimination. It is actually in the right of an organisation to employ people who support the ethos of that organisation. And I do not think that is particularly unique to religious organisations. I doubt that I would get a job with Australian Marriage Equality, for example, because I have a particular view about marriage, and I do not deny them the right to not employ me for that purpose. I do not support the ethos of the organisation; I would not expect them to employ me. So why do we think that that might be under challenge? It is because of the kind of language that we are increasingly seeing in this debate. For example—and I just pick this at random—this is from submission 22 from Liberty Victoria, and I quote from page 3:

A civil celebrant who wishes to have the discriminatory licence of religious celebrants under section 47 is hardly a “fit and proper person to be a marriage celebrant” …

That is an extraordinary claim—that is, a person who holds the view, as I do, that marriage is between a man and woman is seeking a licence to discriminate. I would not have understood that that is what I was asking for; nor does that necessarily make me not a fit and proper person.

There are moral judgements explicit, I think, in a number of submissions that, merely to hold the view, to continue to hold the view, that marriage is intrinsically between a man and a woman is actually contrary—it is immoral, not just contrary to law, but actually wrong. Why this is a problem is that a number of submissions have made the point that, for example, marriage celebrants are performing a civil function on behalf of the civil government and they are required to uphold the civil standard of law. If that is true of marriage celebrants then why is that not also true of schools who are in receipt of government funding? They are performing a government function of education; they are receiving some government money for doing that. Why should they not be compelled to uphold that standard, that civil standard, if the same logic applies?

What has happened is that the approval of same sex marriage has not become an optional thing but a mandatory thing and, indeed, the logical conclusion of many of these submissions is that people who hold that view will have to debar themselves from roles such as being a state or territory marriage official. You could not do that if you hold this view. You could not do it if you were a marriage celebrant who held that view. So there I think is where the problem is going to be. As soon as we accept the premise that this view is actually not an acceptable view in Australia anymore, those organisations who continue to uphold, promote and teach that view will actually be in opposition to the law of this land.

Senator PRATT: Can I pick up where you left off and ask: in the context of antidiscrimination law and the current acts of civil celebrants, they are required to uphold antidiscrimination law which may already be in conflict with church doctrine. Is that not correct?

Bishop Stead : I am struggling to find an example where that would be the case.

Senator PRATT: Clearly there are different forms of church doctrine, but civil celebrants marrying divorced couples—

Bishop Stead : I have married a number of divorced couples. It is not a blanket rule. I now understand where the question is coming from. Yes, I understand that a civil celebrant would be forced to marry divorced couples, whereas a religious celebrant has the option not to do that. I am personally not aware of marriage celebrants for whom that has been a problem, but I suspect the examples are fairly constrained.

Senator PRATT: The evidence before this committee demonstrates that, in terms of civil celebrants playing that secular role, again, any concern about that is also very constrained because it is secular, civil marriage.

Bishop Stead : I am not sure that the evidence—at least what I have seen in the written submissions—really does capture the situation. It is a little bit more complicated than I think many of the submissions have realised, and that is because many of the people who are registered as civil celebrants are in fact religious people. Not only are there 539 religious civil celebrants, which is a category that is recognised, but there is a much larger category of people who are pastors of independent churches. Because their denomination is not recognised and because there is no mechanism for them to be recognised under Part 1 of the act, they are registered under Part C. I have been provided figures by the Australian Christian Churches. Their numbers are: of their 3300 recognised pastors or equivalent, 1416 are holders of civil celebrant licences. That is, 42 per cent of their pastors—

Senator PRATT: If we were to segregate those two categories of celebrants, would that make you more comfortable with what is before us?

Bishop Stead : More comfortable, yes, but it still also fails to distinguish between religious marriage and religious people performing the service of marriage. What this is protecting is people who can say, 'Yes, I am a registered pastor of a church' or something like that, but what about the person who says, 'I am a Christian person; I have a particular view about marriage; I want to support marriage as a secular institution; I want that to be my job.' They are the people we are trying to protect—to give them the freedom to continue to offer their services to the 98 or 99 per cent of Australian heterosexual couples to whom they are presently providing that service. Not giving them the option to go against their own conscience would effectively mean that they would have to give up their licences.

Senator PRATT: Celebrants currently have to conduct those marriages irrespective of whether they are against their conscience. It is not just same-sex couples for which that might be the case. Celebrants might be uncomfortable with a large age difference between those getting married; they might be uncomfortable for a whole range of different reasons. Why should same-sex couples be singled out? Is it because that relationship is at the other end of the spectrum to your church doctrine? Why can't we separate the two?

Bishop Stead : I think it needs to be said that there is something about this kind of relationship, a same-sex marriage, which for some people of faith is actually a matter of conscience and a strongly held view. I do not personally approve of 80-year-old men marrying girls who are 18 years one month old; I would personally be shocked by that but that is of a different category—

Senator PRATT: Which is the more shocking: a large age difference and a power dynamic between a man and a much younger woman or a couple in a very equal same-sex relationship?

Bishop Stead : I am privileging it from the point of view of my own Christian faith and I acknowledge that. It is because of where I stand as a Christian and because the Bible makes certain statements about what marriage looks like. This is something where what the Bible says is marriage is being denied. The Bible does not make positive statements about octogenarian men marrying young women.

Senator PRATT: I can understand your desire to do that for the 72 per cent of active churchgoers who support marriage as it is currently defined. What I am struggling with is your desire to impose that on secular forms of marriage by maintaining the current definition of marriage which excludes same-sex couples or transgender people or people who may be intersex.

Bishop Stead : For the purpose of this argument I am assuming that same-sex marriage has become law and therefore I am not trying to restrict that. To those same-sex couples who wish to be married I am saying, 'Yes, if we are going to go that way, let that happen but do it in such a way that it does not force any people of faith—not just registered religious people—to act contrary to their conscience.' So this is about providing maximum tolerance in Australia—

Senator PRATT: What about a more generalised exemption, perhaps where other issues of conscience are in play? Currently a minister of religion can refuse on a range of grounds. Why do same-sex couples need to be singled out at the secular end?

Bishop Comensoli : I might add just two aspects to this. To answer the very last point that you were making, as I understand the law as it exists at the moment a Catholic priest would be acting illegally if he were to officiate at a wedding that was not according to the rites of the Catholic Church. The law as it exists at the moment is that a Catholic priest, at least, cannot undertake legally any action as a celebrant that is outside of what we call the rites and the rituals of the Catholic Church. So, if I can bracket out that side of things, where I think I want to engage with you on the question around the secular aspects of this is to consider it in terms of not so much a secularist position but that we are a pluralist society and that therefore there ought to be room within a society for plurality of opportunities.

Regarding civil celebrants, I am not familiar so much with that side of things, so I do not want to enter into an area where I am ignorant. But if a civil celebrant is in a pluralist context, so long as there is the plurality of civil celebrants, then the options are available, if a law like this goes through, for someone to be married according to the law of the land and there are sufficient celebrants available to do that. That then does not impinge on someone's individual freedom of conscience, whether they are religious or not religious. This is a conscience question, and people can make decisions about marriage outside of a religious context. So long as there is plurality of opportunities within civil celebrants, then that offers the opportunity for people to take up—just as one chooses a certain place of care for your elderly parents, for instance. You might choose a certain facility and a place. It does not then force someone else to offer those sorts of things as well. It is a plurality rather than a secularist position.

Senator PRATT: You spoke before about people choosing services that have a particular ethos. Are you both, in terms of the exemption, against discrimination in aged care having been changed? Has that fundamentally shaken people to the core, in terms of your being able to implement the principles of your faith within your institutions? How have you been affected by that?

Bishop Comensoli : We would simply say no.

Senator PRATT: I thought that would be.

Bishop Stead : Just on that point alone, it is worth highlighting that the argument around discrimination is often confused, and issues of denial of service are confused with issues of right of employment. Churches generally are much more concerned with the right of employment, where we can continue to employ people who uphold the Christian ethos of our organisations. As Archbishop Fisher has said, I am not sure you can show me any homeless gay man who has been denied service, who has been evicted from a shelter.

Senator PRATT: No. And I appreciate that, but you would have to accept that LGBTI people are now much more comfortable in your services because they feel like it is their right to be there and their identity is respected within those institutions.

Bishop Comensoli : It is back to that essential point of a Christian's responsibility being to love, act with mercy, act with justice.

Bishop Stead : Could I pick up on a point raised by Senator Pratt, which was: were we comfortable with LGBTI people being singled out by the legislation? I for one would see no need for same-sex couples to be explicitly named in the legislation. For example, if we were to take out clause 47(3)(a), which is the clause 'because the marriage is not the union of a man and woman' and the corresponding clauses in 47A and 47B, I would have no objection to that. That is probably more along the lines of the New Zealand act, where it is actually making a positive statement about religious freedom rather than constraining it to only the case where it is the union of a man and a woman. If that is a concern for the LGBTI community, I can understand that. I do not see that there is anything lost by a more broadly framed, positive exemption recognising freedom of conscience and belief. It does not have to be limited to a marriage which is not the union of a man and a woman.

Senator SMITH: It is possible for Anglican Christians and Roman Catholic Christians to dissent from the church's rulings, isn't it?

Bishop Stead : Yes.

Bishop Comensoli : Yes.

Senator SMITH: For me the most similar social policy issue like this one is the debate we had in Australia around divorce law reform. It was before my time, but my observation is that the church has been able to live comfortably with a change in the state law around divorce and with its own divorce doctrine. That is correct, isn't it?

Bishop Stead : That is correct.

Bishop Comensoli : We do not have a divorce doctrine.

Senator SMITH: I am happy to disclose: I am an Anglican, so Bishop, if you are happy to share with me the Roman Catholic Church's position, I would be most appreciative.

Bishop Comensoli : Marriage is between a man and a woman for life and for the begetting of life.

Senator SMITH: So, that position does coexist with the state's—so, why is it not possible for the state to change its law in regard to marriage between two persons and for the church to live or coexist comfortably around that?

Bishop Stead : I think that the church can coexist. The issue is the nature of that coexistence and when there can be a mutual respect and tolerance of different views or whether there will be one legislated view that becomes the norm and dissent from that view becomes lawful or unlawful discrimination.

Senator SMITH: So, the question then becomes, how do we provide for the best possible coexistence of the state's position and the church's position? In both of your submissions you say that the exposure draft does not go far enough, and you do lay out some thematics about what needs to be done, but what is absent is a specific proposal to amend the existing exposure draft. I am just wondering whether or not you have put your mind to specific amendments that would make our job easier in terms of accommodating the concerns of the Anglican and Roman Catholic churches in Australia.

Bishop Stead : Given the very short timetable for responses for this committee, it was not possible to do—

Senator SMITH: [inaudible] debate of some time—

Bishop Stead : The issue is that I do not think it is something that is actually going to be handled within the Marriage Act itself. That actually requires an overhaul of the way we think about the recognition of rights in our country. As long as we continue to frame the issues around discrimination solely in terms of the Anti-Discrimination Act and the Sex Discrimination Act and conceive of what religious people do as some kind of bizarre exceptions to what ordinary, reasonable people think, that will always be problematic. We actually have to reconceive the way that we recognise human rights, one of which is the right to freedom of thought, conscience and religion and another of which is the right to free expression and not to be discriminated against on any grounds. How do we actually balance those properly? It needs to be done in an act rather than having a Sex Discrimination Act with specific exemptions for religious people and religious organisations. Therefore it is not just a minor tweak to the Marriage Act that would accomplish that; it is actually going to require a complete overhaul of the way we think about the balancing of competing rights in Australia, because that is what we are talking about here: recognising one set of rights and how that impacts on another and a way of expressing it that ensures that there is no disadvantage to individual groups.

If we can ask, 'Is it possible for same-sex attracted couples to be married and have that sort of service provided in a way where they experience no material disadvantage?'—that does not require compelling people to act against conscience—these are the things. Yes, we have been having this debate for a long time, but no, we do not have the specific act that we could propose that would actually achieve that end.

Bishop Comensoli : It might be worthwhile at least noting that while the debate around same-sex marriage has been going on for some time the discussion around this particular piece of draft legislation has not. So, in fact, it is a very recent thing that we have been able to have a look at some detail around what is being suggested. It is just that at the moment: a suggested possibility into the future. We do not know what shape that might further develop over the next few years as discussion continues on the broad question of same-sex marriage. So I think it is worthwhile at least stating that our time for eyes on this particular draft has been relatively short.

Senator SMITH: But issues of freedom of religion and conscientious objection are very live ones in Australia generally, not just through the prism of this debate.

Bishop Comensoli : There is certainly no question about that.

Senator SMITH: So our task—and the terms of reference make it very clear—is to explore what sorts of amendments are necessary to make this particular bill as accommodating as possible to various sections of the community that have strong views on the issue. What is absent from your submission is a constructive way forward about how we as a committee could accommodate some of the genuine concerns that you might have around freedom of religion and conscientious objection. My request to you is whether or not over the next week you are able to provide us with some specific proposed amendments that we might be able to review to see whether or not there might be an accommodation of the concerns of the Anglican and Roman Catholic churches. Is it possible for the churches to agree same-sex marriage if the conditions around freedom of religion and conscientious objection are to your liking?

Bishop Stead : As our primate has articulated, the doctrine of our church is unlikely to change whether or not the state changes its definition. For the Anglican Church, marriage will continue to be between a man and a woman. I expect that that is also true for the Catholics.

Bishop Comensoli : Not only 'unlikely' to change, won't change!

Bishop Stead : And it is not really a question of the church agreeing to that; it is more a question of the church accepting the change in the secular reality. So, yes, if the law changes, the church will roll with that. It will not be the end of Christendom. But it is unlikely to be something the church will actively support, and it will certainly not change its official doctrine. Therefore, I think it unlikely that people will be getting married in Catholic churches or Anglican churches in Sydney in the foreseeable future.

Senator SMITH: Many parliamentarians would seek to understand the concerns of the Anglican and Roman Catholic churches and seek to accommodate reasonable issues in any future legislation. My second set of questions go to—

Bishop Comensoli : May I have the opportunity to respond to you first question? While I am happy to take on notice the opportunity to go into the finer detail and I am sure that can happen, I think the broader question is: how do we make a shift away from what at the moment strikes me and the bishops as a limiting method of application of the law by way of exemptions or—

Senator SMITH: That is right. I think you used the word 'narrow' in your submission.

Bishop Comensoli : That is right—to moving it from there to a positive manner of expressing the law. The point I was trying to make with Senator Pratt is that it is a movement towards a pluralist manner in which the law might be expressed such that those with an objection of conscience are not coerced into activities or involvements with activities that are against their conscience. So it is the positive expression of the law rather than a negative, narrowing or limiting one.

Senator SMITH: Your submissions provide a number of negative instances with regard to freedom of religion and objection across other jurisdictions. They are overwhelmingly drawn from the United States, and I was wondering if—perhaps on notice again—you could provide us with instances that you know of in more like jurisdictions like New Zealand, the United Kingdom, the Irish Republic et cetera.

Bishop Stead : I am happy to take that question on notice. It probably is worth making the point, though, that in both the United States and Canada there are explicit provisions in the constitution and charter, respectively, that protect freedom of religion in a way that section 116 of our Constitution does not. Yet, notwithstanding those protections, these are the very jurisdictions where there have been the most litigated examples. It is one thing to say they are under very different jurisdictions but, if anything, the bar is already higher to start with in that there is a constitutional protection for freedom of religion.

CHAIR: We do have Bishop Porteous coming in later and we are going to ask about his personal experience. I understand the bishops conference, as an organisation, was also heavily involved in that case. So there is a domestic case where even the expression of the position of the church has led to action. Could you briefly describe for the committee the impact of that in terms of resources and time et cetera for the conference has been?

Bishop Comensoli : Yes. This was a result of the bishops putting out a statement called 'Don't mess with marriage', which outlined the basic position of the church in terms of how we understand marriage and also in terms of how the question of same-sex marriage might be having an impact on other aspects of life into the future and so on. So it was a basic statement of our doctrine and teaching in that regard, and posed questions to be asked as part of the general dialogue, discussion and debate around the broad same-sex marriage question.

As I understand the details, and I will leave it to Archbishop Porteous to talk of his own particular circumstances, I am not familiar with the Tasmanian racial discrimination laws; they are different from the ones in New South Wales. I do not think the question would have come up in New South Wales in quite the same way it did in Tasmania. There are differences that need to be considered in that regard as well. But quite clearly, it was a highly time-consuming and challenging time for the archbishop personally, and I think the general church structures, to be able to try to continue this sense of a dialogue: the church presenting and proposing how it understands marriage and the implications of that. In the context of a general sense of respectful dialogue in our country, that seemed to be moving towards being undermined quite substantially by this action so that even the possibility of raising this as a legitimate question for respectful dialogue was being moved in a way that would seem to have been trying to stop that possibility. That is not our pluralist Australian way and I think it is important that—

Senator SMITH: People are free to raise objections if the law allows it; it is whether or not the law upholds the objection. The fact that someone raised an objection is actually part of the pluralism that you talk about.

Bishop Comensoli : The point around which the church was putting its position is also the law of the land at this moment.

Senator SMITH: The point I was trying to make is that I am a little sceptical about the suitability of using the American examples as a way to navigate through our own issues here in Australia. Did you say you were able to take those on notice?

Bishop Stead : Yes. I can give one example which is not directly related to same-sex marriage but is indicative of the kinds of concerns that we have and it is that issue that I mentioned earlier: once we frame one view of marriage as the entrenched and only view of marriage, to teach contrary to that is to teach contrary to the law of our land. I am aware of an independent Christian church which rents the school hall for meetings on Sundays. It teaches from a biblical view of marriage and human sexuality. A particular activist group downloaded copies of their sermon, went to the principal of the school and said, 'This group is teaching this particular view.' In this case it was on the question of whether homosexual behaviour was acceptable to God or not. That was the issue; it was not about same-sex marriage per se. The argument was put to the principal—

Senator SMITH: It was Leviticus.

Bishop Stead : It was—that is right. It was the quoting of Leviticus 18 which was problematic. The quotation from a religious text was shown to the principal, and the principal—

Senator SMITH: There is much in Leviticus and the Old Testament—

Bishop Stead : As I understand it, this issue has been resolved, but it was a very close call as to whether this church would continue to be allowed to rent a public property because what it was teaching was contrary to the doctrine of the state on that issue. So they are the kinds of issues that we are concerned about—the downstream or knock-on effects of the change to the definition of marriage. If religious or other organisations continue to say that marriage is this, will they be denied access to government funding for welfare services, school education and the like? I am happy to come back with other examples from similar jurisdictions. I am aware of things in England, for example, but I do not have the details in front of me.

Senator PRATT: But the law before us does none of those things, does it?

Bishop Stead : Do you mean it does not do anything to protect—

Senator PRATT: It does not limit your current protections in relation to those things.

Bishop Stead : No, but we do not need protection at the moment, because the definition of marriage has not changed. When the definition of marriage changes, those who continue to oppose what is then the legal definition do need some protection.

Senator PRATT: I would disagree, but anyway.

Senator SMITH: It was put to us in some evidence yesterday that a broadening of the discrimination criteria in Australia might be a suitable way of dealing with some of the freedom of religion or conscientious objection concerns. Would you be good enough to revisit the Hansard where those issues were raised and provide some commentary around the suitability of that approach from a church perspective?

Bishop Stead : Yes, we would be happy to take that on notice.

Senator KITCHING: Firstly, thank you very much for coming today. Could I ask you, Bishop Comensoli—Reverend Stead has already given an opinion—whether you find section 47 of the current Marriage Act to be clearer than the proposed section 47 in the exposure draft? As it happens, I have copies of both here if you would like to look at them. Reverend Stead suggested that perhaps subsection (3) of section 47 could be amended or removed. Do you have a view on that?

Bishop Stead : No, I was only talking about paragraph (a)—47(3)(a).

Senator KITCHING: Sorry, 47(3)(a). Do you have a view about which is clearer?

Bishop Comensoli : I am no lawyer, as you can imagine. My understanding is that in the proposed draft there is 47A, 47B and 47C. Section 47A refers to religious celebrants, 47B to civil celebrants and 47C to religious groups. I think that is the case. If that is the case, then 47C, in narrowing just to religious groups, does not allow for individuals and people who might want to make particular conscience choices in regard to their involvement or not in a particular activity, as I mentioned in my opening statement. So that is not at this stage protected. In a sense, there is no 47D around individual consciences. Once again, I am not a lawyer. I am just making a more general point.

Senator KITCHING: Some might say that there is really no limit in the current section 47.

Bishop Comensoli : There is, in that I cannot do a secular wedding in Australia legally. I am a Catholic priest and, as such, I can only legally do something according to the rites of the Catholic Church. So there are restrictions already.

Senator KITCHING: Yes.

Bishop Comensoli : Perhaps a better word is 'discrimination', in the positive sense of the word. So some can do this and others cannot, and so on and so forth.

Senator KITCHING: I will put this to both of you. How do you think it would work for the churches if freedom of religion were put in anti-discrimination legislation? So it would no longer be an exemption but, as you phrased it, it would be a positive—

Bishop Comensoli : Protection.

Senator KITCHING: Yes. Do you feel that would be a more balanced position? How would you see that working? Are you really suggesting almost a bill of rights as positive legislation or are you suggesting it go into an act of parliament?

Bishop Comensoli : I might refrain from that last little bit. That is a completely different discussion. In trying to present something in a positive way, it is about each individual human right, whether it is the right to freedom of conscience, the right to shelter, the right to safety of the person, and so on—all the rights that are named in the universal declaration. It is not a matter of one trumping another but how does each one hold its own place in relation to the others? There is the particular question around freedom of conscience or freedom of religion. How does that particular right hold its place in terms of other rights that are in play at this point? It is not a case of saying that on this occasion this right or that right gets trumped by some other one but that it is still upheld and does so in relation to the other. Again I come back to the difference between what might be named as a secularist position—not a secular position but a secularist position—as distinct from one that is around plurality.

Senator KITCHING: Bishop Stead, do you have a view about that?

Bishop Stead : I think there would be a positive value in enacting a recognition of freedom of religion in antidiscrimination legislation and to do it by way of legislation rather than by way of a bill of rights. That is a different discussion for another day.

Senator KITCHING: I am just trying to think of a way in which it would be framed positively.

Bishop Stead : At the same time, in addition to doing that, any amendment to the Marriage Act would also need to positively recognise and really make clear that this is an instance in which the exercise of religious freedom is contemplated. We need to name it in the Marriage Act, not necessarily highlighting the 'union of a man and a woman' phrase but actually positively recognising the need for the exercise of freedom of conscience and religion inside the Marriage Act itself. To both ends, I think it would require a reworking of our antidiscrimination legislation as well as positive protections. As my colleague Bishop Comensoli has said, they need to be protections which go beyond those even contemplated in the existing act to protect those ordinary Christians who might, on conscience grounds, not wish to participate in a same-sex marriage.

To go back to an earlier point, this is not seeking a right to discriminate against LGBTI people. In many of the overseas cases, as I understand it, the bakers and the photographers already had pre-existing and longstanding commercial relationships with the gay people who were their clients—the baker, for example. It is a question of not denying all services to LGBTI people but the right not to participate in one particular action that, say, a photographer, may not wish to participate in on conscience grounds. That is the thing that we need to protect for the ordinary Christian, not just the professional Christian—the person who is a registered minister of religion or the like. There is not really any protection in the act for people in that category at the moment and that is the broadening that we have both been arguing for—a recognition that there may be people of good faith who, on their own conscience grounds, wish not to participate in a marriage ceremony. It is not giving them a general right to discriminate but just a right not to participate. That is what we are seeking.

Senator KITCHING: I am sure you have both read the terms of reference, but I will just read term of reference (c), which is the 'potential amendments to improve the effect of the bill and the likelihood of achieving the support of the Senate'. As you can imagine, this is a somewhat tall order, perhaps. We are obviously grappling with rights, and it is a matter of balancing those rights. Where would you see the exemptions extending to?

I will give you an example. In the UK under the Marriage (Same Sex Couples) Act there is a list of schedules. In that, for example, buildings are included, so that would be church buildings where a marriage might take place. Would you see that as being part of an exemption? Would you see that including perhaps religious instruction before marriage? Where would you see those exemptions extending to?

Bishop Comensoli : To take up, specifically in terms of how we might be able to assist you in framing the language, drop the language 'exemption' to start with. We are not talking about exemptions over and against another right. We are talking about protections of a particular right. Any use of language around exemption, around exception suggests that this right has been trumped. That is one very practical way in which the draft might be reframed to talk about how the various protections of rights might be upheld.

The challenge with the language of exemption or exception is that it can—and has in much of the debate that has already happened—very easily flow over into making accusations of discrimination or bigotry or so on: 'By providing the exemption we are just allowing you to go on discriminating.' That is not what is at stake here. At stake is: how do we protect these various rights within the context of them being able to accommodate other rights as well? So there is one very practical way in which I think a positive reframing of the language of the act might help.

Senator KITCHING: The exposure draft uses—

Bishop Comensoli : Exceptions.

Senator KITCHING: Yes. So, what I am really asking here is: would the Catholic Church expect that its buildings, because they are a physical part of the church, also be a part of the church doctrine, if I could put it like that?

Bishop Comensoli : I might answer by way of considering it in terms of persons rather than things.

Senator KITCHING: Okay. Yes.

Bishop Comensoli : It is better to think of it, I think, in terms of persons. So, how might we build into a piece of legislation something that allows for someone not to be coerced into certain activities that are against their conscience? Then it is about aspects associated with persons or places where persons might be acting and so on and so forth.

Bishop Stead : To answer the buildings question, I think that that would be covered by the proposed section 47B, because that covers making facilities available for religious organisations. I imagine—I am sure—churches would fit into that. There is a question about whether school chapels would fit.

Senator KITCHING: That is where I am really going, because we have received submissions that say that that they should not be exempted.

Bishop Stead : I would strongly assert that they should be, in that the chapels at many Anglican schools, for example—and I am sure for the Catholic Church as well—are consecrated buildings that we treat in the same way that we would treat any church building. So, we would argue that the same respect for the doctrines of our respective churches ought to be accorded to school chapels and the like. I think the existing 47B does not go quite far enough, nor does the existing Sex Discrimination Act, because the provisions there only apply to instruction and education. That is the limiting phrase there.

Senator KITCHING: Is that section 37?

Bishop Stead : Of the Sex Discrimination Act?

Senator KITCHING: Yes.

Bishop Stead : I believe so. I do not have it in front of me.

Senator KITCHING: Anything that flows from marriage—sorry, I just cannot—

Bishop Stead : I do not claim to be a lawyer but my understanding is that the existing Sex Discrimination Act, though it provides an exemption for schools, for example, that particular provision, is limited to the provision of instruction or education. It is, at least, arguable that having a same-sex marriage in a church chapel has nothing to do with the religious instruction of the school and therefore is not covered by that exemption, and therefore if there were not a section 47B it would be unlawful for the school not to hire its chapel out to a same-sex couple. That is something that needs to be, at least, explored. I am not even sure that the existing wording of section 47B would cover that situation.

Senator PRATT: Surely, schools are already able to say no to various—

Bishop Comensoli : Yes. I am not telling you your own party policies, both of you, but your leaders have come out strongly in defence of Catholic schools being able to continue to teach and act and do their activities within the ethos of the particular religious congregations that they belong to.

Bishop Stead : If I can take Senator Kitching's question—'What other provisions do there need to be?'— a little bit further, not only should there be the existing 47B but, in our submission, we suggest at the top of page 6 what would be, I guess, 47C, a new provision, which provides the same protection for any person:

A person may, despite any law, refuse to make a facility available, or to provide goods or services …

If we were to take out subclause (a) there, which does identify that it is not the marriage between a man and a woman, that would be a very broad protection for any person of faith to be able to say, on conscience grounds, 'I choose not to offer my services,' as a photographer, for example, 'because I do not want to participate in a same-sex marriage.'

Bishop Comensoli : The sense of moving from person to things is a principle worth holding onto, rather than starting with particular places, locations or things and seeing how people might fit into that. It is much better that our principles begin with persons and how we protect the various rights and responsibilities—we have not used that word, 'responsibilities', much at all—of individuals and then what things associated with that come into play.

Senator PATERSON: I am interested in further exploring this issue of people of faith or conscientious objection who are not ministers in a church having a right not to participate or a right to refuse to participate in a wedding ceremony that they do not believe in or they do not recognise. My understanding from both your organisations is that you want to extend that right to include people running a business, for example. There is the classic case of a baker who makes cakes or a wedding photographer. That is right, isn't it?

Bishop Stead : Broadly, yes. The argument becomes stronger the closer the connection is with the actual wedding ceremony—the photographer who is spending the whole day on site as part of the ceremony, or a musician at the ceremony, some cake bakers where it is an artistic work as an artisan product. Providing chair hire to a wedding or something like that, I see less justification for protecting everything connected with a marriage. It is where the personal services are on site or the artistic contribution is intrinsic to the wedding itself. The closer that nexus the more important it is to give people the option to not be forced to participate against their conscience.

Bishop Comensoli : I would suggest three words in this regard: what is intrinsic to, directly associated with and intimately involved. The taxi driver driving somebody to a wedding? No.

Senator PATERSON: Yes, that is the kind of line I am interested in exploring further. Do you see as a meaningful difference, on someone's wedding day, the difference between the ceremony that they have and the reception they might hold later to celebrate it? Is it a meaningful division for a photographer to say that they did not want to be there for the ceremony and not participate in that? A reception is just a celebration and not intrinsic to the wedding itself. Do you see that as a meaningful difference?

Bishop Stead : For most of the receptions that I have been to, they are very much an intrinsic part of the celebration of the day. So I probably would see the coverage extending to the reception afterwards as well.

Bishop Comensoli : If you ask anyone who is going to a wedding what do they see as the wedding, it is the whole day.

Senator PATERSON: I understand that. I think there would be a lot of sympathy for you in your position that a photographer should not be compelled to participate in a wedding ceremony, but if the same couple wanted to hire that photographer to take photos of their 30th birthday party there would be much less sympathy that they should have a right not to participate—

Unidentified speaker: Or their wedding anniversary.

Senator PATERSON: Yes, or their wedding anniversary. There are lots of other events that are not intrinsically connected to having the wedding itself but may also involve some kind of acceptance and recognition of the existence of the relationship. Where would you draw the line there?

Bishop Stead : I would not see there would be any need to protect individual consciences there. In many of the overseas cases, as I said, the bakers and the photographers already had pre-existing commercial relationships with the gay people who were their clients. It is not a right to discriminate against gay people generally; it is a right not to participate against conscience.

Senator PATERSON: To take up Senator Pratt's point then: a baker of a wedding cake should be free to refuse to bake a cake that, for example, has two husbands or two men on a cake because that is against their faith, but if the same baker is asked five years later to bake a cake for the wedding anniversary that looks the same and is the same as the one they would have had on their wedding day, they should not have that right?

Bishop Comensoli : There are sorts of details that I do not think any piece of legislation can ever legislate for. You are asking hypothetical questions that cannot be answered. But the principles are important here, so I will come back to those three words: 'integral', 'direct' and 'intimate'. Those give you a principle around making these sorts of judgements, commenting on this particular cake and that particular cake, is it pink or is it red or is it—you know?

Senator PATERSON: I agree, but these principles will be tested at some point and it is our task to reflect them into law. The only way we can do that is by example and what we want to cover and what we do not want to cover. One of the lessons from the United States experience is there is a very good chance that there will be people who take an activist role and try to test the limits of this law. The most famous instance of that is the pizza shop and the couple who actively sought to find someone who would refuse them in order to have a case against them in the courts. We may find that we face a situation very similar to this so that is why I am interested in your—

Senator PRATT: I do not know why you would wish that on yourselves, to be honest.

Senator PATERSON: No, nor do I, but I suspect there might be people who will go down that path. That is why I am interested in your view of exactly where we should draw the line.

Bishop Comensoli : It is not what the church might want to wish on somebody; it is somebody's individual conscience at play here—and that matters.

Senator PATERSON: Bishop Stead, do you have any comment on that?

Bishop Stead : A positive statement that says that in Australia we recognise that there are legitimate different views about marriage and that some people will continue to hold a view that marriage is intrinsically between a man and a woman, and a person should not be forced to act against their conscience in relation to that belief. That would be sufficient. I do not think you could argue that taking photographs at a 30th birthday has anything to do with your view on marriage. Yes, maybe baking the first wedding anniversary cake that is exactly the same as wedding cake may be a violation of someone's view about marriage, but it needs to be framed in terms of a conscientiously held belief that marriage is between a man and a woman. Some recognition of that, in a positive way, would be a sufficient demarcation between not giving a general right to discriminate but allowing a right to not participate.

CHAIR: Senator Pratt, do you want to read into Hansard some questions to be put on notice?

Senator PRATT: Yes, Senator Rice has some questions she would like to put before you. To start with: do you acknowledge that a majority of Australians support equal marriage and do not believe that it is necessary to have a married man and woman to bring up happy, well adjusted children? Senator Rice also asks: can you accept that they feel that without equal marriage your views are being unreasonably imposed on those people? Do you acknowledge that not allowing same-sex attracted and gender diverse people to marry is discrimination and that the majority of Australians believe it to be unjust discrimination? I will put those on behalf of Senator Rice.

Bishop Comensoli : Yes.

Bishop Stead : Yes.

CHAIR: I thank you for both your submissions and for appearing and providing evidence today. Could you please have anything that you have been asked to take on notice back to the committee secretariat within one week. I know that is a tight time frame, but they also have a very tight time frame in terms of working with us to draft and publish the report. Thank you again for your submissions.

Bishop Stead : When will we be given a copy of those questions on notice? I note the Hansard timetable is outside the week. We are actually going to need that.

CHAIR: We will get them to you today and the Hansard will be published tomorrow. We are trying to expedite that. Thank you.

Bishop Comensoli : Thank you very much.