Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill
Marriage Amendment (Same-Sex Marriage) Bill

HOWELL, Mr John, Legal Section, Australian Human Rights Commission

SANTOW, Mr Edward, Human Rights Commissioner, Australian Human Rights Commission

SWEENEY, Ms Laura, Specialist LGBTI Adviser, Australian Human Rights Commission


CHAIR: Welcome. Thank you for your submission and for appearing before the committee today. Would you like to make a brief opening statement.

Mr Santow : Thank you for inviting the Australian Human Rights Commission to give evidence on this exposure draft bill. This is the first time that the government has published a bill that would expand the legal definition of marriage. We commend the government on that. Regardless of whether you support or oppose that change, it is good that we are able to discuss the substantive issues in this open forum.

The commission is here to provide expert advice on how international human rights law and also Australian anti-discrimination law apply to this bill. The key human rights that are engaged by the bill are articles 2 and 26 of the International Covenant on Civil and Political Rights—the ICCPR—which protect the rights to equality and non-discrimination, and also article 18 of the ICCPR, which protects freedom of thought, conscience and religion. On the marriage issue, those rights come into tension and a balancing process is needed.

The commission supports the bill's proposal to expand the legal definition of marriage to include unions between two people, irrespective of their sex, sexual orientation, gender identity or intersex status. That will enhance equality in Australia. At the same time, the rights of everyone affected by this change must be respected, especially people of faith. The change proposed in this bill to Australian law focuses on civil marriage. Given that marriage can also have a religious dimension, our law should also accommodate religious organisations in performing that religious dimension. We all know that this is a hotly contested debate and we should beware of views at the extremes. For example, some argue that international human rights law absolutely mandates marriage equality or same-sex marriage; others argue the exact opposite. The truth is more complex and nuanced than either of those absolutist positions. Clearly, there is a growing body of jurisprudence that points in more than one direction, but inconveniently perhaps there is no definitive case, judicial opinion or other source that resolves that legal question once and for all.

Having said that, we are able to distil three key points from international human rights law. Firstly, the rights to equality and non-discrimination support expanding the definition of marriage to two people, irrespective of their sex, sexual orientation, gender identity or intersex status. Secondly, at the same time, freedom of thought, conscience and religion is protected by enabling religious organisations and ministers to act in accordance with the doctrines, tenets or beliefs of their religion, including by refusing to participate in same-sex marriages.

Thirdly, in striking the right balance we need to be guided by the principle of proportionality. Professor Parkinson's submission to this inquiry takes a different view to the commission on a number of issues, but I respectfully agree with this observation of his:

"Balancing" does not mean that one right is crushed under the weight of the other.

Instead, on this issue we must show care, compromise and common sense.

Turning to the specific bill, the commission endorses many of the bill's key provisions. For example, the commission supports the bill's inclusive approach to the definition of marriage while maintaining long-standing and important prohibitions on child marriage, incest and so on. Our proposed amendments to the bill are intended to be consistent with the bill's evident objectives. In relation to the exemptions, the commission proposes a simpler approach that is consistent with the current Sex Discrimination ACT approach, but applies it to this new context of marriage—that is, section 37 of the Sex Discrimination Act provides that a religious organisation can discriminate only on the basis of sexual orientation, gender identity or intersex status if the act in question was in accordance with:

… the doctrines, tenets or beliefs of that religion or … necessary to avoid injury to the religious susceptibilities of adherents of that religion.

We are open to questions.

CHAIR: Thank you very much. I will just start our clock here. We are tight for time, and I am trying to make sure everyone gets an equal shot at asking questions.

Thank you for your submission and for your verbal comments. I will just come quickly, if I can, to the three points you have raised. I welcome your comment that there is no, perhaps inconveniently, single case that gives a very clear direction in terms of case law moving forward. I note though that your submission and your comments indicate that there is a momentum towards expanding the definition. In your submission, you draw particularly on, for example, some of the comments by the European Court of Human Rights about changing consensus and on the South African case. Looking at the European Court of Human Rights, and particularly their most recent judgement around the Finnish case that they considered, they actually mention multiple times in there their own jurisprudence, which they have repeated on a number of occasions, that there is no consensus for change and that the existence of an equivalent system means that there is no derogation of rights for an individual and the South African case was premised predominantly in the judgement on their constitution, because they did not have an equivalent system of rights. It is important to get on the public record that your opening statement that there is no clear guidance is actually where it stands at the moment. Probably the clearest guidance, I think, in terms of the current covenant is still Joslin, where, in the closing two paragraphs of the Human Rights Committee's consideration of Joslin, they make that same point—that if there is an alternative system, then there is not, ipso facto, discrimination applied.

The other point I would like to get you to comment on is around the concept of—and this is going to your second point, where you talked about the importance of religious freedom, you talked about ministers and organisations. But article 18, and article 19 for that matter, goes to individual rights, as, in fact, all of the rights do. We have had the case brought to us in evidence of the baker in Ireland, for example, who had long-term customers who were same-sex attracted. He served them without discrimination—in fact, he had a good relationship with them—but when it came to them asking him to prepare a cake with a specific message supporting same-sex marriage, he said, 'I'm sorry; that's a bridge too far.'

The default response of many of the submissions has been to look at articles 2 and 26 and say, 'They say that you cannot discriminate on a range of protected factors', including sex, which, as I think you pointed out in your submission, has been expanded to include sexual preference. But if you look at the committee's guidance on that—I think it is guidance note 18 or general comment 18—they say that that should be applied so that there should not be discrimination based 'solely' on one of the protected attributes. So, if you apply that to the baker's case in Ireland then what that says is that he has not discriminated against the person based solely on their sexual preference, because he served them and had a good relationship with them over many years. But when it came to the combination of sexual preference and the form of relationship then he said: 'Look, I'm sorry. That offends my personal individual religious belief.'

I am just wondering if you can comment on whether that is a path we should be exploring in trying to find this balance between saying that discrimination solely on the basis of your sexual identity is against the law and it is not acceptable in our society, but where it is combined with another aspect then it is not discrimination. Again, that is consistent with the jurisprudence of both the Human Rights Committee and the European Court of Human Rights, where they have consistently said that differential is not necessarily discrimination.

Mr Santow : I gather there may be three questions in there. The first was that you invited me to comment further on the international jurisprudence. Is that right?

CHAIR: I am really saying that international jurisprudence says that there is no direct path forward. But one of the things that I think would help us to find a path forward is guidance in general comment 18—I believe it is that one; I can check that—where they talk about the fact that discrimination must not be 'solely' on that basis. If we use the Irish baker as an example, does that give us a path forward to say that you may not, under any circumstances, discriminate solely on the basis of somebody's sexual identity, but where that is in combination with another aspect, in this case a form of marriage, then your right to freedom of conscience and belief is held to be valid?

Mr Santow : Let me make a few observations. The first is that the international covenant itself, and all of the interpretation of that covenant, makes a very important distinction between the right to hold a particular belief, be it religious or otherwise—and that, in a sense, is an absolute—and, on the other hand, the expression or the manifestation of that belief. It is that second thing which can be qualified. That makes good sense; you do not even have to be a lawyer. The general harm-to-others principle means that, in manifesting a belief, you can come into contact with others, and it is that contact with others that, I guess, is the typical point of friction where it is necessary to look very hard at how to strike a balance.

The second observation I would make is that in providing a service it is perhaps relevant to look at the context of that service. Sometimes that may be highly relevant, but, on the whole, a service is a service. If you start to make bright-line distinctions that enable someone to say, 'Well, I am motivated by two purposes; one of them is lawful and one of them is unlawful' then you are inviting a kind of an artificial process where people can shoehorn themselves in a situation where they are essentially discriminating against people. It is very, very difficult to speak about this sort of thing in the abstract; but it is a dangerous path where you may be solving one problem by creating another one.

Can I just make one final point. Lawyers often distinguish between the sword and the shield. In a sense, exemptions are a sword, and they are not a particularly effective protection of human rights. The Human Rights Commission has been on record for a very, very long time—since before the start of this millennium—in saying that there should be stronger protection for freedom of religion and, indeed, that religion should be a protected attribute. Under the Racial Discrimination Act, as it is currently being interpreted, some ethno-religious groups are clearly able to claim protection under the Racial Discrimination Act and some are probably not, and that anomaly is that. We would urge that that is perhaps a more useful way of considering this question, rather than trying to carve out exemptions that would be incredibly difficult to do and keep them watertight.

CHAIR: Your comment about the sword and the shield is very relevant to this point because the case of the baker in Ireland is not abstract. That is a very real and ongoing issue before that small business. You made the comment based on one thing that is legal and one that is not. In fact, his right to freedom of religion and conscience is legal. That is a universally supported right. That is not illegal. What this committee is trying to do is say: how can we find a way forward to balance that right which is legitimate? As you said in your opening statement, it should not be crushed with balancing the right of people not to be discriminated against solely on the basis of a protected element likes their sexual identity. That is why the wording by the United Nations Human Rights Committee in general comment 18 is very relevant. I invite, perhaps on notice, the commission to come back to the committee to say whether that is a path we could explore. We had comments earlier—I think it was by the Catholic Bishops Conference—where they believed that the proximity of a service to something to do with a marriage—I cannot remember the three words. Senator Kitching has them here.

Senator KITCHING: Integral, direct and intimately connected with.

CHAIR: The argument was, for example, that the artistic quality of somebody making a cake and decorating it is all of those things connected, whereas somebody perhaps providing the chairs for the reception is not necessarily so connected to that. By looking in a nuanced fashion at that guidance from the United Nations Human Rights Committee, where discrimination cannot be solely based on something, does that give us the option to balance and not crush the right of the baker, in that case, to say, 'Hey, mate, I've served you for years. I've baked your cakes because I don't discriminate against your sexual orientation, but I do have a valid conscientious and religious objection to a same-sex marriage'? The decision is not based on the person, and that has been demonstrated by conduct; the decision is based on the attribute of the relationship. Does that give us a path forward? I invite the commission to come back to us with some consideration of that.

Mr Santow : We will gratefully take that invitation.

CHAIR: That would be great.

Senator PRATT: I point to some parts of your submission where you make some suggested amendments. You have referenced the Sex Discrimination Act. I am interested in understanding the extent to which the current exemptions that exist for religious organisations within the Sex Discrimination Act currently apply to the Marriage Act and services that might be provided in relation to a marriage.

Ms Sweeney : I might just clarify. In relation to the relevance to the Marriage Act, at the moment the acts of a religious organisation in relation to service provision would not fall within the ambit of the Marriage Act in so far as it is specific to solemnisation of a particular marriage. I just wanted to clarify.

Senator PRATT: For example, there is the extent to which a church organisation can refuse to marry a divorced couple. I know they have the right to do that. Relationship status is an attribute within the Marriage Act. It is the extent to which, for example, a church organisation can discriminate in the employment of staff based on their marital status, currently, provided the purpose is close to their doctrinal practice. So, for the purpose of the Marriage Act, are you relying on the Sex Discrimination Act or is the Marriage Act itself treated quite separately?

Ms Sweeney : I might make one observation before handing it back over to the commissioner. At the moment, the way the exemption in the Sex Discrimination Act operates, in section 40(2A), is that it is limited to acts in compliance with the Marriage Act. So there is an issue about whether—and this is why we understand the proposal in the exposure draft to be included as authorised by, because the act of refusing a marriage, on our understanding at the moment, would not fall within the scope of that section 40(2A) exception.

Senator PRATT: It does not, currently, because it is not a service as defined. Okay.

Mr Santow : The point of section 40(2A) of the Sex Discrimination Act is to treat separately, for the purposes of the Sex Discrimination Act, acts that fall within the scope of the Marriage Act. You gave the example of education. In an educational context, 40(2A) you can ignore, and it is simply a question that a religious organisation has to turn its mind to whether they are within the scope of section 37 of the Sex Discrimination Act, whether it is within their doctrines, tenets and beliefs et cetera.

Senator PRATT: So in the case of a church organisation refusing to provide—you could think of the case of a school, for example—access to their church for the purposes of a marriage for someone who has been divorced and the school refuses to do that, which parts of the law would you be looking at in looking at a decision of the school to do that? Would that refusal currently be unlawful?

Ms Sweeney : It would be a matter for the courts.

Mr Santow : And it would depend on the doctrines, tenets, beliefs et cetera, those words in section 37. If the religious organisation can bring themselves within that exception, then they could refuse to provide that service.

CHAIR: Can I clarify something? You said divorced. Would a heterosexual couple that is divorced still be covered by the Sexual Discrimination Act if it were an objection about divorce and not about someone's sexuality?

Ms Sweeney : Marital status discrimination and relationship status is also a protected attribute.

Senator PRATT: What I am trying to work out is the extent to which the Sex Discrimination Act already covers the kinds of carve outs that are proposed within this bill. It seems that there might be some scope for that, already, to be the case without creating new exemptions.

Mr Santow : What we have accepted, at least for the sake of the argument, is that the Sex Discrimination Act exemptions are there. Indeed, they were considered very carefully by the government in drafting their exposure draft bill. What our proposal for changing the bill is designed to do is to streamline that process a bit further and basically say, 'Okay, if the basis for any exemption is the current exemption in the Sex Discrimination Act, here is how you do it.' Essentially, the vast majority of recommendations for reforming the bill are designed to achieve that end—in other words, to not create new areas of discrimination but also not to wind back what religious organisations currently are able to do in this new context.

Senator PRATT: Stepping back, a previous panel was arguing very strongly they do not want any new exemptions and asked what was wrong with the current law. What you are putting forward in relation to the existing exemptions, even though it might be inserted specifically into the act, is what you would view as an expression of the current law?

Ms Sweeney : That is right. Our concern about the proposed amendments in the exposure draft with respect to religious organisations is that at this stage the government's intention is unclear as to the extent to which it would differ from the existing exceptions in the SDA. So, to the extent that we do not know what the intent was of inserting slightly differently worded exceptions, we would submit that the existing section 37 is sufficient. If that needs to be included or, as we have suggested, alluded to in the Marriage Act, then that might be a way of ensuring consistency.

Mr Santow : I will try to put that in other words, because this is a really technical area of legal drafting. I am trying to put it as simply as possible. What this bill would do is it would create a new area where the law previously has not gone. What our recommendations are intended to do is to say: here is how you apply the exemptions as they currently apply in the Sex Discrimination Act to this new area, without making it—

Senator PRATT: You are clarifying that they do not currently apply to this area of law?

Mr Santow : Because marriage is defined as only between a man and a woman under the current act—

Senator PRATT: No, I am talking about the current application. Using the example of a divorced couple being refused service, I am merely trying to demonstrate that, in bringing the Sex Discrimination Act provisions over, there are a whole range of exemptions that apply. It is not just in relation to same-sex status.

Mr Howell : It is very difficult to comment on a hypothetical example, because how an exemption in the Sex Discrimination Act applies will obviously depend on all of the circumstances of a particular real case. But the existing religious exemption in section 37, for example, would theoretically apply in those circumstances, provided that the facts of that particular case fell within the drafting of the particular clauses of section 37. So it is a little bit difficult to give a blanket answer about quite a high-level hypothetical case.

Senator PRATT: A similar example might be someone who is transgender who is legally recognised as their affirmed identity. They have all the legal protection of the current Sex Discrimination Act and of the current Marriage Act. If an organisation were to refuse them service according to their doctrine, how would that apply, for example, to the use of a premises or in relation to a marriage?

Mr Howell : If the refusal were by a body established for religious purposes and the refusal was necessary to conform with the doctrines, tenets or beliefs of the religion of the body or to avoid injury to the religious susceptibilities of members of that religion, then section 37 should apply. But of course there are factual scenarios with bodies which are more or less intimately connected with a religious body. There might be an argument about whether a body is a religious body or not, but that is the kind of factual issue that a court will have to approach in any exemption under any piece of legislation.

Senator PRATT: In describing that, you are describing the application of the current Sex Discrimination Act, aren't you?

Mr Howell : Yes, that is right.

Senator PRATT: Thank you.

Senator PATERSON: I apologise for coming in and out. I was actually on a conference call of the Human Rights Committee, so please excuse me for that relevant interruption. Therefore, if I ask questions that have already been asked and covered, please let me know and just point me to the Hansard rather than repeating yourself at length. I would like to go into first principles and understand, for example, why you have formed the view that it is appropriate for a minister of religion to not be required to officiate a same-sex wedding.

Mr Santow : It is an indication of the right to freedom of religion. I guess bound up in your question is perhaps a distinction between ministers of religion and civil celebrants. The basis of that exemption is that the minister of religion is part of a religious organisation that has a series of doctrines, tenets or beliefs and that she or he is conforming to those doctrines, tenets or beliefs. It is part of something bigger than themselves—if that makes sense. Indeed, they are given, in a sense, a licence to undertake that activity by the religious organisation itself. That certainly gives a religious minister a very special status, and that is the foundation of why we accept the extension of the current exemption in the Sex Discrimination Act applying in that context.

Senator PATERSON: Is it your view that religious freedom is something which is granted to groups or organisations and members of those organisations in a professional capacity and not an individual right which is enjoyed by people who subscribe to those values or those beliefs?

Mr Santow : I am not saying that at all. I am saying something quite different. I am saying in the context of the act of marriage, the act of solemnising a marriage, which can have both a civil and a religious dimension, you need to look very closely at the basis on which the individual who is solemnising that marriage is doing so. I will leave it there.

Senator PATERSON: Let's get specific then. We heard earlier evidence that there are civil celebrants who are in fact ministers of religion but just for regulatory reasons they exercise their role as a marriage celebrant through the civil process available to them rather than as a minister of religion. They are a priest of a church which has an established doctrine and they grant marriages in accordance with that doctrine. Why should they be treated any differently to one who has got their power to grant marriages through a different means?

Mr Santow : We might ask the same question of a doctor. Let's say you are a medical doctor and you are operating in a hospital. That carries with it a whole series of ethical and legal obligations and you are expected to carry those out very diligently. If in a shed at the back of your home you then put out your shingle and say, 'I'm happy to perform operations' then that is quite—

Senator PATERSON: I do understand that analogy but there is no freedom to practice medicine, or not one that I am aware of, but there is religious freedom. Correct me if I am wrong: there is not a right to operate in your backyard.

Mr Santow : No, but the analogy holds and here is why: the act that the religious minister or the celebrant is undertaking is a service; it is a really important one. As I said before, it is protected or it is governed by legislation, so it has a civil dimension. If you have a religious bent then it has a religious dimension as well. You are performing a very important service. It is not a wholly individual act. It is an act that is in a sense a public act, but it is also an act that is given special status by the state itself.

Senator PATERSON: The distinction you draw is perhaps clearer in that they are empowered by the state to do this consistent with their religious doctrine. So if you are empowered by the state to do this not for the purpose of your religious doctrine then you do not deserve that same protection that someone of an established religion would have?

Mr Santow : I am not sure of the question of deserving or undeserving.

Senator PATERSON: It should be permitted or should not be permitted.

Mr Santow : Right. If you are solemnising a marriage in the context of being a religious minister as a religious minister then we should accept the strictures that apply to you. If you happen to be a religious minister just as you may happen to be tall, short or whatever but you are performing that civil marriage and only a civil marriage in that different context then you should be seen as wearing a different hat because you are wearing a different hat.

Senator PATERSON: I am interested in one other branch of this issue. As I said to some witnesses here before—and you might have been here—not the only origin, certainly, but one of the origins of our protection for religious freedom if article 18 of the Universal Declaration of Human Rights. I will not read it out entirely, but, as I am sure you would be familiar, it is not just about religious freedom; it is also about freedom of thought and conscience. So my question is: in a secular society where we have believers and non-believers, why is someone's freedom of thought and freedom of conscience developed through a non-religious belief system any less worthy of protection than values that have been derived from religious teachings?

Mr Santow : That is not the point that we are making in our submission. What we are saying very carefully is: how does international human rights law and, indeed, how does Australian domestic law deal with this issue of freedom of conscience? It deals with it very rarely, but the main situation is really sui generis. It is the situation of taking a combat role in respect of military conscription. That is the main area in which conscientious objection is dealt with in Australian law. And the context is really important. The context is one in which you may be required to maim or kill another person. And so that is taken very seriously.

Senator PATERSON: It would be agreed on conscription, but I am talking about article 18, which says there should be protection for freedom of thought, conscience and religion as if they sit alongside each other, but they are not necessarily driven by one or the other. We do not have freedom of thought and conscience just on the basis of religious belief but also on our values. My understanding of our position is that the religious beliefs need to be protected by ministers of religion, but, if you come to the exact same conclusion as a minister of religion but not through a religious basis—you come through it just because of your secular values—the minister of religion does have a right to be protected or exempt and the other person does not.

Mr Santow : I guess there is conflation bound up in what you are talking about there, and the conflation is between a religious dimension of marriage and a non-religious or civil dimension of marriage. The objection really is in relation to the civil dimension of marriage, which has to have some special protection because it is part of the state. Under section 116 of our Constitution, there is an important marker from the founding fathers of the Australian polity that there should be a separation of church and state, and so there is a special distinction that was drawn there, but the corollary of that is that civil services should be widely available. Indeed, the default position is they should be universally available, and so any break on that—in other words, any exemption that stops an individual being able to access one of those services—needs to be scrutinised very carefully.

Senator PATERSON: Of course. I agree with that.

Mr Santow : That is why the distinction that you have observed arises. It is not because there is some lesser protection or less seriousness accorded freedom of thought or freedom of belief; it is how that actually evolves and how that applies in a real context.

Senator PATERSON: Before I return to the chair, I have a further analogy here. We heard earlier about how a doctor who has an objection to participating in abortion is not required to participate in abortion. As far as I am aware, that doctor is not required to demonstrate that their objection has a religious basis at all; it is just conscientious objection. They do not have to demonstrate that it is connected to any church doctrine or, indeed, that they have any religious faith at all. Why should that be any different? Doctors in a sense are licensed in the way that a civil celebrant is. They have the authority of the state to perform their profession.

Ms Sweeney : I think, Senator, we would make a few observations about the difference in the way that the exemption would operate: firstly, noting that it is not a feature of antidiscrimination law the way that plays out and, secondly, noting that, in respect of doctors providing a service, the conscientious objection is in relation to the particular service that is being provided not to the class people to whom it is provided. We think that is a very significant distinction in terms of the scope of that conscientious objection.

Senator PATERSON: Thank you.

Senator KITCHING: I found your submission so helpful I was not even going to ask any questions, but this is not my area of expertise. Would you see section 37(1)(d) covering the Ashers Baking scenario, for example, where you have devout believers who have a commercial service? I am not aware of how often and how well section 37 in toto has been tested.

Ms Sweeney : I will make one observation before handing to John. Firstly, the section 37(1)(d) exemption works in relation to religious organisations as distinct from individuals who are not acting as part of a religious organisation.

Senator KITCHING: It talks about the religious susceptibilities of adherents to the faith—I cannot quite remember the wording.

Mr Santow : Section 37(1)(d) begins with:

any other act or practice of a body established for religious purposes …

So the conduct you have to look at—

Senator KITCHING: Let us say I have a bakery and I am a regular attender of the Belfast Catholic Church, which I think they are.

Ms Sweeney : The bakery would not be an organisation established for a religious purpose.

Senator KITCHING: So it has to be established for a religious purpose. It is not the adherents to it.

Ms Sweeney : That is right. The exemption applies to a particular class of organisations—this is, religious organisations—and then in determining whether or not the exemption stands you have to ask about those criteria and whether they apply, so either in accordance with the doctrines, tenets or beliefs of that particular religious organisation or the discrimination is necessary in order to avoid injury to the religious susceptibilities of adherents of that religion.

Senator KITCHING: So if we were to consider the goods and services exemptions where would that fit in? Given that we are balancing people's rights—

Ms Sweeney : The exemption as proposed in the exposure draft is also similarly limited to I think bodies established for religious purposes, religious bodies or religious organisations so there is no sense in which, at least on our understanding without the explanatory memorandum, the proposed exemption in the exposure draft would be broadening to a baker, for example, as drafted.

Senator KITCHING: I agree with you. So when I read the exposure draft I do not really see that but I see it is being considered in many submissions.

Mr Santow : To put it in other words: noting it is a hypothetical, but it appears that the hypothetical you gave of the Irish example appears not to fall within the scope of the exposure draft bill's proposed section 47B and it also does not appear to fall within the current section 37 of the Sex Discrimination Act.

Senator KITCHING: So I think if the committee were to consider those goods and services exemptions and given one of our terms of reference is to gain support in the Senate, we may well have to consider some exemptions of a commercial nature. I do not know how the Senate is going to vote on this—who knows? I think we would have to add another section because there is nothing in the Sex Discrimination Act from memory that really applies.

Mr Santow : The counterargument to that is if you are a commercial organisation or just an individual providing a commercial service then Australian law for many years has not allowed you to undertake what is unlawful discrimination. The current exposure draft bill reflects that, and we support that. If what you are saying is that there may be new areas that are not currently set out in the exposure draft bill where unlawful discrimination would no longer be unlawful, we would need to look at those very carefully and we would be very, very wary of them.

Senator KITCHING: Thank you.

CHAIR: I will just follow up on that. In terms of that provision of commercial services, we have had evidence to the committee about people who, because of the content of their beliefs, which have then been represented in a book, have been refused services by a printer. Others who wanted to have advertisements have been refused commercial service by a TV station or a radio station to play those advertisements. Is it your contention then that that activity by those agencies is illegal?

Mr Santow : As a lawyer, it is really difficult to answer the hypothetical without knowing all of the details. But can I say this: one of the earliest points I made was that freedom of religion is vitally important in Australia. Indeed, we can do better to protect freedom of religion, and that is precisely why I referred to the fact that for many years now the commission has recommended that religion be a distinct protected attribute. Regarding the sort of activity you are talking about now, the best way of protecting those individuals who may suffer adverse consequences and, indeed, discrimination because of their religious belief would be to give them that legal protection. Would the law protect them in all circumstances now? It would really depend on the details. And it should not; it should be absolutely clear cut. And that is why I am answering the question in that way.

CHAIR: Perhaps you could take a question on notice before I go to Senator Smith. One of the recommendations that came to us was the concept of a broad no-detriment provision where somebody could not be placed in a position of being harmed as a result of their beliefs. I will give you an Australian example. A Mr Leigh Jones was manager with an IT firm. He actually did all the website material for the Safe Schools program. I cannot remember the exact details, but I think the firm was going to go to a parade or a celebration, and he said, 'No, look, because of my beliefs I won't go.' He was dismissed because of his religious beliefs on that. The concern many people have expressed is that if that can happen now, then if the law changes to actually support same-sex marriage and someone says, 'Well, no, I don't want to deliver this service within my firm because of my religious belief'—or, in this case, it was that he delivered the service within his firm, he just did not want to go in his own time to support an event, and he was sacked—that seems an incredibly unfair detriment.

Senator PRATT: [inaudible]

CHAIR: Well, there have been a number of cases. Whether it is the executive—

Senator PRATT: I am not saying it is right.

CHAIR: from PwC or whether it was Dr George, the psychiatrist who was forced to stand down, there has been very clear detriment to people on the basis of their belief, and this proposal was that we should have a no-detriment provision around these issues of conscience and belief. I would welcome your feedback to the committee on how that could work and how that may fit with our existing laws or, indeed, what changes to our federal and state law may be required to enable that to occur. Senator Smith?

Senator SMITH: I am happy if you would like to answer Senator Fawcett's question now.

Mr Santow : I think Senator Fawcett invited us to take that question on notice, which I think we probably should do to give a proper answer.

Senator SMITH: Just going back to your freedom of religion comments, where is the best place that that legal protection should be put?

Mr Santow : A number of years ago the federal parliament was considering amalgamating or consolidating the various different anti-discrimination statutes. The commission's proposal then was to put it in that consolidated piece of legislation. That would be a logical thing to do. In the absence of that, you could have a stand-alone statute that specifically dealt with freedom of religion or you could expand the Racial Discrimination Act. There are, of course—and this is particularly acute to me, given my own family history—some real dangers in treating race and religion as if they were one and the same thing. I am fully aware of that. But if the statute itself were broadened in its scope appropriately then that may be a similarly appropriate way of dealing with that issue.

Senator SMITH: Section 109 through to about 122 in your submission talks specifically about the issues around conscientious belief, which I thought was very enlightening but I also thought it was quite categoric. From having read your submission, I get the impression that, in Australian law and practice, this is not a contested issue nor should it be a contested issue, substantially contested.

Mr Santow : In a sense I agree with you. It has never been permissible under Australian law to say: 'It is my belief, my conscientious belief, my very sincere belief that, for example, two people of a particular ethnicity are subhuman or inferior to me and therefore I am going to discriminate against them.' That has never been permissible. It has not been permissible in respect of any other ground of discrimination or protected attribute. So in that sense, yes, I think it is settled law and probably also settled policy for many decades that we do and should proceed in that way.

Senator SMITH: What are the risks of allowing conscientious belief provisions around same-sex marriage.

Mr Santow : I guess there are two particular risks but there are many more than that. The first is that you would immediately create a category of person in Australia—the only category—against whom you can discriminate on the basis of your conscience or your belief. Nobody else, no other category would be subject to that. That would be sending potentially a very dangerous message to that group that they are in some way inferior to the rest of Australia. The second is that it would be perhaps a retrograde step that could be followed in other areas of antidiscrimination law. At the commission, we are concerned about this issue but we also have a broader role in overseeing other areas of antidiscrimination law and we would be very worried if it were seen that that particular exemption could then be applied more broadly to other areas or to other groups.

Senator SMITH: So it could actually make permissible over time attitudes to interracial marriages?

Mr Santow : Potentially absolutely, and we would be very worried about that.

Senator SMITH: And make permissible possible objections to age differences between two married people?

Mr Santow : It could.

CHAIR: I think that answers some questions. Could I ask you to comment on the role of chaplains. We have had a number of submissions argue that, like celebrants, chaplains should not be given any exemptions unlike religious ministers. But evidence was given to us yesterday that chaplains are in fact ordained ministers who are licensed by their denomination and so they are actually working within the confines of a doctrinal structure albeit serving perhaps in the military. From the commission's perspective, should they be treated the same as a minister of religion given that they are working within the confines of a recognised religious denomination?

Mr Santow : It is a very good question. It was not an issue that we had anticipated prior to drafting our submission so it was not covered in our submission. We were certainly informed this morning that it had come up but I would be reluctant to give you an answer on the hoof, particularly given that it is an anomalous situation. If you will permit, we will take that question on notice.

CHAIR: That would be good. My last question for you: the Human Rights Commission used to have a freedoms commissioner, who is now one of our colleagues in the lower house. I am just wondering: has that role, or that function, been filled within the commission?

Mr Santow : Tim Wilson was the Human Rights Commissioner and he resigned in February, I think, when he was considering running for parliament. I am his replacement and I was appointed—

CHAIR: He had a very specific focus on freedoms—freedom of speech et cetera—and your role clearly includes all of the aspects of the ICCPR and our obligations and the fact that you have a specialist adviser, and Ms Sweeney is sitting here with you looking at the LGBTI side of things.

Senator PRATT: Tim Wilson did the same. He had responsibility for LGBTI issues as well.

Mr Santow : His mandate and mine are identical. The legislation has not changed at all. In fact, if I can record this publicly, I am very grateful to Mr Wilson for much of the work that he did and for briefing me on that very important work, including in the LGBTI space that we are taking forward as an organisation and that certainly I personally, as Human Rights Commissioner, am taking forward.

CHAIR: Again, I am just trying to understand the focus of priority here. Do you also have a specialist adviser for article 18 issues?

Mr Santow : I should point out that Ms Sweeney is the specialist adviser to the commission, not to me personally. I do not have any specialist advisers. Every staff member at the commission is highly competent and provides advice on a range of issues.

CHAIR: The way it is represented in the notes to us is that Ms Sweeney's role is specifically advising on LGBTI issues.

Mr Santow : That is correct—to the commission, yes.

CHAIR: Right. So, this committee is trying to find a path forward to balance competing rights, and clearly much of the article 2 and 26 issues get tied up in the nondiscrimination side. I am just wondering what additional resources are available to you to actually provide input on article 18. That is where my questioning is going.

Mr Santow : I see what you are saying. It is something that we are able to bring in externally—expert advice on article 18 issues—and we do. We also, particularly I, consult very rigorously with people of faith and others who have particular article 18 expertise, and we have also recommended that the government consider resourcing internally some greater expertise. But I hasten to say that experts on article 18, be they people of faith or not, have been exceptionally generous with their time in providing their advice and expertise to me personally at the commission but also more broadly to other commissioners and staff, and I know that Ms Sweeney herself regularly liaises with people with that expertise.

Senator PRATT: Senator Rice has some questions she would like to put forward, if I may on her behalf, which is to ask you to reflect on exemptions based on conscientious belief as distinct from religious beliefs.

CHAIR: I think that was actually covered. I had a nod from Senator Rice before that—

Senator PRATT: That is fine, if it is covered. Thank you.

CHAIR: In that case, can I say thank you for your submission and for your evidence here today. You have undertaken to get back to the committee on a number of issues, and because of our time frame I am going to ask you to do that within a week, if you could. We would certainly welcome that further contribution and indeed further dialogue, probably, on some of these issues as we try to find a way forward.

Mr Santow : We will certainly make our best endeavours to comply with that one week.

Proceedings suspended from 12 : 44 to 13 : 47