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
24/01/2017
Marriage Amendment (Same-Sex Marriage) Bill

BECK, Dr Luke, Private capacity

FOSTER, Associate Prof. Neil, Private capacity

PARKINSON, Prof. Patrick, Private capacity

[14:35]

CHAIR: Thank you for being here, for your submissions and for the evidence you will be providing here today. Would any or all of you like to make a brief opening statement?

Dr Beck : I might start by making two broad general points without getting to the nitty-gritty of what I put in my written submission. My first point is that none of the exemptions from anti-discrimination law in this bill are truly about religious freedom. The exemptions apply only if the religious objection is to same-sex marriages; there is no exemption if you have a religious objection to any other sort of marriage such as a marriage involving a divorcee or a marriage involving people of different faiths for example. If the bill was really about religious freedom then the exemptions would not be limited to religious objections to same-sex marriage. The reality is that this particular bill is carefully crafted to single out same-sex relationships for different and lesser treatment.

My second point is something that I do not mention in my written submission. The bill is also treating religious groups themselves in a discriminatory manner by giving legal privileges to some religions that are not available to others. By limiting the religious exemptions to the case of same-sex relationships, the bill is in effect playing favourites among religious groups. The bill says to people that if your religion objects to same-sex marriage, you get a special exemption from the ordinary legal rules but if your religion objects to other types of marriages then tough luck—you do not get a special exemption. I cannot see the rationale underlying that. By playing favourites among religions like this, the legislation may also run into constitutional difficulties. Section 116 of the constitution in the first part states that the Commonwealth shall not make any law for establishing any religion. In the classic 1901 book on the Constitution, Quick and Garran wrote:

By the establishment of religion is meant the erection and recognition of a State Church or the concession of special favours, titles and advantages to one church which are denied to others.

And that definition has been quoted by the High Court. As I said, the bill gives special exemptions to some religions but not to others and in doing so the exemptions may in fact be unconstitutional. They are the two points I would like to make.

Prof. Foster : I have given a written submission to the committee and I want to briefly summarise what I have said. I would be happy to answer questions about it. The first term of reference of the inquiry concerns what it calls 'exemptions' in the draft exposure bill. In sympathy with what Archbishop Porteous has been saying, I do not think 'exemptions' is a very good word to describe what is happening in this area. I think the more correct description of these provisions is that they are balancing clauses. We have human rights that are of equal weight in this area. We have the human right to be free of discrimination and we have a human right of religious freedom. In legislation such as this, what we want is to balance those provisions in the particular circumstances. So I think it would be better to see these things as balancing clauses. And this is not just a matter of terminology; once you use the phrase 'exemptions', as Archbishop Porteous was saying, there is always a tendency over time to take that away, reduce that, shrink that down because it undercuts what is obviously the most important principle. I think it is more important to have a principle of balancing out two equally significant rights.

Religious freedom is a crucial right; we have already talked about it on a number of occasions today. I remind senators that Article 18 of the ICCPR refers to people having protection not just in religious meetings, or because of religious private beliefs, but in practice. So the ICCPR assumes that people can live out their religious freedom in practice. The High Court of Australia, in the Jehovah's Witness case back in 1943, said that the section is about the exercise of religion and protects things other than simply religious activities. In another case, in 1993, the High Court said freedom of religion is the essence of a free society. So it is a really important value.

I thoroughly support the provisions of this bill which deal with supporting religious freedom in the context of changing the law on marriage. In particular, I support section 47(3). I think it is necessary because it specifically provides that this freedom preserving religious freedom for ministers of religion overrides not just the Marriage Act but other legislation. It is really important that it do that; otherwise, other legislation may interfere with the rights that are given under the Marriage Act.

I also support the conscientious refusal clause for private celebrants. Private celebrants, as I have said previously, do not lose their rights of religious freedom when they start their business. These are important rights that people have. I agree that religious organisations ought to have a right of religious freedom as well. There is a lot of case law around the world these days that says that individuals and organisations that are religious organisations have religious freedom rights.

I also, though, think that the bill does not go far enough. In contrast to others, who want to cut down what the bill says, I think the bill could be better. The terms of reference of the committee say 'How do we make it better?' I think protection is needed for Public Service registry offices. I think rostering arrangements and other things can be made so that people will not be inconvenienced if a right is given to public service registry officers. I think small business owners who run wedding industry businesses should also have religious freedom rights that are recognised under this bill. In the United States and also in the United Kingdom and around the world a number of these sorts of cases have come up and religious freedom rights have been challenged.

I also suggest in the final part of my paper that the right to free speech is a really important right in this area and, just as Archbishop Porteous suggested, we need protection for people to speak about their views on marriage. I think this bill is the place to provide that protection because it is in the context of the Commonwealth changing the law on marriage that the Commonwealth can provide for protection of speech about the law on marriage. Indeed, the UK parliament specifically included free-speech protections in its marriage amendment legislation.

Prof. Parkinson : I want to make a very brief opening statement. Everyone realises that this is a vexed issue. This committee is divided, I am sure, on whether there should be same-sex marriage and it is a division not just between parties but within parties. My submission draws attention to the fact that all the parties have had these debates. I think it is in the best interests of the country, the best interests of gay and lesbian people and the best interests of all political parties to give the widest possible protection to freedom of conscience if same-sex marriage legislation is passed. It is not just about freedom of religion; we are talking about freedom of conscience. That is consistent with international human rights law. Article 18.1 of the ICCPR talks about an absolute protection for freedom of conscience.

I am not intending to be even remotely political, but it is worth pointing out that the Labor Party was opposed to same-sex marriage until about seven years ago. The last two Labor prime ministers, until the middle of 2013, were opposed to same-sex marriage. It is entirely appropriate for people to change their minds. It is entirely acceptable for parties to change their minds. Nobody doubts that, but the question is: how do we respond to the people who have not changed their minds? How do we respond to the people who are decent, ordinary, hardworking Australians—the backbone of our society—who have not been persuaded over the last five or six years by the arguments of those who want to change the definition of marriage? These are people who worry about what is happening. These are people within the Labor Party; they are people who vote for the Labor Party. They are people within the coalition parties; people who vote for the coalition. Every political party has to work out how it is going to respond to those—if we make a change—who genuinely and deeply believe that this is not a good change for society.

To illustrate, if I may, how important these issues are: I had the benefit of reading the Australian Human Rights Commission's submission. I have had a very constructive dialogue with Ed Santow, as I have had with Gillian Triggs and others. They kindly sent it to me. They want to remove any exemption and any right based upon individual freedom of conscience. It is the most extreme position I have seen, surprisingly, from the Human Rights Commission. Let me illustrate what effect this could have. If you accept the Human Rights Commission, to wind back that exemption to remove any right of freedom of conscience, within two years there will be a Uniting Church minister who will be dragged before the courts under state or federal anti-discrimination laws. The reason is this, and it is a very strong likelihood: I would think that the Uniting Church will take a view that it has no theological objection to same-sex marriage—again, it is entirely entitled to do that: every church can determine its own beliefs—but if you take away that freedom of conscience, as the Human Rights Commission argues you should, individual Uniting Church ministers will have no protection from state or federal anti-discrimination laws if they personally have an objection to celebrating a same-sex marriage.

I do not believe that anybody in this room or any political party really wants to see ministers of religion dragged through the courts because of their sincerely held beliefs. I do not think we want to see anybody dragged through the courts because of their sincerely held beliefs, beliefs which were almost universal in society until 15 years ago and beliefs which a Labor Prime Minister held until four years ago. It is not just ministers of religion; civil celebrants are also people who are entitled to freedom of conscience, and 538 civil celebrants are actually religious pastors of small, often evangelical, churches who are not part of denominations and therefore cannot come within the register of religious celebrants. How do we protect their freedom of conscience, their freedom of religion? You cannot just draw a distinction between the civil celebrants and the others without dealing with those 538 pastors and others and lay people who are leaders of churches but who are not covered by the section 47 exemption.

We do have an issue of balance here, as I say in my submission. I really do not think that any party wants to go to war with its supporters. People who heard the message that Nicola Roxon gave in the Great Hall of Parliament nearly 12 years ago that Labor was strongly opposed to same-sex marriage; and people who have heard the coalition say that it is strongly opposed to same-sex marriage—nobody wants to see them dragged through the courts and nobody wants to see them losing their jobs, as has happened overseas. So I argue for discrimination protections which, surely, nobody could be opposed to. After all, we have discrimination protections on a range of other grounds and we must have protection for people based upon their beliefs about marriage. Whether it is in favour of same-sex marriage or it is against, one can craft a neutral anti-discrimination law to protect people from the sorts of violations of their human rights that are seen in many parts of the world. Thank you.

CHAIR: Thank you very much. Dr Beck, coming back to section 116 of the Constitution, could you clarify for me, because I am not even a lawyer let alone a constitutional lawyer, but my understanding is that one of the interpretations by the courts has been that that section will be offended if the purpose of the law is solely or predominately for the outcome—in this case where it is a by-product of the intended outcome which was to legalise same-sex marriage. Would it still in your view offend the Constitution?

Dr Beck : Yes. There are two responses to that. The existing jurisprudence of the High Court is that the Commonwealth cannot make any law for establishing a religion—'for' means 'for the purpose of'. My first response to that is that I think that is an incorrect interpretation and, if the High Court were to reconsider that, they would change their interpretation. I have recently published an article in the Federal Law Review making that point.

The second response to that is that even if 'for' does mean 'for the purpose of', these provisions have the express purpose of targeting same-sex couples. They have the express purpose of closely targeting the religious exemption to those religions that have religious objections to same-sex marriage. These exemptions are not religious exemptions if you have a conscientious religious objection to various types of marriage. It is only if the religion has an objection to same-sex marriage, and that is not all religions; that is only some religions. The express text of these provisions is carefully calibrated to evince that intention. It may not be the parliament's subjective intention as legislated, but the objective intention of parliament as a whole as expressed through the text is that these exemptions apply only in the case of religions that hold objections to same-sex marriage and not to other religions. As Quick and Garran point out, that is a special favour or advantage to some religions that is not available to others.

CHAIR: If that specific identification of same-sex couples were removed—

Dr Beck : If you removed paragraph (a) from all of these exemptions—paragraph (b) says conscientious religious belief et cetera and paragraph (a) says 'but only in the case of same-sex marriages'—then the section 116 constitutional issue would disappear, because then it would just be a generic 'if you have a religious objection to any type of marriage then you get the protection'. As a matter of principle, if you have a religious objection to divorcees getting remarried, why is that, in substance, different to a religious objection to a same-sex couple getting married? So, if you were to delete paragraph (a) from these exemptions that limits it to same-sex couples, that would make the constitutional objection fall away.

Senator PATERSON: I have just a quick related question, in case we do not come back to that issue. Just for my benefit: I am not aware of very many religions that are supportive of same-sex marriage. My understanding is that most major religions are opposed to it. Do you have examples? From your presentation it sounded like it is a live issue and—

Dr Beck : As a legal proposition that is totally irrelevant; it is, on the objective test: is this valid or invalid; does parliament have power to enact this law? But as I think Professor Parkinson has suggested, the Uniting Church is broadly supportive of same-sex marriages.

Senator PATERSON: But as far as I know it is not yet. I understood from your earlier remarks that it would have to be seen to be benefiting a particular religion for it to fall afoul of the Constitution—

Dr Beck : Groups of religions—

Senator PATERSON: If the vast overwhelming majority of religions had one view it was clearly aimed at protecting all of them and there were one or two that had a different view—

Dr Beck : It would fall afoul.

Senator PATERSON: You think it would? Okay.

Dr Beck : Minority religions are just as entitled to protection as majority religions.

Senator PATERSON: Agreed. I am not suggesting that they should not be.

Dr Beck : The law would take that position. It is not about overwhelming majorities; it is about whether there is a religion that is getting a benefit or not getting a benefit. So, if you want to avoid the constitutional issue you would delete paragraph (a) and make it a generic religious objection to any type of marriage exemption; the constitutional issue falls away.

CHAIR: Professor Foster, you mentioned in the UK example that they put a free-speech provision in there. Was that in the form of an exemption around marriage? Or was it a specific free-speech protection? And has it been effective?

Prof. Foster : If you look at my submission, on page 8 I cite the particular provision that was introduced into the Public Order Act 1986, section 29JA(2). The Public Order Act has a provision dealing with sexual orientation vilification. When they enacted the same-sex marriage legislation they said:

… the avoidance of doubt, any discussion or criticism of marriage which concerns the sex of the parties to marriage should not be taken of itself to be threatening or intended to stir up hatred.

So, it comes as a clarification that the sexual orientation vilification laws do not apply to somebody who maintains and wants to maintain the view that marriage ought to be only between a man and a woman.

Now, this would be particularly relevant to the case such as that of Archbishop Porteous. Indeed, I think the Archbishop Porteous case illustrates the fact that this provision should be introduced into the Marriage Act if this change is made, because there will be a temptation on people to say, 'Well, now that we have changed the law you are vilifying the same-sex people when you maintain your traditional view on marriage.' Certainly one can argue that that is not the way the law should operate, but the UK parliament saw that it was important to put this provision in there. And the Archbishop Porteous case illustrates that some people or some tribunals might interpret the sexual orientation vilification laws in such as way as to create a problem.

CHAIR: Clearly, they put that provision in there because they were changing their marriage laws, but I note that even recently—as in late last year—there was a case where a, for want of a better word, street preacher was speaking in a public mall. He was approached by a young person who asked what the church's view was around homosexuality. He expressed that. They went and reported it to a policeman who subsequently arrested the individual and he was put in detention.

Subsequently, when the case was challenged, the policeman was found guilty of unlawful imprisonment et cetera. But it speaks to the fact that the antidiscrimination mindset is so strong that a policeman would feel obliged to actually arrest somebody on the spot—on the word of one individual—and imprison them which, in a free society, seems completely beyond belief. But it happened in the UK last year.

I am just wondering: was that free-speech provision too narrowly cast? And, if we put it in the Australian context where we have not only federal law but also state law that goes to issues of discrimination, would there need to be a very deliberate alignment, in terms of any protections around either freedom of speech or freedom of religion and conscience, to cover those different jurisdictions?

Prof. Foster : I am sorry, I am not across that case enough to know whether the particular offence that was charged was sexual orientation vilification. It may have simply been, for example, causing a disturbance in public or something like that. The particular offence may not have been directly applicable to the circumstances of that case, although the fact that the person was subsequently released demonstrates that no amount of legislation on the books can overcome overzealous or mistaken decisions made by people on the spot.

In terms of the interaction with state law, one of the reasons we need this provision in Commonwealth law is that the Commonwealth needs to state in its amendment of the marriage law what the law should be and can override state laws in this area, under section 109 of the Constitution. In my view, the Commonwealth legislative power would extend to incidentally supporting a change of law in this way if the Commonwealth decides to go that way.

I have heard a few people here today say, for example, 'Well, we can just rely on state laws as they stand.' State laws, of course, are infinitely malleable and change with a change of Premier or a change of government. If the Commonwealth has a policy in this area, in support of its policy on marriage, some of this legislation needs to be in the Commonwealth sphere.

CHAIR: Professor Parkinson, you mentioned the need for protections to get that balance for both sides of the debate. We raised earlier with the Human Rights Commission the fact that in general comment 18 by the United Nations Human Rights Committee they specifically look at the way articles 2 and 26 are to be implemented. Rather than the text of articles 2 and 26, which says no discrimination on the basis of any of these protected categories—which in this case includes sex, and that has been understood to be sexual orientation as well—the guidance from the committee says there shall be no law which solely discriminates on the basis of these things.

The case discussed earlier was the bakery in Northern Ireland, where the baker had a long-term constructive relationship with a gay person and had provided them product, so clearly there was no discrimination on the basis of their sexual identity. But when they came and said, 'We want a wedding cake,' the baker said, 'Sorry.' A step too far. This is because it then superimposed the construct of marriage on top of that protected identity of sexual identity.

In your view, is that a path the committee should be exploring, to see if there is a way we can use that guidance from the United Nations Human Rights Committee to find that balance you are talking about in your submission?

Prof. Parkinson : I certainly do. There is a great deal the UN Human Rights Committee has set on these issues, which the Australian Human Rights Commission does not seem to be aware of. The Siracusa Principles, which govern how you interpret the limitations on any right, under article 18.3, and the idea that differentiation is not discrimination—these ideas, I am afraid, do not find their place in the Human Rights Commission's submission to you. I think it is legally flawed.

In terms of the Ashers case, it is even more egregious. The cake, as I understand it, was meant to have the words, 'Support same-sex marriage.' It was not actually a wedding cake. It was a political statement. Surely, we are mature enough as a society not to force each other to express views we really do not believe. If we cannot solve this problem we are an immature society in which we believe the winner should take all. I think there is a lot of guidance in the Human Rights Committee's work and in the work of the UN convention on human rights which helps us balance rights, but I am not sure the Human Rights Commission has told you about it.

Senator PRATT: Professor Parkinson, in your submission you say that Labor's justification for same-sex marriage is:

… that it is a human right. This also justifies Labor's announced position that no-one can stand for elected office representing the Party if he or she does not support that view.

I want to ask you on what basis you make that statement and how you researched it, because the statement does not appear to be true.

Prof. Parkinson : If it is not true, it is not true, but it was widely understood that from 2019—the election after the one we have just had—it would be a mandatory position for Labor candidates to support same-sex marriage. If that is not true, perhaps you could explain it.

Senator PRATT: I can explain it. That is, all policy positions of the Labor Party are binding and marriage equality is not treated any differently, notwithstanding the fact that there is a conscience vote on the issue, according to our rules, within the current parliament. So it is a mischaracterisation. People can be of that view but they would be bound to vote for the proposition of marriage equality in the next parliament. I have always been in favour of marriage equality but was bound according to our platform to vote against it, because positions of the Labor Party are binding. It is not that I was unable to hold that view.

In relation to it being a human right, I was part of changing the party's rules in relation to marriage equality. The debate about it being a fundamental human right is indeed guided by international law, which is that there is no fundamental international human right in relation to marriage. Nevertheless, as we choose to express our own human rights as a political party, in terms of how we might choose to express them, that does not necessarily have reference to international law. Rather, it is a statement of equality. Does that clarify it somewhat?

Prof. Parkinson : I am most grateful to you. Of course you are going to be far, far more expert on Labor policy than I could ever be, but it does not address the fundamental point I was trying to make, which is that each party has its own divisions. It has arguments with its own supporters on these issues, whichever way we go. It is in everybody's best interests to find a peaceful way forward, if we are going to have same-sex marriage. I think that MPs in marginal constituencies have a particularly strong appreciation of that.

Senator PRATT: Dr Beck, would you be in a position to review the submission of the Human Rights Commission?

Dr Beck : I briefly skim-read it. I am not in a position now to speak to any particular detail of it.

Senator PRATT: In terms of the proposition that they put forward in relation to the constitutional questions you raised with the current bill, would the amendments they have put forward—

Dr Beck : I could not answer that question because I cannot picture the proposed amendments in my head. But as a matter of principle, to avoid the constitutional issue that I was talking about, the exemption would have to apply generally. So it would have to be that, if you have a religious objection to particular types of marriage, you are exempt. It cannot just be 'but only if that objection is to same-sex marriage' because—

Senator PRATT: I guess this is the point. The nature of the exemption is across the Sex Discrimination Act, which includes divorce and most of the religious attributes—pregnancy, marriage history, gender history—but might not include age or other grounds, because they are in other acts. So I am interested to know—

Dr Beck : That issue does not particularly arise, because my understanding of the proposed legislation is that it says 'notwithstanding anything in this act or in any other act'. So these exemptions override all those other acts.

Senator PRATT: That is true. What the Human Rights Commission has said is to pull back those exemptions and to replace them with the kinds of exemptions that are used within the Sex Discrimination Act. If you could look at what they are suggesting, I would be interested.

Dr Beck : I can certainly take that on notice and get something to you in writing, if you like.

Senator PRATT: Thank you. That would be helpful.

Prof. Foster : Senator, I do not know whether it is appropriate, but if I could offer to comment briefly on Dr Beck's proposal.

Senator PRATT: Of course.

Prof. Foster : It seems to me that if we remove paragraph (a) from subsection 47(3) we are left with a provision that says ministers of religion can refuse to solemnise marriages on any religious ground. I cannot see what stops a minister of religion saying they have a religious objection to an interracial marriage at that point.

Senator PRATT: Clearly, in the current act—and this is where we get into a debate about which bits are in and which bits are out of the bill—a minister of religion has the capacity to refuse a marriage on any grounds. That is within the current act.

Prof. Foster : Senator, with respect, I disagree. Section 47 says that nothing in this part stops a minister of religion or forces a minister of religion to solemnise a marriage, but it seems to me that under the current legislation the Racial Discrimination Act applies to that decision. I know that it has never been tested in the courts but, logically, where the exemption is confined to the Marriage Act other acts may apply. So it seems to me that at the moment a minister of religion would not be able to lawfully make a decision on racially discriminatory grounds, whereas under Dr Beck's suggestion they would.

Senator PRATT: If it were within their religious doctrine to discriminate on the basis of race then they would.

Prof. Foster : Yes. Can I add that there are not many such religious groups at all.

Senator PRATT: I know.

Prof. Foster : But in theory that would be the result, to my view, of the deletion of paragraph (a) in the draft exposure bill at the moment, probably under (3), which is why I do not think it is a good idea.

Senator PRATT: Equally, though—and this is where it does get complicated—there is the Age Discrimination Act. You might look at whether any particular celebrant be they religious or not would be happy to marry a 70-year-old man to a 19-year-old woman and on what basis any objection to such a marriage in terms of whether a celebrant is prepared to undertake it might be made. You might bend your mind to that question also.

Senator SMITH: Professor Parkinson, I read your submission, which I think was made available yesterday. I am just trying to understand from your perspective whether the exposure draft is very good, average or poor in terms of meeting the issues around religious freedom.

Prof. Parkinson : I would say better than average. It is certainly much better than any other bill previously introduced.

Senator SMITH: They are the choices, Professor Parkinson, but I will take that: 'better than average'. Why is that?

Prof. Parkinson : I think it does go quite a long way, and I congratulate the government on that. The huge gap is what ought not to be controversial—that is, there should be protections for people and organisations based upon their beliefs about marriage, given how divided we are as a society on this issue. With a whole raft of protections along those lines, I think it could be a very good bill.

Senator SMITH: What I thought was absent from your submission was a more detailed proposition in terms of how we might give effect to that concern—so how we might go from better than average to excellent. What was absent in your submission—and I was conscious that you have had discussions with others about propositions on how best to deal with this issue in the broad—was a more detailed proposition about how to give effect to that, and that surprised me. It is easy for people, indeed scholars, to come and talk about the thematics. On this side of the table, we are responsible to give effect, as best we can, to that. So we are trying as best we can to give some precision around the thematic concerns that are brought to the committee. I just thought your submission was absent in terms of being able to do that. Are you able to provide that to us? In contrast, Professor Foster contribution around the United Kingdom experience just in the last few moments has been quite insightful.

Prof. Parkinson : I needed a Christmas holiday.

Senator SMITH: You wouldn't make a good politician.

Prof. Parkinson : I will be better for the rest of the year for having had a holiday. Let me respond directly. You obviously know and others may know that I worked closely with Tim Wilson when he was Human Rights Commissioner, before he went into parliament, on a very detailed set of proposals which would cover all of these things. I still think that they are the best around, but they would depend on a different structure for the reforms. They turn upon having one thing called marriage and then the differentiations Tim had proposed between civil marriage and religious marriage. So you have, essentially, a bifurcation underneath the general meaning of marriage. This is not unusual. England has done exactly that, and South Africa and other countries do it as well. So, I could not, within this submission, do all of that.

Senator SMITH: Yes, I accept that. Our remit is quite narrow—that is, using the government's exposure draft, how best to craft a set of amendments, if they are necessary at all, to accommodate the various concerns. And I think it is fair to say that the issue of religious freedom and conscientious objection has been a recurrent one, and it is quite a fundamental issue for the parliament to get its head across. So, I am not wanting to impose upon your Australia Day commitments, but perhaps if you are inclined to—and of course there is no obligation—you could put your mind to how, given the exposure draft, we would in the detail give expression to some of it and, more precisely, allay some of the concerns around the themes that have been put to us.

Prof. Parkinson : Certainly. I can do that.

Senator PRATT: Singling out same-sex couples specifically might also be helpful in that context.

Prof. Parkinson : I will say that in the work I did with Tim we worked very hard to keep it all neutral, to talk about discrimination based upon beliefs about marriage, whatever they may be. And we did try hard to, where we could, avoid the words 'man' and 'woman'. And one can do that. Senator Brandis did have a copy of that bill. It maybe did not inspire him as much as it might have done in his exposure draft.

CHAIR: Perhaps I could invite you, then, as well as responding to Senator Smith's request, which goes to our terms of reference—essentially one of our terms of reference says, what might increase the chances of something getting through the Senate, if you wish to say, why don't you throw all that in a dustbin and look at this instead—if you wish to give us a copy of that and then we would be happy to have a look at the work you and Mr Wilson have done.

Senator KITCHING: I have a quick question. Professor Parkinson, when you said the split within marriage—civil and religious—can I just clarify: do you mean like the French system? I am not familiar with it. Do you mean in France, where you had to have a civil ceremony, and then you can have a religious ceremony as well?

Prof. Parkinson : No, that is not what I meant, and I do know exactly what you are saying. The continental European system is that yes, you have a civil ceremony at the town hall or equivalent and then you have whatever ceremony you like afterwards. But that is not our tradition in the common law world. Keeping within that tradition, I am really talking about definitions. So, you simply say, civil marriage is this, the union of two people, but religions can define for themselves how they see marriage and therefore religious celebrants can adhere to the religion's own definition of marriage. It is not a radical proposal when you think about it, because it is building on what we already have.

Senator KITCHING: Perhaps the work that you did with Tim Wilson might answer this, so we might not have to go into it now, but we have received some submissions from celebrants. What would that system do with the civil celebrants? Under that system, would they then have to perform a same-sex marriage? What were you proposing?

Prof. Parkinson : I think the most respectful way of dealing with this—because we want to try to avoid conflict or controversy where we can—is simply for people to register that they are civil celebrants who are happy to celebrate any relationships, but there are some who may only wish to celebrate relationships between a man and a woman, so they have a more limited registration, if you like, as we do in other areas. That avoids so much controversy and problem, because you can go to a register and see whether somebody has any objection at all.

Senator PATERSON: Coming back to these 538 celebrants who are religious ministers but have the authority to grant marriages as a civil celebrant, why is it not an option for those people to get the recognition to provide marriages under the normal route for a religious minister?

Prof. Parkinson : Because the normal route for a minister relies upon the existence of denominations. There is a fairly large number of churches scattered through the community which are self-standing, independent, evangelical churches usually and then you have other faith communities that are the same. So because they are individual churches in a particular locality—they are not nominated by a denomination—a whole load of things turn in the Marriage Act upon having a denomination. So what they do then is become civil celebrants but under a religious category, which is specifically accepted by the Attorney-General's Department.

Senator PATERSON: So it would not be an option for them to be recognised as a denomination of any kind? If we were trying to preserve their rights in this way, would it not be an option for the government to make it easier for them to register and to be recognised as a denomination?

Prof. Parkinson : I think an easier way, if you wanted to do that, would be to have a definition which says that whatever exemptions are there for ministers of religion also apply to anybody who is pastoring any sort of faith community, anybody who is authorised by a faith community to celebrate marriages because they could have day jobs; they could be lawyers or teachers or whatever. I do not think that is difficult to draft. It is just that the structure of the Marriage Act as it is at the moment causes a lot of complexity.

Senator PATERSON: Right. So if for any reason the parliament did not see fit to grant an exemption for civil celebrants, are there other paths that would ensure that those civil celebrants of a religious nature could still have some kind of exemption or separation?

Prof. Parkinson : I am sure that could be done. The question is this: is it only ministers of religion who have freedom of conscience? It is a fundamental question. At least a civil society would grandfather provisions and say people who are already in the job, already have maybe for 20 years been doing this should be allowed to continue accepting freedom of conscience. There are ways of putting it on a register which you can do respectfully.

Senator PATERSON: I do understand that argument about grandfathering but, equally, your religious freedom or your right to freedom of conscience should not depend on when you took up your profession or indeed what your age is. If you are born today and have the same days as someone who is born 50 years ago and who is a religious celebrant, I do not think you should be treated any differently by the law.

Prof. Parkinson : I am hardly going to disagree with you but I do think, given there is so much opposition to any exemptions at the moment from some people, that we do have to find compromises. I have been a committed Christian since I was 17 years old and there were certain careers that were not open to me. One of them was prostitution. I think that is okay. People who, because of their faith, hold Sabbath traditions will not be able to do jobs that require them to work on Saturdays. We make these choices as people of faith.

Senator PATERSON: Coming now to exemptions—I know it is not a perfect word and sorry to keep using it—for people of faith in the business environment, where do you draw the line? How closely or distantly related to a wedding ceremony do you think the service needs to be for that person not to be required to provide it?

Prof. Parkinson : It is a terribly vexed issue. I do respect the views on either side. Tim and I could not actually agree on it finally. I think it has got to be immediately related to the wedding ceremony or the subsequent celebration—wedding and reception. I do think it is going to be a very small number of people. We should, if we are a sensible mature society, be able to say to people: 'Look, of course I would do this for you and by law I am required to but I really do not feel comfortable doing it and you probably do not feel comfortable that I do not feel comfortable.' We do not have to have the Ashers bakery sort of confrontations, where deliberately people start wars. I think that is the balance this needs to find. I would probably try to build in under the marriage power a conscientious objection defence based purely on marriage, not on sexual orientation discrimination, not winding back any rights or protections but simply creating a new one in a new context. I would draft it narrowly and I would probably have it just as a defence and I would hope that most people would deal with it without litigation.

Senator PATERSON: Could you give us a bit of an indication practically what that would include and what it would not include? I will give you an example from what we talked about this morning. We had representatives from Anglican and Catholic churches here and each of them gave one example that they thought should not be exempt. The Catholic bishop said that a taxi driver driving someone to a wedding clearly should not be exempt. That is not related closely enough to the wedding. And the Anglican archbishop said someone providing chairs for hire should not be exempt. So, in your vision of how this would have been achieved, where would that line be drawn?

Prof. Parkinson : It is a really hard one because no parliament can possibly work through, with general words, an exact dividing line. But I think that, if you go broader rather than narrower, it will be respectful of people who genuinely have beliefs about these things, and there will be very, very few examples of it. I just find it hard to imagine the chair-owner who has a problem! But I do think the wedding reception venue owner might. So I would say: let us not try to be too precise in law. Let us deal with the problem five years down the track, should same-sex marriage pass, if we discover it is causing great conflict in the community. I suspect it will not.

Prof. Foster : Senator, if you don't mind: on page 6 of my submission, I refer to a Victorian provision which allows for individual religious freedom and protection, and I suggest 47C, which is my own suggestion, using the words 'for purposes reasonably incidental to the solemnisation of a marriage'. That may not be tight enough, but it is similar to wording that is used in state legislation. Section 84 of the Victorian Equal Opportunity Act 2010 is already there providing some religious freedom protection for individuals, and I think, analogously, a provision could be put into the Marriage Act.

Dr Beck : On the question of wedding industry providers, venue operators et cetera, today there are—and for very many years in Australia there have been—forms of marriage to which people have profound religious objections. A divorcee getting remarried is profoundly wrong, for religious reasons, in the minds of many Australians. The venue holder, the baker and the florist are not exempt from providing services to those people, even though the ground of objection is a sincere and genuine religious objection. I personally do not see why the parliament would want to single out same-sex couples to be treated differently. If the ground of objection is religious objection then make that the ground of objection. It should not be targeted at same-sex couples. We have divorcees getting remarried, and people have profound religious objections to that. Australia has carried on perfectly well for quite some years without there being an exemption for people who have those religious objections. I mean, is there actually a need? Yes, we have the Ashers bakery case from Northern Ireland, but that is under the British equality laws, which are quite different from Australia's antidiscrimination laws, and that was not even a wedding cake. So that is not even a wedding industry issue at all. The example of divorcees getting remarried I think demonstrates that this is not actually that big an issue after all. People have profound religious objections to that, and the wedding venue operator is not exempt; the florist is not exempt; the baker is not exempt; the wedding dress maker is not exempt. But all of a sudden the possibility that some gay people might get married requires an exemption for religious reasons. If it is only about gay people then it is not about religion; it is about treating gay people differently.

Senator PATERSON: So, in your view, Dr Beck, there should be universal religious exemptions for any grounds, or there should be none?

Dr Beck : Well, I think it is one in all in, or one out all out. For ministers of religion, I think there should be an absolute exemption. If they have a religious objection to any element—so if they do not like tall people and short people getting married, if that is a religiously based objection—then absolutely: ministers of religion should have the broadest possible exemption. But—

Prof. Parkinson : Can I say I would agree with Dr Beck on this: that we should, as far as possible, draft these laws around freedom of conscience around beliefs about marriage, whatever they may be. The more we can avoid singling out same-sex partners, the better it will be. And I think we can do, with clever drafting. I refer to the Parkinson-Wilson bill on that issue!

Dr Beck : I would suggest that the evidence is probably that we do not—leaving aside ministers of religion, because I do not think that is controversial. But, in terms of civil celebrants, who are not ministers of religion, and wedding service providers—florists, bakers, venue operators—if they have got on so far with divorcees getting remarried and with people of different faiths getting married and so on, to which some people have very serious religious objections, why all of a sudden is this a big issue? I am not sure that factually there is a need. I mean, evidence may come to light that demonstrates there is a need; in the absence of this evidence, I would suggest no exemptions in those cases. If there is evidence, it should be a general: 'If you have a religious objection to any type of marriage, you are exempt.'

Senator PATERSON: So, if we were to have that general protection for all religious ministers on any grounds, in your view, what evidence, if any, should the minister be required to present to demonstrate that it is part of their religious doctrine or teaching, or should it just be enough for them to state that they have an objection?

Dr Beck : It would have to be actually part of their religion. People can lie about their religious beliefs. If you were to stand here and say you believe deeply in socialism, that could be proved by evidence to be untrue. In working out whether it is a conscientious religious belief of a minister of religion, you have to take into account that there is a variety of beliefs within denominations. The courts should never be called on to decide what the authoritative rule of Anglicanism on this question is. Is this a genuinely held religious belief? It is a subjective belief on the part of the minister.

Senator PATERSON: In this example of the Uniting Church changing its view on marriage, how would we ensure that any remaining ministers within the Uniting Church have their religious freedom preserved?

Dr Beck : You do not make it about the church or the faith group per se; you make it about the religious belief of the individual minister: do they hold that belief—which is an objective fact—and is that belief religious in nature? It is not: is that the majority belief within their denomination? The test would be: is it a genuinely held belief that is religious in nature?

Senator PRATT: You would all agree that currently there is an obligation under anti-discrimination law to allow same-sex marriage ceremonies, albeit not legally recognised, in secular venues because to refuse that would be a breach of current anti-discrimination law? You are simply seeking a service—

Dr Beck : A gay commitment ceremony?

Senator PRATT: That might not be how the participants in it describe it. There are plenty of people who say they are married in their own eyes, and in the eyes of their community, notwithstanding the fact that it is not legally recognised by government.

Dr Beck : As lawyers, I think we would say they are not married.

Senator PRATT: There is a legal obligation to allow them to access the venues.

Dr Beck : If they want to have their ceremony—it is not a legal marriage; it is just what you might want to call a commitment ceremony, which for all intents and purposes is the same as a marriage—then probably yes.

Prof. Foster : State law contains exemptions for religious organisations.

Senator PRATT: I am talking about secular venues. Clearly, there would be no obligation on religious venues to allow such an event. But I really think it is worth reflecting on the fact that there are many such marriages, albeit not legally recognised, already taking place in Australia and the anti-discrimination law, as it currently stands, applies to those events.

Prof. Parkinson : I think that is right. This highlights that we have got some work to do on anti-discrimination law both at the state level and federally in respecting freedom of conscience now that all these issues are emerging as they have done over the last 10 years. When anti-discrimination was just about gender, age, race and disability we just did not get many of these issues. But as anti-discrimination law keeps expanding in terms of protected attributes, we are hitting these issues more and more and there has not been a balancing—which I think there needs to be—between anti-discrimination provisions and other rights.

CHAIR: Professor Parkinson, I would like to finish up by coming back to your comment that perhaps the Human Rights Commission, in its submission and in other support to the parliament, has not identified all of the guidance that is possibly available for people like the United Nations Human Rights Commission. Could you provide for the committee other areas where you believe there is good guidance out of the Human Rights Committee that goes directly to these issues—or indeed the European Court of Human Rights or another body that is recognised as a centre of expertise in these things. If there is a list of specific guidance points, that would be very useful for us to have.

Prof. Parkinson : With confirmation from colleagues, I am sure I could do something of that kind.

CHAIR: Thank you very much. I thank each of you for your submissions and for being here today to give us evidence. We have a tight timeframe, so it would be great if you could get to us within a week those things that we have asked for. Thank you.