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Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill
24/01/2017
Marriage Amendment (Same-Sex Marriage) Bill

DEAGON, Dr Alex, Private capacity

WALSH, Dr Greg, Private capacity

ZIMMERMANN, Dr Augusto, Private capacity

[15:29]

Evidence from Dr Deagon was taken via teleconference—

CHAIR: Welcome, gentlemen. Thank you for appearing before the committee today. I invite each of you to make a brief opening statement.

Dr Walsh : Thank you very much for inviting me. I just want to make a few points mainly based on the article that was the basis of my submission to the committee. Firstly, I would like to focus on the central argument that most people are making against the idea that there should be strong protections for conscientious objection in same-sex marriage. The essence of the argument obviously is that this is a violation of the right to equality. It involves couples being denied a service on the basis of their sexuality, which amounts to discrimination. There were many statements that I put in the article which indicated that this view has considerable support. Also, looking at the submissions, this kind of argument was central to most of the submissions, which were of the view that there should not be substantial protection provided to conscientious objectors, at least in regard to individuals and private organisations.

I want to make two responses to this argument. Firstly, the argument I would like to make is one that focuses on the comparative harm—the harm that is suffered by those who are denied the service, the same-sex couple, and also the harm that is suffered by the service provider if they are forced legally to provide a service to a same-sex couple in violation of their understanding of what marriage is. It is undoubtedly the case that those who are denied a service on the basis of their sexuality relating to their marriage or their ceremony suffer significant harm, and I drew the committee's attention to a number of cases, including the case of Klein v Oregon Bureau of Labor and Industries, where a married couple were denied a wedding cake. They were clear that this caused them significant harm. One of the women who was part of the couple stated the:

… denial of service made her feel as if God made a mistake when he made her, that she wasn't supposed to be, and that she wasn't supposed to love, have a family, and go to heaven.

That is an indication of the profound emotional harm that she suffered from that denial. There are many other cases that can be referred to that indicate this, but, in my own view, I think that in the majority of cases the harm that these individuals—the gay couples—would suffer would be limited to the emotional harm they suffer, the harm to their dignity and also the inconvenience of arranging for the particular service to be provided by another service provider.

A conscientious objector will often suffer more serious harm. If they are forced to deliver the service in contradiction to their conscience then that will cause them to suffer grave emotional harm in many circumstances. There may be repercussions for them in their religious community. They may be criticised by members of their religious community. Possibly, depending upon their religious community, it could be more serious than that.

If they decide not to provide the service, contrary to a law that requires them to, then the kind of harm that they would suffer would be quite significant. They would suffer if the complaint goes to antidiscrimination tribunals or similar bodies, which it often does. Then they may be subject to a significant compensation payout—for example, in the case I mentioned, Klein, the bakers, had to pay $135,000 for not providing the cake, which, not surprisingly, led to them closing down their business. Anyone required to pay that kind of compensation amount will typically have to close their business, or, anyway, the payment of that amount would be significant. Some people will be required to lose their job.

Also, the fact that it goes to litigation will highlight the fact that these people have considered, in conscience, that they cannot provide that service, so that will lead to boycotts and protests. Again, this was something that happened in the Klein case. There were individuals who protested outside the bakery, and the bakery was subject to a boycott action.

It is also important, as has already been made clear, that it would be very rare for a same-sex couple to encounter someone with a conscientious objection. Polls routinely report that a majority of Australians are in favour of same-sex marriage. So it is unlikely on that basis that they will encounter a conscience objector. Also the profit motive may make it more likely that a person will be willing to provide a service. Also, as the polls indicate that an increasing percentage of people who are younger are in favour same-sex marriage, it is likely that, as time goes by, the number of people with a conscience objection will likely reduce.

Further, as was indicated by the Australian Human Rights Commission to the inquiry, there are measures the law could take to minimise even further the possibility of same-sex couples encountering someone with a conscientious objection. In the HRC's submission they suggested that a register would be one possibility for those with a conscience objection. My suggestion is that has merits to it, but it might be better to have a register for those who are willing to provide the service and who do not have a conscience objection.

So I think that is an important point to focus on. A lot of the submissions missed that point, focusing on comparative harm. The harm that would be suffered by those who were denied the service was the key focus, but they did not focus also, or did not focus sufficiently, on the harm that would be suffered by those who are required legally to provide the service.

The second response that I would like to make to that kind of position is that the right to equality does not just provide protection to those people who are denied the service. If you look at an instrument like the International Covenant on Civil and Political Rights, it clearly protects grounds such as religion, political or other opinion. So those people who are legally required to provide a service contrary to their conscience can argue they are being harmed on a ground which is protected under international human rights law, like the ICCPR. It is a well-known principle of discrimination law that if you have a neutral principle but it has a disproportionate impact effect on individuals on grounds that are protected by human rights, or by the right to equality, then they are suffering from discrimination. So it is important to recognise that these individuals who are required legally to provide the service have a right to equality. They can legitimately argue that, if the law does not adequately respect them, they will be suffering from discrimination. Because both sides can rely upon the right to equality, both sides can argue that they will suffer from discrimination if the law is not appropriately drafted. It is important to look at the comparative harm that each group will suffer under different models and to adopt the model which best respects the rights and welfare of all of them.

Finally—and this point has been made, as well—I emphasise that these people do not want to discriminate against people on the grounds of their sexuality, as is being said in many of the cases. They are more than happy to provide a whole range of services to people who are in gay relationships and who are open about their sexuality. These people do not want to act contrary to their conscience. In the same way that if they were in a country which allowed polyamorous marriage, they would not want to supply a service to individuals involved in a polyamorous marriage because they consider, again, that as being in violation of their particular beliefs about marriage. They are not trying to harm people with a particular sexually. They are just trying to remain true to their deeply held conscientious beliefs.

Dr Zimmermann : Thank you for the opportunity provided. It is undeniable that the Commonwealth has indeed the power to introduce legislation regulating the institution of marriage. I dare to say that there is still a constitutional question regarding the capacity of the Commonwealth parliament to change the meaning of marriage. The High Court has repeatedly affirmed the connotation, or the meaning, of a given word must remain as fixed as it was established at the time the law was originally enacted. Under the orthodox rules of Australian constitutional interpretation, the meaning to be given to a term is that which had at the date the Constitution was enacted. Jeremy Kirk, for instance, refers to this point in a well-known article published in the Federal Law Review:

Australian literalist orthodoxy falls within the realm of originalism ... [which] indicates that constitutional words are to be given their full, natural or literal meaning as understood in their textual and historical context ... Provisions are to be understood according to their essential meaning at the time they were enacted …

In an article reviewing the High Court's decisions, in 2013, law professors Nicholas Aroney, a constitutional professor at the University of Queensland, and Patrick Parkinson explain that one of the most fundamental principles of constitutional interpretation is that the words of the Constitution are to be understood by reference to their meaning when they were enacted. They go on to remind us of Justice Windeyer's statement in the Professional Engineers' case in 1959 regarding constitutional interpretation, which is that High Court justices:

… are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes.

Traditionally speaking, therefore, the courts have adopted a method that concentrates primarily on the essential meaning that the word has at the date when the law was enacted. This is precisely in line with what John Quick, one of the drafters of the Constitution, and Robert Garran, who played a significant role in the Australian Federation movement, explained in their standard commentary on the Australian Constitution. Quick and Garran commented that the intention of the Australian framers was to prevent the federal parliament from expanding its limited and specific powers by simply changing the meaning of any word in the Constitution. This is stated by Quick and Garran, the drafters of the Constitution. At the time of the constitutional enactment, the word 'marriage' meant a union of a man and a woman, 'and this would almost certainly have been regarded as the essential part of the connotation, and not merely the denotation, of the word.'

According to the court's most traditional method of interpretation, the meaning of a word must be limited to what such words actually meant at the time the law was enacted. If this were applied to section 51(xxi) then not even the federal parliament has the constitutional authority to redefine marriage but only a limited power to regulate on the institution, which does not encompass expanding its meaning to same-sex relations. Such interpretation effectively denies the federal parliament any power to redefine the meaning of marriage since this would go outside the scope of the term's original meaning. This is the opinion of Geoffrey Lindell in an article that he published in the Sydney Law Review:

At the time of federation the meaning of the term ‘marriage’ most commonly acknowledged was that contained in the cases which refused to recognise foreign polygamous marriage because such unions did not satisfy the traditional meaning of marriage now explicitly embodied in the Marriage Act … Not surprisingly this will make it difficult for the court to accept that same-sex marriages now come within the meaning of the term ‘marriage’ in section 51(xxi) of the Commonwealth constitution - a view that has already attracted some judicial support.

High Court judges, both past and present, have in obiter dicta expressed their personal opinions on the matter. Justice Gerard Brennan, for instance, relied on the history of the court to communicate that in his opinion it is:

… beyond the powers of the Commonwealth Parliament to legislate for any other form of marriage besides that encompassed by its traditional definition.

When considering the constitutionality of same-sex marriage it is very important to consider that the constitutional framers recognised that the specified powers set out in the Constitution should not be immutable forever. For this reason they provided a proper mechanism in section 128 of the Constitution, which ensures that any change to the powers of the Commonwealth Constitution must be subject to the will of the people and not the convenience of government from time to time. That being so, it is perfectly reasonable to argue that same-sex marriage should only be legalised via constitutional amendment, not via federal plebiscite or federal legislation but rather pursuant to section 128. Given the wide-ranging legal, social and economic consequences of changing the definition of marriage, it appears as though the most legally certain and indeed politically realistic approach would be to change or accommodate this new definition of marriage through an amendment to the Constitution pursuant to section 128—constitutional referendum.

So it is reasonable to argue that when it comes to how same-sex marriage can be legalised via parliamentary votes, perhaps the parliament has rushed its judgement because the Constitution appears to have been misinterpreted. Naturally the specific powers set out in the Commonwealth Constitution, including sections 51 to 81 and sections 15 to 20, do not have to remain immutable forever. However section 128 ensures that any change to the powers of the Commonwealth should be done by the will of the people and via a popular referendum.

Dr Deagon : Thank you, Chair and committee members, for the opportunity to contribute to this inquiry. I think that Dr Walsh's opening statement in particular summarised my own views and my own arguments very well. Obviously I have gone through those in quite a bit of detail in my written submission. I want to make a very brief opening statement emphasising the importance of religious freedom, not only for religious ministers and religious organisations but also for religious individuals and particularly religious individuals who are engaged in the running of a business.

Although there is debate about the extent of anti-discrimination exemptions for religious organisations and ministers of religion, it seems to be settled that such exemptions ought to exist in some form to preserve freedom of religion. This is reflected in the exposure draft of the marriage amendment bill and I largely agree with the content of that. What is less accepted is extending these exemptions to cover religious individuals and particularly religious individuals running businesses which offer goods and services. As the committee has heard, many of these sorts of cases have been proliferated in other jurisdictions where same-sex marriage has been legalised.

The main question that I wish the committee to consider is: if we grant exemptions to religious organisations and ministers of religion to preserve freedom of religion, as seems to be accepted, why not grant them to religious individuals? Religious individuals are not any less religious than the ministers or the organisations, and I think would not have their convictions any less offended if they were legally compelled to engage in words or conduct which were against their belief. As Dr Walsh noted, the main counter argument seems to centre around the harm suffered by the same-sex couple which is denied a commercial service in entering into a marriage or a commitment ceremony of some kind. And as Dr Walsh noted, it seems more plausible that in most cases the harm and the hardship suffered would be quite limited. It would be relatively straight forward in most cases for the couple to simply seek an alternate provider.

If I can illustrate briefly in a specific case in the United States in the case of Elane Photography, a same-sex couple asked a wedding photographer to photograph their commitment ceremony—this was at a time before same-sex marriage was legalised in the United States. The photographer refused to photograph the commitment ceremony on religious grounds and then was forced to pay $6,600 in legal fees, and of course we have heard of other cases where the financial outlay by a service provider in a similar position has been much more than that. The important thing to note in relation to this case is that the same-sex couple apparently found a different photographer through a friend, and there was no evidence presented of any loss incurred by the same-sex couple because of the denial of service on religious grounds. So here we have a religious individual running a small business refusing to provide a service on religious grounds, but they are severely penalised for refusing to violate their religious conscience because, in that situation, there was no protection for their religious freedom. And, as the committee has been told, the large fines incurred in those sorts of situations can be crippling for a small business. On the other hand, in this situation, the same-sex couple was able to simply find an alternative provider with, as far as we know, no substantive harm suffered. If this situation was reflected in Australia, I suspect that, if same-sex marriage is legalised, a similar result would occur in the current state of antidiscrimination law and exemptions. So that sort of situation is why I think there needs to be legislative protection for individuals, so that they can freely exercise their religion without suffering legal penalties.

As I emphasise in my written submission, I think there is no reason to doubt that Australia's constitutional protection for free exercise of religion in section 116 extends to religious individuals, and the fact that there is a constitutional preference for religious liberty—as explicitly expressed in the Constitution—over antidiscrimination provides a compelling case for including antidiscrimination exemptions for religious individuals.

CHAIR: Thank you very much, gentlemen. I will start some questioning and then go to my colleagues. Dr Zimmermann, can I start with you. You present an interesting case. It is the first time somebody has presented that case to us. But I am wondering: in the—I will call it recent—case of the Commonwealth versus the ACT, much has been made in several submissions of comments that have been attributed to the court saying that it was within the power of the Commonwealth to change the definition. I wonder if you could respond to those claims?

Dr Zimmermann : As you know, constitutional interpretation is very uncertain terrain, and there are many ways in which the Constitution can be interpreted. I believe that, traditionally speaking, the High Court of Australia has adopted a combination of the originalistic method with another method that was primarily coming from the celebrated Engineers Case, called literalism. It is very important to understand that sometimes the High Court might not necessarily adopt an approach that you would regard as being consistent with its own tradition of interpretation.

The ACT case was a case related to the unconstitutionality of a territory law that had absolutely nothing to do with federal law. So the decision does not create any kind of binding precedent when it comes to making an opinion regarding whether or not the federal law would be constitutionally invalid, because the case was not directly regarding the constitutionality of federal law at all. It was a decision that held that the ACT legislation was invalid as a result of what we call inconsistency, which is found in section 109 of the Constitution. Sir Isaac Isaacs made a point that I regard as very valid, which is that it is better to be finally right than to be consistently wrong, and, even if the High Court has committed a mistake, the High Court itself could reverse its own position. My commitment is to the Constitution and not to the opinion of individual judges.

CHAIR: You talk in your submission about the need for federal law to overcome the state antidiscrimination law being misused for vexatious purposes. Could you talk a little further about how you understand that could be manifested, particularly given that we have already struggled in the past to get alignment of discrimination laws around the nation. If the federal government wished to go down this path, how do you see that translating?

Dr Zimmermann : This is something that has been discussed and debated by my colleagues. I certainly believe it is very important to find the proper balance. Certainly it is the case that you have to take into proper consideration the fact that what we have in this country thanks to what the High Court has regarded as implied freedom is the freedom of political communication. I am not entirely sure about religious freedom necessarily protecting our citizens because I am pretty sure that we should retain the right of people to exercise their freedom of conscience. So I believe it is very important in these matters that these different rights are somehow properly balanced. I certainly believe that, being such a pressing issue and a very controversial one, perhaps the best way to go is by means of a constitutional referendum. That is because that is the way we would have the certainty and the guarantee that the Constitution is not being violated.

CHAIR: Dr Walsh and Dr Deagon, you have both talked about balancing harms in your submission, and you present a case about comparative harm that has been highlighted by others. Are there any frameworks that either of you are aware of in human rights practice that have been used successfully to consistently achieve good outcomes in terms of balancing harms?

Dr Deagon : Human rights and human rights frameworks is not my area of expertise, so I do not feel that I could make a qualified comment on that.

Dr Walsh : I know that, under some acts, there is a process that you follow when you want to limit a particular act. The Victorian Charter of Rights and Responsibilities is an example of that. They have a guide that should be adopted for how you should approach limiting a particular right, and there are many other instruments as well. But you wanted a more detailed framework about an equality clash?

CHAIR: I am purely looking for guidance. Professor Parkinson mentioned one in his summary. You have focused on this balance of harms. Obviously one group will see the harm done to them as being absolutely more important than the harm being done to another group. If the parliament or a judicial body of any kind is seeking to be a neutral arbiter in understanding what those harms are, sometimes it is useful to have a framework so that there is a way of assessing the harm without having the bias of the position that people are taking as they look at it. If you do not know of any, that is fine. Given that you have focused on this point, I am just asking whether you might know of one.

Dr Walsh : Only the general ones which are in human rights instruments. But I can take it on notice and get back to you if you want me to do some research in terms of whether there are widespread frameworks that could be used.

CHAIR: That would be great. Thanks. Senator Pratt.

Senator PRATT: I am interested in why you support a carve-out in relation to marriage when the issues you have raised relate to a whole range of conduct which people who have a religious faith might have an objection to participating in in some way—for example, adultery taking place in a hotel. Should someone who has a religious objection to sex outside of marriage have the right to decline to rent someone a hotel room? Perhaps a commercial childcare centre, because of the religious beliefs of the owner, might want to refuse children born out of wedlock from attending the centre. Or perhaps a 7-Eleven worker might not want to sell a condom to an unmarried couple. So I find it quite extraordinary that we want to set down a path within the Marriage Act to privilege some acts which might be contradictory to someone's faith over many other such acts. And I find it problematic, given the very act of doing that therefore stigmatises same-sex marriages relative to other marriages because they are singled out for this treatment when other forms of action are not. I wondered if you might or comment on that.

Dr Walsh : My response would be that religious liberty issues arise in every area of society. There is extraordinary diversity in relation to religion so these issues can arise in any issue that you can think of. It is necessary in each particular issue to focus on that issue to reflect on the particular rights and other considerations that are raised in that issue and then try to produce a result that, as far as possible, is just to all people who can be affected.

Senator PRATT: Could you give us some examples perhaps outside the marriage context?

Dr Walsh : Where religious liberty issues could arise?

Senator PRATT: Yes.

Dr Walsh : In regards to religious hospitals, to religious schools, to religious associations—

Senator PRATT: They have exemptions. There are some exemptions.

Dr Walsh : In relation to individuals, a person who wants to express their religious view in the streets and whether that should be allowed, whether what they say should be regarded as offensive treatment. For an individual who is working for a public organisation and a particular religious belief that they have makes it difficult for them to perform the work, should there be reasonable accommodation of their belief? What about a religious person who wants to object to receiving a vaccination, a religious person who wants to object to having a blood transfusion? The list goes on and on.

Senator PRATT: On that basis, it is problematic to me that within the context of marriage, you both seem to support the singling out of same-sex marriage as opposed to all the other attributes of marriage for the purpose of this freedom. Am I mischaracterising your view in saying that?

Dr Walsh : It is certainly not my view. The only issue that is relevant here is the issue of same-sex marriage and religious liberty. It arises in a range of different issues. In some different issues, there might be a situation where the religious person's position should be upheld but in other situations there might be an alternative rights a person can rely upon and therefore the religious person's or the religious organisation's view should not be upheld.

Senator PRATT: With regards to the way this act is drafted in that it carves out an exemption for same-sex marriage but not for other forms of marriage, I put to you that it does not deal with all cases of same-sex marriage as religious doctrine would perceive it and that is because of the way gender is defined. If you have got a doctrinal objection to a transgender person being married to someone of the opposite sex because they were originally born of the same sex, as this act stands, they would be legally protected from discrimination by anyone, by a secular venue that wanted to discriminate, even though this act might be intended to allow such discrimination to occur. Therefore what we have got before us in the law is in fact kind of nonsense because you cannot rely on a definition of gender when it comes to someone's doctrinal views because the definition of gender differs from the legal definition of gender in terms of how that definition would be defined by this act.

Dr Walsh : I am not sure if this response will meet your question in which case obviously you can follow it up. For the religious person's or the religious organisation's point of view, to show respect to their religious beliefs, you would defer to their understanding of gender and then they would determine for themselves whether there would be a religious violation for them to do a particular act.

Senator PRATT: Yes, exactly, and then therefore the carve outs in this bill would not provide that person of that view the capacity to discriminate in all cases.

Dr Walsh : As the bill currently is, as you know, there is no particular protection provided to the religious individual so there is no protection at all currently. But if that were to be introduced, then it would just be dependent upon how it was drafted—whether it was the third sub element in relation to the ministers, if they have the protection for their religion or for their conscience. If you had that kind of protection for a religious individual, then it would be substantial protection for their religious beliefs.

Senator PRATT: Which means you are not referring to a definition of gender in relation to—well, you are not relying on carving out same-sex marriage as the ground. Is that what you are saying?

Dr Walsh : I have heard a number of people who have said that. I have not thought about it in great detail, but the idea is attractive to me—that you do not just say you have the religious liberty only in relation to same-sex marriage. It is more general. That meets the concern that some people have that it is a homophobic provision, or it is just allowing a detriment to be imposed upon same-sex couples, which is not what the religious conscientious objector wants. And I do not think members of the gay community or members of the wider community want that kind of focus, either. I have not thought in detail on it, but it is attractive to me.

Dr Deagon : I might comment on that, as well. A lot of submissions and questioning that has taken place over the last couple of days has discussed the specific carving out of same-sex couples in the exposure draft. And that is just for ministers of religion, civil celebrants and religious organisations. I do not have any issue with that carving-out being removed from the exposure draft and just having a general exemption on religious grounds and for religious organisations, ministers of religion and civil celebrants. If a section is included protecting religious individuals, as well, I think that should also just be a general exemption, not one which specifically carves out or targets same-sex couples.

Senator PRATT: And, thus, you would avoid any need to define 'sex' as it relates to the objection?

Dr Deagon : Yes, that is right.

Senator KITCHING: I think all of you have alluded to case law—for example, the Ashers Bakery, the Klein's bakery in Oregon. Let us say there were no exemptions given, other than for ministers of religion. Would you then think that—and I am just trying to think whether you would put into there a positive declaration around religious freedom, but leaving that aside for the moment—a test akin to a balance of convenience would suffice? And whether you would attribute costs, which I think are in some of the state legislation for some of the tribunals, do you think that would do the same work as having exemptions for commercial services would provide? Obviously, we are going to have to balance these considerations and how this legislation appears. What I am really asking is: if you are taking Klein's bakery to court or a tribunal but you thought about whether you might do that if there was a balance of convenience test available to the court—in that case the bakery went out of business—do you think that suffices, and not putting in any exemptions?

Dr Deagon : I think that would not be a bad option. I do not think it is sufficient, though, constitutionally. As I explained in my written submission, the fact that there is a specific provision in the Constitution—section 116—dealing with protecting freedom of religion, or free exercise of religion, as Professor Reid Mortensen noted, that indicates a constitutionally required preference for religious liberty, not a mere balancing act between the right of the exercise of conscience and the right to equality.

Senator KITCHING: Sorry, Dr Deagon; could you just repeat the beginning part of that sentence?

Dr Deagon : Certainly. I was just saying that I think a balance of convenience would not be sufficient in terms of the guidance provided by the Constitution in terms of the section 116 protection of free exercise of religion. Professor Reid Mortensen has noted that the fact that there is this protection in the Constitution indicates a constitutionally required preference for religious liberty over antidiscrimination, and so I think that there really should be a religious exemption clause or something like that in the marriage amendment bill.

Dr Walsh : I have concerns about a test being used, for a range of reasons. Firstly, no matter how you draft the test, if you are going to give it to courts to decide what the test will be, then there are often going to be disputes about how it should be interpreted; there will be appeals, and further appeals are possible; and that costs enormous amounts of time and money for all the parties involved. The Wesley Mission case, which I have in the article, indicates the huge challenges involved in having a test; there were six cases on that issue. So that is a problem.

Also there is the problem of litigation where the process is the punishment, where some people litigate and do not actually so much mind what the result is; the fact that the litigation has occurred and that the respondent has been required to appear is itself a punishment, regardless of what the outcome is. So that is a concern I have about tests.

Also, a court case on a sensitive issue inevitably will be covered by the media, and so that increases the chance that there will be boycotts of the unpopular parties and protests against the unpopular parties. So that is a concern that I have.

And, just generally, the cost is an issue as well. There will be a cost to the respondent, the private person, but also there will be large costs to the government because—especially if it is going to be an antidiscrimination board that will investigate it—it will not be the complainant who will have to pay; it will be the government, through funding the investigation, funding all the courts and funding the appeals. So it will be a huge cost to the citizens as well. So, as far as possible, if you could draft a well-drafted exception—I prefer 'protection', as someone has said—that would be a much better approach than actually putting up some kind of test which would have to be decided by a court or a tribunal.

Senator KITCHING: And you think that that should be a positively framed statement?

Dr Walsh : Exactly, because, as was said by many people: exception, exemption—it just sends the wrong signal, as though these people are clearly engaging in discriminatory conduct, in conduct that clearly violates human rights, but, because they are politically powerful, they have been able to carve out this exception. A better approach to looking at it is that there are important human rights that we are trying to protect here, and that is why we draft the legislation in a nuanced way—to respect all of the people who will be adversely affected, and, importantly, send a message to the community that they are not exceptions; they are protecting important rights. So that is why.

Dr Zimmermann : It is not my main area, but I have written a couple of articles on the subject of religious vilification law, and I think some of you might know my position on this matter. The point is that sometimes these laws, even though they are very well intended, can actually backfire, and they backfire because they can be used for the purposes of establishing things such as, in the religious realm, what I call blasphemy law by stealth. So I think it is very important to bear in mind that we do not want to create any further law that will increase the level of bigotry in this country and be hijacked by bigots. So we have to be careful that people have the right to express an opinion with freedom and tranquillity, and that opinions have to be basically respected and people have to behave in a civilised fashion. My main concern with some laws is that the more you are an intolerant person, the more you are a bigot, the more you feel tempted to be using this kind of legislation as an instrument to silence the opposition. And free speech in a democracy should be considered sacrosanct. So we have to protect the rights of people to have their opinion, because this is an essential element of the democratic process.

CHAIR: If there are no further questions then, gentlemen, can I thank you for your submissions and for appearing before the committee today and Dr Deagon for joining us via phone. If you have been asked to provide any further information then, given the time line we have for reporting, could I ask that you get that to us within a week, which would be very helpful. With that, the committee will suspend until we resume tomorrow morning in Canberra.

Committee adjourned at 16:15