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Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill
23/01/2017
Marriage Amendment (Same-Sex Marriage) Bill

VAN GEND, Dr David, President, Australian Marriage Forum

[14:48]

CHAIR: Dr van Gend, thank you for appearing before the committee today. I invite you to make a brief opening statement, should you wish to do so.

Dr van Gend : Former Prime Minister John Howard said in 2011: 'Changing the definition of marriage which has lasted for time immemorial is not an exercise in human rights and equality; it is an exercise in de-authorising the Judaeo-Christian influence in our society. And any who pretend otherwise are deluding themselves.' There is something delusional, to use Mr Howard's word, about this bill because it pretends that there can be peaceful coexistence between state enforced homosexual orthodoxy and traditional religious teaching. But there cannot. A law for homosexual marriage will intimidate religious leaders with the relentless threat of anti-discrimination lawsuits. Religious individuals who speak out against LGBT dogma will be dealt with by the human rights police. Children of religious homes will be indoctrinated at school against their parents' wishes into the new normality of everything homosexual, bisexual, transsexual. Religious doctrine on marriage and sexual right and wrong will become something to be whispered in private and any who pretend otherwise are deluding themselves.

There is also something trivial about this bill. It devalues the foundational liberty of thought, conscience and religion by trading it off against a mere political fashion—a nonexistent right to homosexual marriage. This bill limits its concern for religious liberty to the freedom of ministers and celebrants not to conduct a gay wedding, but that is only a small part of the impact of same-sex marriage laws on religious freedom. This bill says nothing about the liberty to teach religious doctrine without harassment by the state, the liberty of parents to guide their child's moral education without indoctrination by the state, the liberty to conduct our private businesses without the state compelling us to bow the knee to something we consider wrong. These aspects of religious freedom are not even considered by this inadequate exposure draft.

Finally, there is something shameful about a bill that would knowingly impose harm on future children in the name of equality for adults. I demonstrate how this bill would violate human rights treaties by deliberately breaking a child's bond with their mother or their father; by imposing on future children a disrupted family structure that we know, based on the most rigorous social science, is contrary to a child's best interest. As Professor Sullins, Regnerus and Marks conclude:

The longer social scientists study the question, the more evidence of harm is found, and the fact that children with same-sex parents suffer significant harm ... compared to children with opposite-sex parents ... has been established beyond reasonable doubt.

So which senator or MP would be so indifferent to the best interests of the child, so captive to progressive or libertarian ideology, as to support a bill that knowingly imposes harm on future children?

To avoid this harm, an amendment to this bill would be required that severs the link between same-sex marriage and same-sex parenting. It would have to make explicit that nothing in this federal bill shall limit the power of the states to prohibit same-sex married couples from adopting or creating a child by surrogacy or IVF. Only such an amendment will allow the states to continue to defend a child's best interests to have, where possible, both a mother and a father. So we ask the committee to reject this bill, not only on the grounds of its gross inadequacy in protecting religious freedom or its negligence regarding the rights of the child but also because it asks the parliament to do something that it has no authority to do. Marriage is defined by nature, not by the state. Men and women have vowed themselves to each other and raised their young long before there was any state, any law, any religion. It is an institution of nature that predates all government and which no government therefore has the authority to redefine. Thank you.

CHAIR: I will start with a few questions before I pass to my colleagues. We have had a number of witnesses today talk about the fact that they have not seen harm done to freedom of religion or belief in comparable nations where laws have been changed. New Zealand, Canada, the UK and the US are cited. Your submission outlines a number of concerns raised by minorities in the US Supreme Court and outlines some cases. Could you expand a little on the nature of those concerns raised by the judges and whether they have in fact played out in practice in the States and other jurisdictions?

Dr van Gend : Criticism by the four justices of the US Supreme Court who wrote their minority dissenting opinion against the five judges who passed the same-sex marriage laws in the US was to say that the ruling relied on a very narrow understanding of religious freedom, and that is our criticism of this bill as well. This bill means well, but it goes such a tiny way to capturing the truth of religious freedom as people live it out.

Justice John Roberts talked about how it is very gracious that the majority allows religious believers to advocate their views of marriage, but he points out that for the US Constitution religious freedom is about more than just ideas; it is about actions. It 'guarantees the freedom to exercise religion'. That, of course, is the same wording as the International Convention on Civil and Political Rights. It is not just the freedom to have certain ideas; it is the freedom to live out your life as individuals and in a community according to what you think is true and what you think is good. That is the heart of religious freedom, and that goes for even non-theistic religions. It can be pantheistic green mysticism; it can be many types of world views. But according to what you believe is true and good, the living out of that is true religious freedom.

The famous quote from Justice Alito, which I half-referenced earlier, is:

I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

This is the problem—that this bill fails to address those vast areas of lived religious freedom, where people form their communities, their institutions, their schools, their hospitals, their rituals according to what they believe to be true and right. And once homosexual marriage becomes the law of the land, the power of antidiscrimination law will automatically kick in to harass those expressions of what is true and good if they go against the new homosexual orthodoxy imposed by same-sex marriage, because the law says that homosexual marriage is natural, normal and right—tick—and therefore schools must teach that homosexual behaviour is natural, normal and right or else they are violating the law.

I give the example of Massachusetts—the parents, called the Wirthlins, who found that their child was being taught a book about homosexual marriage, King and King. And I give the legal case that they pursued to the courts in Massachusetts saying: 'This is going against what we as a Christian couple believe to be true and good. It is deliberately countering our deeply held religious faith.' And the courts said, 'Too bad.' The courts said, 'What you call indoctrination is just what we call influence towards tolerance and the state now has a duty to influence school children to accept the view of homosexual marriage, which is the law of the land.' That is just one example.

CHAIR: How does that line up with Australia's obligations under the ICCPR in terms of the right of parents to oversee the education and moral development of their children?

Dr van Gend : This is where lawyers, I would hope, would be explaining that during the course of this hearing, because it is profound. Article 26 of the Universal Declaration of Human Rights says that parents have the prior right to decide the type of education that will be given to their children. Now, parents in Victoria no longer have that, because the state government will impose upon their children indoctrination in homosexual, trans-sexual, bisexual orthodoxy—namely, Safe Schools. All children at state schools will be compelled to undertake that program. That is the state usurping the rights of parents to have the prior decisions about the moral education of their children. That is an outrage. This is the point: while there is no law for homosexual marriage, parents can push back. And we have successfully pushed back in Australia, certainly at a federal level, against the imposition of Safe Schools. To a great extent, parent power has prevailed. But that will all be over once homosexual marriage is the law of the land, because then, by legal logic, the Safe Schools view of things has to be imposed to be consistent with the new idea of marriage. It has grave consequences.

CHAIR: Also in your submission, looking at obligations to the best interests of the child, you talk about a study published by the Australian Institute of Family—sorry; I have forgotten the full title.

Dr van Gend : The Australian Institute of Family Studies.

CHAIR: Thank you. You talk there about some changing thoughts around what is the established science around what is good for the child. Can you talk to the committee in a little more detail about that? It is certainly at odds with what is commonly perceived.

Dr van Gend : The 2013 study by the Australian Institute for Family Studies was called 'Same-sex parented families in Australia'. It acknowledged this:

…numerous scholars now agree it is not possible to sustain a claim frequently made in the early literature that there are no differences between children raised in same-sex and heterosexual parented families…

That is an important admission, because it is a standard political slogan that there is no difference for children raised in same-sex households. That is spin. What we do know without any doubt in social science—it is as certain a fact as exists in social science—is that children on average do best in every parameter when raised by married biological parents in a low-conflict marriage. I am quoting Child Trends, which is a secular institute in America. That is beyond dispute.

What we know is that any family structure where the married biological parent bonds are broken—whether it is single parenting, divorced families, blended families or same-sex parented families—all those children suffer the same level of disadvantage as any of the others. It is the act of breaking the kinship bond with mother or father that leads statistically and powerfully to disadvantage for children. It is true in a way to say that there is no difference for children of same-sex parents compared to children of other biologically disrupted homes, like divorced and single parenting. That is actually close to true, but that is not what the PR spin intends to teach senators and the public. What the PR spin is trying to say is that there is no difference between children in a same-sex household versus children of married biological parents. That is utterly false, despite how often it is heard on the news.

The immediate question arises: what about if you just let the same-sex couple marry, then you would have married parents compared to married parents. Fascinatingly, the early research by Sullins in a 2015 paper, using a very large database in America found the exact opposite. He called it 'the unexpected harm' because what he found was that the emotional harm to children—the rise in anxiety or depression or ADHD or other conditions—is typically twice as high in children of same-sex couples versus children of opposite-sex couples and four times as high if you compare it with married biological couples. That is twice or four times the effect. When you actually let the same-sex couples marry, you paradoxically get a worsening of the emotional harm to children; and the longer the same-sex couples are legally married, the worse the detectable harm. That finding is only preliminary, because, although it is using our biggest database, the numbers are not big enough to be fully confident. It is a preliminary finding. However, the finding of double the emotional harm for children in same-sex households is immensely robust statistically. That stands. That is it in a nutshell.

CHAIR: Often in inquiries such as this we are presented with studies researched by this group, studies research by that group and it is difficult for us to try to say: is there an independent arbiter who can say whether one or the other is valid. In what you have presented to us, what independent assessment of the intellectual rigor behind the competing views can you offer to the committee?

Dr van Gend : Sadly, this field of science, being so politicised, is corrupted in various ways, as have other fields of science—as has climate science, as was cloning when I was involved in the cloning debate. Anything with a big political stake can be corrupted, but it is not that hard in the material I have given you to judge between studies which lack the gold standard of research and studies which have the gold standard of research. For lawmakers, the only studies which should ever be listened to are those which meet the gold standard. Otherwise, those little studies with biased selection, with non-representative samples, with no statistical power—the conclusions that they make may be useful for PR headlines, for media releases, but they are essentially gossip, scientifically.

Whereas if you can identify—and there are only about 10—studies that meet the criteria of large-scale, non-biased, representative samples and statistically valid findings, you are on solid ground. There are only 10 studies. If there is another, I would love to know about it, but, as of my compiling these notes, there were 10. Of those 10, six find various forms of harm or disadvantage to children; one finds a mixture of negative and positive attributes; two still remain to have their database checked, because there have been corruptions found; and one, the most recent, by Bos in April 2016, purported to show benefit for children of same-sex couples, but the only finding in the study—the only finding that was statistically significant—was that lesbian parents get angrier with their kids. I do not know whether that counts as a harm or a plus. I cannot see it as a plus.

So, really, there is only a small body of research—10 studies—that meet the gold standard of objective social science that can be extrapolated to inform public policy. All the other 50, 60, 70 little studies are of anecdotal value only, but they make great headlines for the ABC.

Senator PRATT: I wanted to ask you, Dr van Gend, if you are able to draw us to the exact article that you were referring to when you referred to the Australian Institute of Family Studies paper.

Dr van Gend : Page 21.

Senator PRATT: Which paper is it? You have referenced it in your submission.

Dr van Gend : Yes—small print. But whatever the reference is, it was a review on the AIFS website, Same-sex parented families in Australia. She references the six studies—six only, at that stage, in 2013—that meet the gold standard of research. They are all referenced in her paper.

Senator PRATT: Thank you. Do you have a position on access to reproductive technology and whether that should be available outside the institution of heterosexual marriage?

Dr van Gend : The basic principle is the best interests of the child. The basic principle that covers marriage, adoption, surrogacy, IVF is this: no law should be allowed that intentionally deprives a child of either their mother or their father, and that rules out same-sex adoption, single adoption. It rules out single surrogacy, single IVF, same-sex surrogacy, same-sex IVF—and, of course, same-sex marriage, because same-sex marriage carries with it the right to found a family. That is article 16 of the—

Senator PRATT: And does it rule out donating gametes to a married couple?

Dr van Gend : That is akin to adoption. If you are talking about one of the couples not being able to produce their own sperm or egg—yes. That is akin to adoption because the child has still at least got the experience of a mother and father in their life. But I would not allow the donation to a single person.

Senator PRATT: So does that mean that you object to the separation of the laws in our country that have now separated out access to reproductive technology from the Marriage Act?

Dr van Gend : It never was part of the Marriage Act because it is a state issue.

Senator PRATT: I understand that.

Dr van Gend : My point is that states will come and go as to whether they support same-sex adoption or same-sex surrogacy. Those are state laws. In Queensland, for example, the Labor Party brought in same-sex surrogacy; the LNP opposes it and says they will change it. At present you cannot have a child by surrogacy in WA or South Australia, and so it goes on.

There has been a trend towards permissiveness on this. But my point is: if you bring in a law federally for same-sex marriage, that abolishes all the state restrictions on same-sex parenting, same-sex adoption, same-sex surrogacy because, under article 16 of the Universal Declaration of Human Rights, marriage is a compound right to marry and found a family. Hence my suggestion, in the latter part of my submission, that for this bill not to be complicit in imposing harm on future children, in depriving them of a mum or dad, you would have to somehow contrive to put an amendment in this bill that breaks the nexus between same-sex marriage and same-sex parenting, that breaks the nexus between marriage and the right to found a family, so that states shall be permitted to continue to rule on adoption and surrogacy. That way you might get away with having same-sex marriage but not violating the birth right of future children.

CHAIR: I just had a text from Senator Smith. He has to leave to catch a flight. He would like to ask a couple of questions and then I will come back to you if that is okay.

Senator SMITH: My first question is: can there ever be a bill that gives effect to same-sex marriage that would be acceptable to yourself and the Australian Marriage Forum?

Dr van Gend : No because the very notion of same-sex marriage is both untrue to nature and timeless culture, and unjust to future children by its nature.

Senator SMITH: I am also familiar with the work of the Australian Institute of Family Studies. They have done some excellent work on the issue of grand parenting in our country. Can I just read back to you to make sure that I have written my notes correctly. Your quote from the report in regards to same-sex parenting was:

Although numerous scholars now agree it is not possible to sustain a claim frequently made in the earlier literature that there are no differences between children raised in same-sex and heterosexual parented families.

Is that the quote that you used?

Dr van Gend : That is right.

Senator SMITH: Let me share for the committee what it says immediately after that, because that quote is taken from the conclusion of that report. Immediately after that quote that you have used, it says:

… there is now strong evidence that same-sex parented families constitute supportive environments in which to raise children.

It then goes on to say:

Indeed, with regard to children raised from birth by lesbian couples clear benefits appear to exist with regard to: the quality of parenting children experience in comparison to their peers parented in heterosexual couple families; children's and young adults' greater tolerance of sexual and gender diversity; and gender flexibility displayed by children, particularly sons.

So you have selectively quoted from the conclusion of that report.

Dr van Gend : With respect, not at all. I do not mind whether the 'no difference' theory is blown apart by claiming benefit for same-sex couples or by claiming detriment to same-sex couples. The point is that no intelligent person can ever again say that there is no difference; that is the point. And may I point out that the studies she refers to belong in my basket of deplorable studies. They belong largely in the unrepresentative biased sample with no statistical validity except, by memory, I think she quotes one of the Wainwright studies, which did find a marginal increase in GPA or what they call school connectedness. That was the finding. I do not know what that means but Wainwright found that. I reject your suggestion that it is misrepresenting the situation; what it is doing is agreeing for future reference that you cannot claim there is no difference.

Senator SMITH: And if you would like to qualify your statement, you are free to provide us with some additional information by the end of the week. But that statement, that full paragraph, is found at the conclusion of that report.

Dr van Gend : Yes, and I agree with that. What it does achieve is it gets rid of the idea of no difference. When you analyse the subject matter that the report is looking at, some of it is not valid so thank you.

CHAIR: Does that complete your questions, Senator Smith?

Senator SMITH: It does.

Senator PRATT: Dr van Gend, I want to conclude my discussion with you. We were reflecting on the separation of access to reproductive technology from the institution of marriage. I think you expressed some objection to that. You have also noted that, in the main, that separation had already occurred.

Dr van Gend : In our legislation, marriage is under the federal act and parenting—adoption, surrogacy, IVF—is under the state act. My grave concern is that when you bring in a federal act for same-sex marriage, you automatically, through international law, grant same-sex parenting rights to all same-sex couples so you are overriding the existing state prohibitions, and to me that is a backward step because you are therefore imposing a nationwide permanent violation of a child's right to a mum and dad.

Senator PRATT: That would only be the case if that prohibition is expressed in respect of specifying marriage, as opposed to heterosexual couples, et cetera. In my experience, the state laws are quite diverse. I have participated in amending laws to the ends that you object to, which is to create access for single women and lesbians to reproductive technology. We have had that access now—for example, in my home state of Western Australia—since 2001. That connection with the Marriage Act is long gone.

Dr van Gend : Yes, but that prohibition that still exists in WA against same-sex surrogacy would be overturned automatically if you brought in a federal law for same-sex marriage.

Senator PRATT: No, it would not, because surrogacy in Western Australia is defined as requiring a de facto womb. So to be a commissioning parent, you need to be female. That is how the act is defined in Western Australia, so what you are saying is a nonsense.

Dr van Gend : Thank you. I will look into that. But certainly in other states where they might oppose same-sex adoption or same-sex surrogacy, essentially same-sex marriage at a federal level will overturn state prohibitions.

Senator KITCHING: Could I ask you: really, this committee is to look at the exemptions or the possibility of having exemptions. Just going back to the exposure draft, I know your response to Senator Smith was that there would be no legislation with which you would be happy. I do not know whether you are able to, but if you could put that aside and look at the exposure draft and the suggested sections that would be passed. I think I might have a spare copy here if you would like to look at it. Essentially, we are looking to give exemptions on religious grounds both obviously to ministers of religion and to celebrants—sorry, not civil celebrants, but celebrants; now we have had a very excellent presentation from the civil celebrants, I am much more across the different categories—and also for the commercial, so the provision of goods and services. Would those exemptions be sufficient, given that there would be same-sex marriage? Would you consider any other categories of exemptions that would be necessary?

Dr van Gend : Nothing would ever get our support for something that is inherently untrue, that is inherently unjust to children and that is unnecessary in Australia because same-sex couples already have the exact same benefits and status as any other couple. For that reason, no law for same-sex marriage would ever get our support.

Senator KITCHING: Well, they do not have—

Dr van Gend : But I take—sorry?

Senator KITCHING: I am just thinking that they do not really have the benefit, because one might say that a benefit is that currently, as it is, only a man and a woman can marry; they do not have that benefit. You have just said that they do have the same benefits.

Dr van Gend : Yes, they have the same social benefits, the same legal status and the same everything. I have never thought that marriage is a benefit; it is a life task. It is a life task to create the next generation. I do not see that as a benefit; I see it as a vocation. Of course, according to nature, it can only be a man-woman thing, because it has to be a male-female thing to create the next generation. That is why marriage is a male-female institution. I would not call that a benefit; I would call that a vocation.

Senator KITCHING: Sorry, I interrupted you. You were going to say?

Dr van Gend : Thank you. Yes, the way to make the bill less immediately oppressive of religious freedom would be to bring in amendments such as the one I mentioned, separating parenting from marriage so that we do not automatically inflict same-sex parenting on future children—the deprivation of their mother, the deprivation of their father and the consequences that flow. That is the first amendment, but if you want me to give the other amendments that would make the bill less corrupting and oppressive, you would have to go to my terms of reference 2, where I say there is no provision for religious freedom in preaching religious doctrine—think of Archbishop Porteous, think of Cardinal Canizares in Spain and think of the rabbi of Amsterdam, all of whom have been dragged before the thought police for teaching their own doctrine. The other two countries already have same-sex marriage.

You need to have a provision in this bill which essentially says—was it a no-detriment provision that an earlier speaker mentioned?—'There shall be no action taken in human rights commissions against anyone who defends the truth of marriage as man and woman or defends the right of a child to a mother and a father. That shall never be actionable under human rights law.' Go to the next one—there is no religious freedom in education—and I give the example of the Canadian university, Trinity Western, whose law students are being disallowed from registration, and the example in Ireland where the Catholic schools can no longer discipline activist homosexual teachers who oppose their teaching on marriage.

What we would have to do is say that there shall be no implication in law that the establishment of same-sex marriage requires the teaching of same-sex behaviour in schools with the force of law—which is of course Safe Schools. We would need a provision whereby parents know they can withdraw their kids, they know that they can resist the logic of same-sex marriage leading to same-sex sex education. If you could fit that in, that would be astonishing but that would be a reduction in another harm.

There are two final ones. There are the adoption services. You would have to say that there shall be no detriment, no action brought against church adoption services who only want to give a child to a man/woman marriage, because in their understanding of what is best for the child you need a mother and a father figure. As you know, all Catholic adoption agencies in Britain have been forced to close. Massachusetts has the Catholic charities and in Boston it has been forced to close. Why? Under same-sex marriage, they refused to adopt a child to a same-sex couple and, therefore, fell foul of the authorities. So there is another example of oppression that could be exempted, defended against, in your bill.

The final one I have is the provision for religious freedom of individuals who are not church ministers or celebrants, and I give the example of the various bakers, photographers, florists and wedding venue proprietors. That is a less obvious issue, really. If you are in business, you are meant to serve the customer, and I accept that. But if you could just put your imagination in the position of a devout Christian couple like the couple in Belfast at Ashers Bakery who were asked to write a gay marriage slogan on a wedding cake, so-called, and said: 'Please, we can't do that. We think marriage is a man/woman institution, that a child needs a mum and a dad. Don't ask us to write that. Would you mind going to the bakery down the street?' Of course, they were then taken before the thought police. I would say let there be provisions built into the Anti-Discrimination Act that you cannot prosecute some little family business because they do not want to take your money for a gay wedding; they do not want to take your money for photography or whatever else. There are lots of other businesses that will take your money.

That, I know, is a marginal one, but can I give my own example. In September, when I was about to launch a book on this great issue of marriage—

Senator KITCHING: I read it, yes.

Dr van Gend : A day before the launch when we had 250 people coming in Brisbane, the printer emailed my publisher at 20 minutes to midnight and said they were not going to print my book because of 'the subject matter and content'. I do not know if the Opus Group in Sydney was trying to sabotage my launch. I do not know, but my response was simply to say that that is troubling. When a printer acts as a censor for the gay lobby, when a printer refuses to print one side of a debate when the government only announced a plebiscite a week before that is troubling. But I said it is within their rights. They are a private business. They can boycott me. They can refuse to print my book on ideological grounds. I accept that. I do not like it, but I accept that. We got someone else to print it—no problem—but wouldn't it be nice if it cut both ways. That is called tolerance. That is called letting someone act according to their values. Wouldn't it be nice if a lesbian couple wanting this Christian bakery to bake them a cake would just go down the road and get someone else to bake it? The point is, they do not do that.

The objective of same-sex marriage is to obtain the legal clout to compel society to approve same-sex marriage, to compel society to conform to the broader LGBT agenda—or you break them. That is what is so coercive about this law. And that is why we cannot accept it.

Senator KITCHING: We are looking at the exemptions, but thank you for your contribution.

Dr van Gend : It is a big wish list, I am sorry. But, yes, if some lawyer is brilliant enough to bring those in, we would die a slower death.

ACTING CHAIR: Dr van Gend, thank you for your submission and for taking the trouble to come from Queensland to appear before the committee today. If there are supplementary things you would like to present to the committee—and I think you have been asked to take a couple of things on notice—if you could get those back to the secretariat within the week, please, that would be much appreciated. We thank you for your evidence.



GARDINER, Mr Jamie, Vice-President, Liberty Victoria

[15:26]

ACTING CHAIR: Welcome to the member of Liberty Victoria, and you look remarkably familiar. Thank you for appearing before the committee today. I invite you to make a brief opening statement, if you wish to do so.

Mr Gardiner : On this occasion I am appearing in my capacity as a vice-president of Liberty Victoria—there are more than one of us—also known formally as the Victorian Council for Civil Liberties Incorporated. Liberty Victoria is easier to put on a letterhead.

Speaking to Liberty's submission, I would summarise my opening remarks by saying there are good things in this bill and not good things. The good things are the ones that Liberty's submission sets out—the items about correcting the definition from 'one man one woman' to 'two people'; the flow-on things, 'two siblings', in another spot; several other related things—changing the definitions to achieve marriage equality. There are one or two minor technical things and they are referred to specifically around that, adding the option of 'partner' to the mandatory words: using 'spouse, wife, husband,' should be 'or partner'. It is a matter of small things like that.

The core of Liberty's submission is that a bill which is about instituting marriage equality, both domestically and by recognising as marriages overseas or, for that matter, in appropriate consulates and embassies in this country that I have described in section 88EA, at present, as certain unions 'must not be recognised as marriages'.

These things are good: changing the definition and the immediate flow-ons, recognising marriages done in other countries between 2001 and the present, a growing list of countries—something more like 20, I think it is, now, including, I was told the other day, more than one country involving a total population of more than one billion people, which is possibly a large enough number to begin to generate the sorts of statistics that might even convince Dr van Gend.

The elements of the bill that the Law Institute and the Law Council—and, obviously, other people who have appeared before you—are to be opposed and which Liberty urges and those other organisations urge to be removed are all contrary to the fundamental—the basic principle aim of this bill is equality and it is hedged around with a number of symbolic or effective statements of inequality. So opposing those is the basic thrust of the submission, plus a couple of suggestions.

One of your terms of reference refers to things that will make it more likely to pass through both houses of the parliament. Liberty argues that for an equality bill to pass through both houses of parliament it must appeal to the majority of members of parliament who are in favour of equality. The best way to do that is by being thoroughly in favour of equality. We draw attention to one possible improvement to the bill—in addition to the specific ones I have already mentioned—which is to enable people who have already made their mutual commitment to a shared life to convert that into a marriage if they wish, indeed, to have the word 'marriage' around their relationship. Not everyone does. This is done, for example, in New Zealand, the United Kingdom and some of the European countries. I do not have a list, but it is readily checkable on the internet, remarkably. So we should do that as well, and that would complete what I think is both necessary and sufficient to establish a real equality bill.

Although Liberty has not been involved in this, we notice with some satisfaction that a recent online opinion poll of LGBTI communities with about 6,300 responses showed that over 90 per cent of the respondents emphatically reject such innovations, as this bill has, as making civil celebrants able to refuse to marry non-one-man-one-woman couples on religious or conscientious grounds. Each of the amendments was looked at separately in this poll, and they all have high rates of rejection.

There are two other things about this poll that are interesting. One is that majorities, I think, on every question say that these additional discriminations to be set up under the guise of religious freedom would make the bill unacceptable to each person filling in the submission. The other thing they are able to advise is that the more strongly people supported marriage equality—say, for themselves—and the more strongly they thought it was important to have marriage equality, the more emphatically they said what I would summarise as, 'But we're not sitting at the back of the bus,' and that only a real equality bill will get the support of the people who it is intended to benefit.

That is my opening statement. I am delighted to take questions including, if you like, questions that I did not finish answering before.

CHAIR: I think that is called a supplementary question, which the Senate allows in the Senate. I am not sure that we are going to extend that here quite so graciously! I want to come firstly to that last point around not sitting at the back of the bus, which is an analogy that perhaps talks, not in a pejorative manner, to the sense that people have in the LGBTIQ community around where they are at. If the objective is to achieve a case where they can use the term 'marriage' as opposed to another form of relationship recognition and a bill were passed to achieve that, then, from a business perspective, looking at a win-win deal, they have actually achieved the substantive part of what they were seeking to achieve. If in doing that they take a winner-takes-all approach which says, 'People who disagree with our view must be disempowered from being able to hold their individual belief or conscientious objection'—which is the winner-takes-all approach—then you end up with quite large sections of our community who will be disenfranchised and discriminated against. You will just change the pendulum of who feels disempowered from a small group and their supporters to a larger group and their supporters. I am not convinced as to why that winner-takes-all argument is going to be good for the nation in terms of cohesion moving forward. I am just wondering whether you would like to answer that in the context of this balancing of harms that other witnesses have talked about.

Mr Gardiner : It is one of those things where those who oppose marriage equality litter the field with red herrings. The question of harms and the question of dignity actually do not lend themselves to a winner-takes-all view. That is a view which I am sure has been put to you by several people. But equality, as the Victorian Premier keeps pointing out, is not negotiable. You can have equality, or you can have inequality; there is no halfway house. So, an equal marriage law does not harm those who hold opinions against it, because there is absolutely nothing in the Marriage Act which is capable of harming the holding of opinions. Freedom of opinion, freedom of conscience, religion and belief—I know I have missed one out—the international law and the Victorian charter around those freedoms of expression acknowledge limits. One thing that is absolute is that in human rights law the holding of an opinion, a religious belief, is sacrosanct in that people who hold a belief cannot suffer detriment just because of the holding of a belief. Some regimes torture and kill people for holding beliefs, and that is of course contrary to all versions of human rights except their own. But what you do with your belief is different from whether you hold the belief.

With religion, a particular type of belief, there is a whole set of things around what religious people and religious bodies and religions do. As I mentioned earlier in the day, Acting Chief Justice Mason and Justice Brennan referred to the canons of conduct that constitute part of the definition of a religion—what people do, how they understand in practice what their religion means, not only rituals but conduct more generally. And that opinion of the then Acting Chief Justice, later Chief Justice, Sir Anthony Mason, and Justice Brennan requires that those canons of conduct not breach the ordinary law. In a society based on the rule of law and based on equality—the fair go, in the vernacular—the ordinary law now has a much stronger commitment to equality, freedom from discrimination. In spite of that, it has carved out, in the Sex Discrimination Act, in most of the state acts, and not much in Tasmania, licences for religious discrimination, which Liberty thinks are in fact unduly generous, and I certainly do, too, but they are carved out. But they are exceptions to a general principle of equality, which is a fundamental human right. Freedom of though, religion, belief, expression are also important human rights. There is no doubt about that. But what you do with your belief matters.

Now, marriage equality simply allows some people to have a fair go. It does not do anything to heterosexual people. It does not do anything to people who want to marry someone of the opposite sex, if indeed they live in the binary world where there is only one and its opposite, which of course is not the real world. But for most people who identify as men and for most people who identify as women, what matters is that coupling, and they can do that. There was one remarkable remark—bizarre remark!—by one of the advocates of inequality, one of the defenders of wanting to extend religious rule over more of life, that the biggest harm that he could conceive of was that he would now have to explain, if he referred to his partner, that she was a woman, or to his spouse that she was a woman. Well, we all sort of thought, 'Oh dear! What is that about?' The harms that are identified as supposedly flowing from marriage equality are entirely illusory; one might even say, 'delusional'. I heard some of them when I came in for what I thought was going to be an early session at 3 o'clock, but it turned out to be more or less on original schedule. The harms that are claimed are illusory. The people who want to impose their will on others do not like not getting their way, but they desire to constrain other people's lives on something which they actually say is fundamental, marriage, as indeed the High Court said in that Scientology case, who think the more important it is, the more important it is that it be non-discriminatory. I do not think that there is an argument that this is a winner-takes-all approach. It is simply that equality is not negotiable.

CHAIR: I think we litigated much of that this morning in terms of Joslin and the decision of the Human Rights Committee that there is not discrimination if there is equal recognition et cetera. So I am not going to go over that ground again.

Mr Gardiner : I would not mind, but there was actually inadequate opportunity to respond to that, and I would draw your attention to a submission which you have received from the Human Rights Law Centre. Its appendix A is a good brief summary of why—first of all, what the Joslin ruling actually said, which is that states can introduce marriage equality but don't have to. But even that can be significantly and has been significantly attacked in the human rights literature, as a decision which was probably an unreasonable decision at the time. A very narrow focus was taken. One would also say, and they say here, that the decision is, as one journal article says, inconsistent with a good-faith interpretation of the International Covenant on Civil and Political Rights and falls short of the comprehensive and established rules of treaty interpretation laid down in the Vienna conventions. I refer you to the Human Rights Law Centre's submission, appendix A, page 37.

CHAIR: I have read that, but I also take verbatim the comments by the Human Rights Committee—and particularly their reference to the preparatory words for the convention that make it very clear that they knew exactly what they were talking about with the definition, and that is why the European Court of Human Rights, in their decision as recently as last year, still upheld the view that you can have a different form of relationship recognition; discrimination or lack of discrimination does not mean that it has to be identical. So I think we can go around in circles on this. The only comment, before, that I wished to make was when you said that there was no harm—that it was illusory. I think that when you look at a business—and I think one that has been mentioned a few times today is the bakery in Ireland—or when you look at people here who have been forced from their positions and had to leave their employment because of expressing a view in support of traditional marriage, I think the inability that they would then have to pursue their occupation, pay bills, look after their mortgage and all those other things is a very real impact on those people. It is not illusory at all for those who have been impacted by that. I have no further questions. Senator Pratt.

Senator PRATT: Mr Gardiner, picking up in part from where we were this morning, I want to ask you about the Sex Discrimination Act and the extent to which placing specific exemptions with reference to that act in the Marriage Act is unnecessary because religious bodies and organisations already, under the Sex Discrimination Act, have an exemption that aligns with the provision of goods and services for the purpose of where there is an alignment with their religious—where it is part of the purpose of their religious practice. Could you please take us through that?

Mr Gardiner : I will get to the right spot. The amendment proposed in item 11 is to expand the scope of subsection 40(2A) of the Marriage Act by adding 'or as authorised by' to 'in direct compliance with'. That, as I am sure you have been told already, is a very substantial increase in the scope of an exemption within the Sex Discrimination Act. That is probably superfluous anyway because it adds to an existing religious exemption which allows religious bodies and which are carefully defined in the Sex Discrimination Act to discriminate in relation to their doctrines, tenets and the rather indefinable susceptibilities of their adherence. The existing subsection 40(2A) is probably unnecessary because it merely emphasises what section 47 effectively already does. In our view not only should subsection 40(2A) not be expanded by 'as authorised by'—'in direct compliance with' is relatively tight and very definitely only deals with things that are required by the legislation. It is hard to know what is actually covered, but 'as authorised by' is very vague and open.

In Liberty's view what item 11 should do is repeal subsection 40(2A) as being an unnecessary overextension of the religious exemption. One of the things that Liberty and for that matter the Law Institute submitted to inquiries at the time of the review of the consolidation of the discrimination laws—which was abandoned because it was running out of time and was replaced by the single amendment to the Sex Discrimination Act—was that a logical review of the religious exemptions was needed. It is our view that it should still be needed. I am not sure if I have gone quite directly to your question but I have done my best to give the general view. The question is really: the existing religious exemption in the Sex Discrimination Act, as in most of the state legislation, is unduly broad and should not be expanded—it should be removed.

One thing, though, to say there is that, where they are religious exemptions both on the Sex Discrimination Act point and the other ones, instead of singling out all of the different things that some religious bodies might want to discriminate on, they pick one only and that makes it all the more invidious because the one that they pick. It is not a matter of saying, 'Oh, well, people who have religious beliefs against divorce can refuse to hire divorced people who get remarried'. That is clearly unlawful under all the discrimination acts. Instead of that, it goes directly to contradicting the principal aim of the bill, and that is very poor practice.

Senator PRATT: You will recall the previous attempts to consolidate human rights law under the previous government and the discussions that were had around the manner in which the current anti-discrimination law really only protects religious freedom via exemptions within the Sex Discrimination Act specifically. There has been some resistance from church organisations to implementing religious identity as a ground in and of itself. There seemed to be a preference for that freedom to be exercised via exemption rather than allowing that right to sit alongside the other rights, where you might more intelligently be able to debate whether someone has the right to refuse to conduct a service because of their own conscientious or religious belief for someone who is seeking a same-sex marriage, for example. Our law provides for it only by way of exemption to the substantive right, which is, in and of itself, quite an offensive way of doing it and does not allow the rights to sit alongside each other. Could you perhaps comment on how we are extending that problematic fact even further and further into our law with this particular version of the bill.

Mr Gardiner : Yes. The Victorian Charter, which is a more general expression of human rights, does expressly recognise the right to freedom of religion, among other things.

Senator PRATT: Alongside other rights.

Mr Gardiner : Alongside other rights. The Equal Opportunity Act does not have religious belief as an attribute. There was an attempt to put religious belief in as an attribute in 1983 or 1984, but without looking it up I cannot remember exactly what happened to that. Shocking. It went in—sorry to be a bit muddled there. I do not have it with me at the moment and I cannot look it up quickly enough for you. But there seems to be no good reason not to have an attribute around religious belief. People should not be refused employment or service because they belong to this or that religious group, as a general rule, providing all the other things go correctly.

Senator PRATT: Notwithstanding that they currently can be, because they are not protected by—

Mr Gardiner : What I mean is: it seems to me that equal opportunity law would be perfectly proper to add the attribute of religious belief—sorry I am so vague on this. I was fairly sure—

Senator PRATT: It is quite a specific, complicated law, so—

Mr Gardiner : I will take this one on notice and get back to you about what has happened around it. But, as a positive attribute, people's belief should not be discriminated against. They should be allowed to work. It does not matter. Whether you are a Sikh or a Christian or a Muslim, you have a right to work, and our laws recognise that. I am fairly sure that those rights are covered under most antidiscrimination laws. Sorry to be a bit vague, but I will get back to you on this one.

Senator PRATT: Thank you.

Mr Gardiner : So, what is happening under the current push by a small minority of religions—I know you have already heard today from religious groups that have the same view as me and as Liberty on marriage equality. Religious groups often disagree with each other. Indeed, they usually disagree with most other religions. That is why they are separate. But on this one there is a very considerable level of agreement on marriage equality among religious groups and certainly among the adherents of the various religions that are most vehemently opposed. That variety of levels of discrimination seems to me to be a difficult thing—I have lost the thread there, so I will stop.

Senator KITCHING: This morning we sort of touched on previous commitment ceremonies that people have undertaken prior to the legislation potentially being passed. Would they apply? Would they have the right to apply? Is that how you would see that working?

Mr Gardiner : What I would see is that there would be a power given to marriage celebrants. Obviously, there is some complex drafting there. Essentially, if a couple who have been together for however many years it will be by the time this gets to be law, who have made a positive and public commitment—in most cases, this will, I imagine, be through a state registry, but I think we should allow for others—and who want to get married (as I said before, not everyone will want to get married, but many certainly do), when they go to a marriage celebrant to arrange that, they can say, 'Actually, we made a commitment in public, a mutual commitment to a shared life, back in 1991,' or whenever it was, 'and what we really want is for that marriage to be acknowledged now, as it should have been.' The state schemes are much more recent than that. In the state schemes, it is pretty easy, because they are there: they exist; there are formalities. They are already in the local registrar of births, deaths and marriages.

So they say, 'We want to be married,' and they go to a marriage celebrant, as everyone does when they want to get married—three-quarters go to civil celebrants and one-quarter go to religious celebrants—and, in a way, they will just be filling in a slightly different form. Obviously, the legislation would have to provide for that other avenue and for the dating and registration and so on. Not everyone will want to do it. But, if you want to get married and you have been together in that public way, in a marriage-like way—my words 'mutual commitment to a shared life' come from a High Court case in the late 1980s in which the court was wrestling with the question of when an unmarried couple should be treated as a married couple, and the 'mutual commitment to a shared life' was, I think, the crucial term that is really central to the idea.

So people's ceremony, occasion, taking of vows, or however they describe it, or signing of official documents on a statutory declaration, as we do in Victoria, are things that constitute what would have been a marriage if marriage had been available. They should be able to simply say, 'This is what we did; here is the evidence,' and the celebrant can sign off on it. That is the simplified version. No doubt the Public Service requirements would be more complicated; they always are. But I think the idea is actually quite a simple one.

I am pretty sure that New Zealand and the United Kingdom, for example, have a routine for that—certainly, to translate their registered relationships or civil unions, whatever they call them, across to marriage. I do not know what they do with the dates. Some of the European countries automatically put their civil unions, the pre-marriage versions, straight across to marriage and did not keep the civil union option, the non-marriage relationship option, open; and some kept them both open. In the Netherlands, for example, you can have a marriage, from 2001, or you can have the previous registered relationship instead. But, critically, people's real commitments should be recognised and they should be recognised as marriage if that is what they want. Does that make sense?

Senator KITCHING: Yes, it does. Thank you.

CHAIR: Mr Gardiner, thank you for appearing again and for all your evidence. If there are things that you have taken on notice—I think there are a couple—if you could have those to the committee before the end of the week, that would be appreciated. Thank you to the committee secretariat and to Broadcasting.

Committee adjourned at 15:59