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Transcript of interview with Kieran Gilbert: Sky News: 10 October 2016: plebiscite for same-sex marriage; Marriage Act; Solicitor-General

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10 October 2016

Topics: Plebiscite for Same-Sex Marriage, Marriage Act, Solicitor-General


KIERAN GILBERT: Attorney, thanks very much for your time. Cabinet has signed off on the legislation for the plebiscite to go to Parliament.

ATTORNEY-GENERAL: Well what we’ve done, is the plebiscite legislation was introduced to the Parliament in the last sitting fortnight, but what we’ve done now is published an exposure draft with what we have in mind as amendments to the Marriage Act, and also the Sex Discrimination Act, were the plebiscite to be held and carried. Now I emphasise this is an exposure draft. We are open to hearing ideas from anyone really, from the Labor Party, from within the Government, from stakeholder groups but we have to have a point at which this discussion begins. So we’ve published this exposure draft yesterday.

KIERAN GILBERT: So if the plebiscite was to be held and you got the yes majority vote, this is the way that it would be implemented?

ATTORNEY-GENERAL: Along these lines, yes.

KIERAN GILBERT: Now one of the exemptions relates to religious bodies, does that also extend to knowledge with religious faith in the business world? For example those that provide cakes or other things for a wedding?

ATTORNEY-GENERAL: No, no it doesn’t. Let me explain why. We believe that there ought to be a protection of religious freedom and religious belief held by ministers of religion. We believe there ought to be a protection of churches not to be obliged to provide even commercial services, like function centres for example, for a purpose that is offensive to their faith. We believe there ought to be a line of conscientious objection as well for civil celebrants. But beyond that, the only connection between these persons and the solmisation of a same-sex marriage is that they are merely a commercial service provider. We don’t believe the exemption should go that far. In fact, were the exemption to apply to ordinary commercial transactions not involving religious bodies then that would be a significant winding back of the existing protections of the Sex Discrimination Act so that’s obviously…

KIERAN GILBERT: So celebrants can refuse and churches can refuse but businesses can’t? Just to give me a bit of detail, and obviously it’s hypothetical in the sense that it doesn’t

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look like it’s going to get through the Parliament anyway, what about a church-owned organisation that provides marital services like for example, reception halls…

ATTORNEY-GENERAL: Well that would be within the exemption because we have exempted religious bodies and churches not merely from an obligation to conduct such a wedding because it would be against their teaching, but also from providing commercial services for purposes incidental to such a wedding. For example, let’s say a church ran a reception centre, then the church wouldn’t be obliged to hire that reception centre for the purpose of a wedding reception for a marriage that would be offensive to its religious teachings.

KIERAN GILBERT: It gets a little bit complex though doesn’t it? Where do you draw the line? Because you know if you’ve got a church having a fete and people have made cakes and a gay couple want to buy a cake for their wedding, they can refuse them that cake.

ATTORNEY-GENERAL: People will always be able to bring up borderline cases, I mean, that’s what courts are for, to determine acts of Parliament. All we can do, in acts of Parliament is to explain the general rule and the general rule we have created is an absolute exemption for ministers of religion and an absolute exemption on conscientious grounds for civil celebrants and an absolute exemption for churches and religious bodies in relation to the provision of facilities, or the sale of goods or services for matters reasonably incidental to a same-sex marriage ceremony. Now what is reasonably incidental for a same-sex marriage ceremony, is something, were it ever to be controversial, for a court to determine.

KIERAN GILBERT: But Labor has effectively confirmed, as expected, via Tanya Plibersek this morning, and this is the worst kept secret in Australian politics, that they’re not going to support this.

ATTORNEY-GENERAL: Well Kieran, today is the moment of the truth for the Labor Party. Do they really believe in marriage equality or are they just playing a political game, because if the Labor Party were to support this plebiscite, we would have marriage equality in Australia in four months from today. I know there’s been a lot of posturing, I know there’s been a lot of tactical positioning by Mr Shorten, and Ms Plibersek, and Senator Wong. They all claim to support marriage equality, but when are they going to do anything about it? Take Senator Wong for example, she voted against marriage equality in 2004, she sat in a government as a senior cabinet minister for six years but did absolutely nothing about marriage equality and now today, it looks as if she will be once again be acting to block marriage equality.

KIERAN GILBERT: But we’re being told by marriage equality advocates, not to support it, they don’t want a plebiscite, that it’s too divisive.

ATTORNEY-GENERAL: There are some that take that view. There are others that take a different view. But the point I would make to you and those marriage equality advocates is that even if the plebiscite is not your preferred method, it’s important not to let the means defeat the end. What marriage equality advocates want is marriage equality. We took to the last election a method to get there. This, as I have said before, is now so close you can almost touch it.

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KIERAN GILBERT: The overwhelming majority of advocates don’t want the plebiscite. You said some do, some don’t, but the overwhelming majority hate it.

ATTORNEY-GENERAL: I’ve spoken to many from different points of view and it’s right to say that the gay community is divided on the issue, but leave that aside Kieran, leave that aside. What I want, I serve as the Attorney-General in the first Australian Government that has laid out a path to marriage equality. For six years the Labor Party, who are now so voluble about this issue, didn’t do a thing. They didn’t do a thing and now it looks as if today they’re going to try and block the only feasible path to having this outcome very soon.

KIERAN GILBERT: The Education Minister yesterday talking to David Speers, said the Government would be open to the idea of a debate around the funding, if Labor wanted to pull funding from either side of the debate, that you would look at that. Is that true? If so, why hasn’t it been discussed?

ATTORNEY-GENERAL: Well I tried to have that discussion with Mark Dreyfus. He came to see me in Brisbane, I think three weeks ago, and I said to him Mark, everything is on the table. Everything is on the table. We have put the proposal forward, you tell me what you want in order to secure your support for this proposal and I didn’t put any limits on it. I said to him, anything you propose, you say to me, I will take to the Cabinet. I asked him not once, not twice, but nine times in the course of a meeting that went…

KIERAN GILBERT: But you could have also put your proposal forward.

ATTORNEY-GENERAL: We put our proposal forward and Dreyfus said well we don’t support this proposal and I said to him, well what do you want? And he refused to tell me.

KIERAN GILBERT: Would you look at it now though, if he came back at the eleventh hour?

ATTORNEY-GENERAL: I’ve always said the Government has an open mind on this and is always open to hearing what the Labor Party says. We want this Plebiscite Bill through because it is what we promised the public at the election and we are keeping our promise and I, as a supporter of marriage equality, want the Plebiscite Bill through for an even more important reason, and that is, we will get this outcome towards which we’ve been working for the past…

KIERAN GILBERT: I need to ask you a couple of quick questions in relation to the Gleeson matter, Justin Gleeson. You’re going to be appearing before a Senate committee as I understand it on Friday, to give your side of the case.

ATTORNEY-GENERAL: I wasn’t initially even invited to appear…

KIERAN GILBERT: Your critics would say that the letters that are being released, Justice Gleeson released the agenda of the meeting, Mr Gleeson. You didn’t as the Attorney. Yours was redacted apparently…

ATTORNEY-GENERAL: No that’s not right. The letter to which you refer, was the letter of the 12th of November from Mr Gleeson to me, requesting a meeting, raised two topics. I produced the letter. I redacted everything that related to the other topic that he wanted to

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raise. I produced everything that related to the topic of this procedure for obtaining a sitting brief to obtaining advice from the Solicitor-General.

KIERAN GILBERT: And so there is nothing that was redacted, which would be relevant to whether or not this was discussed in your meeting? Because that’s what’s being asserted.

ATTORNEY-GENERAL: Correct and if that’s what’s being asserted, it’s being incorrectly asserted because everything that bore directly upon that topic, there were two topics at the meeting, everything that bore directly on that topic was produced in the copy of the letter that I produced. Now, I also as you know, produced two sets of notes taken by two of my staff during the meeting that showed, beyond argument that the issue of the Legal Services Direction was raised and that the broader issue of how the Solicitor-General should receive briefs from Government was discussed.

KIERAN GILBERT: My final question is in relation to, one of your colleagues, Ian Macdonald yesterday, accusing Justin Gleeson of playing politics with this. What’s he asserting in that relation?

ATTORNEY-GENERAL: Well you’d have to ask Senator Macdonald that.

KIERAN GILBERT: Do you agree with him?

ATTORNEY-GENERAL: I’m not going to associate myself with that remark. I have always, as I’ve said before, had a courteous and professional and respectful relationship with Mr Gleeson. I regard Mr Gleeson as a very good lawyer and I don’t walk away from that.

KIERAN GILBERT: You just disagree on the meaning of consultation is?

ATTORNEY-GENERAL: That’s what this is. I was asked four questions about this in the Senate yesterday and it is very obvious to anyone with an ounce of common sense, that this is coming down to a semantic argument about the meaning of the word ‘consult’.

KIERAN GILBERT: Thanks Attorney, thanks for your time. I appreciate it.