The much-anticipated Report of the Senate Inquiry into the Commonwealth Government’s Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill was released last Wednesday. To the surprise of many, the Committee, comprising Coalition, Labor, Greens and NXT Senators, agreed on unprecedented commitments to religious freedom, many of which apply outside of the context of same-sex marriage and reach beyond current protections. This is an outcome that has been largely overlooked in the media but will certainly inform future parliamentary debate.
Indeed, a close reading of the report is difficult to reconcile with widely-reported claims that it represents a consensus for change to the definition of marriage. To the contrary, the Inquiry was not addressing the question of whether same-sex marriage should be introduced into law. It was established only to consider the implications for religious freedom if same-sex marriage were to be so introduced.
For that purpose, the Committee had to consider whether the right to equality extends to marriage. Significantly all members agreed that ‘under current human rights instruments and jurisprudence, there have been no decisions that oblige Australia to legislate for same-sex marriage. That said, there has been no suggestion that there are any legal impediments to doing so.’
The Committee observed that in Joslin v New Zealand, the sole case in which the United Nations Human Rights Committee had considered the issue of same-sex marriage, it had ‘determined under Article 23(2) that the right to marry under the International Covenant on Civil and Political Rights is confined to a right of opposite-sex couples to marry due to the interpretation that the terms “men and women” restricted marriage, by definition, to opposite-sex couples. Given this definitional construct, the refusal to provide for same-sex marriage does not breach the right to equality and non-discrimination.’
In regard to equality principles, the Committee noted that I had submitted:
The classical and modern conception that justice requires that ‘like cases be treated alike’ can be observed in the conclusion of both the United Nations Human Rights Committee and the European Court of Human Rights that the right to equality does not extend to a human right to same-sex marriage… To admit of such is not to divert at all from the political principle which Professor Ronald Dworkin calls sovereign – ‘No government is legitimate unless [it shows] equal concern for the fate of every person over whom it claims dominion’.
The idea that people should not be treated detrimentally in relation to a comparable attribute is not contentious, and is a good to be honoured within our community. Such a principle underpins the jurisprudence of the European Court of Human Rights which has required that States afford equality to same-sex couples in respect of recognition and entitlement to benefit. The important questions in this context are ‘what are like matters?’ and ‘what are irrelevant matters?’ in respect of the particular treatment in question.
As stated by Senator Eric Abetz in his ‘additional comments’, this reasoning reflects the prior view of Labor Party Senators in their 2010 report on same-sex marriage:
It is our view that the issue is one of definition, not discrimination. The federal parliament removed all inequalities in law and provided appropriate protections regarding property issues for all relationships in 2008 when more than eighty pieces of legislation were amended, with bi-partisan support.
Importantly, the Committee quoted Professor Patrick Parkinson’s comment that the conclusion of the UNHRC has important implications for religious freedom:
Since the right to marry a person of the same gender is not required by the ICCPR, and the principle of non-discrimination in Article 26 can be satisfied by providing equal rights other than the right to marry, the right to maintain religious beliefs and practices in relation to religious understandings of marriage is not limited by any right of a person to marry.
The Committee did not reach agreement on whether the religious freedoms of business owners and employees should be recognised in same-sex marriage legislation. On this subject, the Committee referenced the Institute for Civil Society’s submission that:
The individual or the organisation has a conviction that a certain attitude or course of conduct is required or prohibited by the religion or the principle of conscience which must be followed as a matter of duty … To fail to fulfil the duty (or do all that can be done to fulfil it) causes major internal conflict and perhaps a sense of failure and shame. Persons with a strong religious or conscientious duty will act contrary to their self-interest, economic and physical security and pleasure to fulfil the duty.
In that context, the Committee noted Professor Nicholas Aroney and Dr Joel Harrison’s concerns that:
Religious freedom has often been treated as a second-class right, while antidiscrimination laws have been given priority…Great care needs to be taken to ensure that a focus on the first-mentioned right (freedom from discrimination) does not diminish the others (e.g. freedom of religion, association and cultural expression and practice).
On this matter, and others on which agreement was not reached, Committee Chair David Fawcett stated that ‘the Committee did agree that the issues dividing opinion were complex, requiring careful consideration if religious freedoms were to be protected and rights balanced.’
In a significant recognition of religious freedom rights, and in light of Australia’s international human rights obligations, the Committee did agree that broader reform of Commonwealth anti-discrimination law ‘should be reconsidered to advance protections for religious freedom’ and to ‘enhance the current protections for religious freedom.’ The Committee considered that this could most appropriately be done by including religious belief as a protected attribute in Commonwealth law. Importantly, in the Committee’s view, reform was needed irrespective of whether same-sex marriage was legislated.
In particular, the Committee agreed that current Commonwealth law does not acquit Australia’s obligations under international human rights law to protect not only the religious freedom of religious organisations but also individuals. For the same reason, it agreed that the religious freedom of civil celebrants who are ministers of religion but who do not belong to major denominations should be recognised in any proposed law legislating same-sex marriage.
Turning to the consequential effects of same-sex marriage, the Committee raised the prospect of an anti-detriment clause as a means to protect the religiously convicted. This it said was in light of the ‘experience internationally and in Australia, where the same-sex marriage debate and/or the legalisation of same-sex marriage has led to adverse action against individuals who hold and manifest the religious or conscientious belief that marriage is between a man and a woman.’
The Committee also noted that I had cited ‘authority from the United States, New Zealand, Canada and England and Wales [to argue] for amendments to the Charities Act 2013 (Commonwealth) to ensure religious charities with a traditional view of marriage retain their charitable status.’
The report provides a very helpful overview of the demands of equality and also the religious, free speech and associational freedoms that are enlivened in the marriage discussion. Significant agreement was reached on the necessary protections to religious freedom. Even in the areas in which agreement was not reached, the Report stands as a very comprehensive detailed statement of Australia’s international obligations and will serve as a valuable reference point for future parliamentary consideration.
Mark Fowler is Chair of CLEAR International Australia Ltd, a charity that unites State-based Christian lawyers societies around Australia. He was a member of the Queensland Law Society Human Rights Working Group and is a PhD candidate at the University of Queensland. His comments are his own.
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