House of Representatives

Marriage Amendment (Definition and Religious Freedoms) Bill 2017

Supplementary Explanatory Memorandum

(Circulated by authority of the )

Supplementary Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Marriage Amendment (Definition and Religious Freedoms) Bill 2017

1. The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. The objective of the Bill is to allow two people to marry in Australia, regardless of their sex or gender and to grant protections to freedom of expression, association, thought, conscience or religion.

Human rights implications

3. The following provides a statement of the compatibility of the Bill with the human rights to which regard is to be had under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Throughout this Statement, reference is made to 'same-sex marriage'. The term 'same-sex marriage' should be read to include a marriage of two people regardless of their sex or gender, sexual orientation, gender identity or intersex status where the union is not that of a man and a woman.

Rights to equality before the law and to non-discrimination

The Right to Equality in Respect of Marriage

4. The rights to equality and non-discrimination are contained in Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which provide that all persons are equal before the law and are entitled to the equal protection of the law without discrimination on any ground.

5. In Joslin et al. v. New Zealand [86] the United Nations Human Rights Committee, noting that Article 23(2) of the ICCPR states that '[t]he right of men and women of marriageable age to marry and to found a family shall be recognized', held that 'a mere refusal to provide for marriage between homosexual couples' does not violate the State Party's obligations under the ICCPR, including the rights to equality before the law and to non-discrimination. The Committee expressed its View as follows:

Given the existence of a specific provision in the Covenant on the right to marriage, any claim that this right has been violated must be considered in the light of this provision. Article 23, paragraph 2, of the Covenant is the only substantive provision in the Covenant which defines a right by using the term "men and women", rather than "every human being", "everyone" and "all persons". Use of the term "men and women", rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other.
8.3 In light of the scope of the right to marry under article 23, paragraph 2, of the Covenant, the Committee cannot find that by mere refusal to provide for marriage between homosexual couples, the State party has violated the rights of the authors under articles 16, 17, 23, paragraphs 1 and 2, or 26 of the Covenant.
9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, is of the view that the facts before it do not disclose a violation of any provision of the International Covenant on Civil and Political Rights. [87]

6. The UN Human Rights Committee's View is that whether discrimination exists over marriage is a matter of the meaning that is ascribed to marriage. If it is accepted that the concept of marriage includes a union between two persons who are of the same sex, then inequality or discrimination will arise where those persons are precluded from marrying. However if by definition marriage includes only a union between persons of the opposite sex, then by classification, inequality or discrimination cannot exist. The UN Committee interpreted the specific language of Article 23(2) to require that the ICCPR's definition of marriage falls within the latter category. The inability of same-sex couples to marry does not follow from a differential treatment of same-sex couples, or an exclusion or restriction, but from the inherent nature of the institution of marriage recognized by article 23, paragraph 2, itself. Given the scope of marriage under the ICCPR cannot contain same sex marriage by definition, the UN Human Rights Committee held in Joslin et al. v. New Zealand that no discrimination can arise under Articles 2 or 26 of the ICCPR and the right to equality was not breached. In essence, the Committee's View was that no inequality arises where a State retains the traditional definition of marriage because the definitional boundary of marriage did not enfold persons of the same sex.

7. That construction is supported by reputed academic comment. As noted by Harris and Joseph "It seems clear that the drafters did not envisage homosexual or lesbian marriages as falling within the terms of article 23 (2)." [88] Nowak also notes that "The prohibition of 'marriages' between partners of the same sex is easily upheld by the term 'to marry' ('se marrier') which traditionally refers only to persons of different gender. Moreover, article 23(2) places particular emphasis, as in comparable provisions in regional conventions, on the right of 'men and women' to marry". [89]

8. Furthermore, while under international human rights law the definition of marriage does not include couples of the same sex, and thus the question of discrimination cannot arise, in its General Comment 18, the United Nations Human Rights Committee has explained that conduct is not discriminatory if it is for a purpose that is legitimate under the ICCPR:

the Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. [90]

This statement is not qualified by necessity, nor does it require that the purported differentiation is the most appropriate means of achieving the purpose; rather, the test is to achieve a legitimate purpose and be determined by reasonable and objective criteria. The definition of marriage adopted under the ICCPR is objectively and reasonably justified, for a purpose legitimate under the Covenant. In differentiating between same-sex couples and heterosexual couples, the current provisions of the Marriage Act 1961 (prior to the passage of amendments effected by this Bill) rely on clear and historically objective criteria that have shaped the definition of marriage, and which reflect the social and cultural values that that institution has represented. As noted above, this purpose is explicitly recognised as legitimate by article 23, paragraph 2, of the Covenant.

9. These principles are also consistent with the Covenant's travaux pr é paratoires, which recognize that the right to non-discrimination does not require identical treatment. When discussing "All persons are equal before the law" in Article 7 of the Universal Declaration of Human Rights the travaux pr é paratoires provide:

The provision was intended to ensure equality, not identity, of treatment, and would not preclude reasonable differentiations between individuals or groups of individuals. [91]

10. The definition of marriage under Article 23(2) is also consistent with Article 16 of the Universal Declaration of Human Rights which provides, in the only gender-specific reference in the Declaration, the right of "[m]en and women ... to marry". It is also consistent with Article 16 of the Convention on the Elimination of all Forms of Discrimination Against Women, which provides:

States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
1. The same right to enter into marriage;

11. It is important to note under section 8(3) of the Human Rights (Parliamentary Scrutiny) Act 2011 a 'statement of compatibility must include an assessment of whether the Bill is compatible with human rights.' The human rights referred to, are defined as those contained in the seven international instruments referenced therein. Those instruments do not include the rights contained within the European Convention for the Protection of Human Rights and Fundamental Freedoms or the European Charter on Human Rights, to which Australia is not a signatory. The rights contained in (and the surrounding jurisprudence accompanying) those European instruments differ in content and limitation from those the Statement is required to review for compatibility. That this is the approach to be adopted is clarified by the Explanatory Memorandum accompanying the Human Rights (Parliamentary Scrutiny) Bill 2010, which provides that the human rights to which the Committee is to have regard are those 'rights and freedoms recognised or declared by the seven core United Nations human rights treaties as that treaty applies to Australia [sic].' The rights are those specifically 'recognised or declared' by the seven treaties, and which specific treaties apply to Australia. Such a reading is also to be preferred as the only possible construction in light of the varying nature of human rights under differing international systems. For this reason, the actual human rights to which regard is to be had are those rights (with their specific limitations and extensions) contained in the seven listed instruments, and not the similarly titled rights contained in other international instruments.

12. However, without detracting from the comments in the foregoing paragraph, it may be helpful to give some consideration to the European context. As acknowledged within the Parliamentary Joint Committee on Human Right's June 2015 Guide to Human Rights:

case law from other domestic systems, including cases brought under the European Convention on Human Rights (which is very similar to the ICCPR), can be a valuable resource in understanding how human rights are to be applied in practice. While none of this is binding on how the committee carries out its scrutiny function, it can assist the committee in gaining a broader understanding of the content and application of human rights.

13. The European Court of Human Rights (ECHR) has found that there is no right of same-sex couples to be included in the definition of marriage. In Schalk and Kopf v Austria the ECHR upheld the application of the doctrine of the "margin of appreciation" to Austria's refusal to marry a same-sex couple, finding that there was no right to same-sex marriage under the European human rights charters. In so doing, the Court held that in the European context, 'The area in question must therefore still be regarded as one of evolving rights with no established consensus, where States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes.' [92] The Court affirmed its prior judgements to the effect that although 'the Convention was a living instrument which had to be interpreted in the light of present-day conditions, it had only used that approach to develop its jurisprudence where it had perceived a convergence of standards among member States.' [93] In 2014 in Hämäläinen v. Finland, [94] the ECHR 'held that while it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples.' [95]

14. The ECHR has held that in order for a measure to engage the rights of equality and non-discrimination there must be a difference in the treatment of persons in relevantly similar situations. [96] In Schalk and Kopf v Austria the Court held that 'same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships. Consequently, they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship.' However, as noted in the preceding paragraph, in Schalk and Kopf v Austria that 'relevantly similar situation' did not extend from the need for legal protection to then encompass a right to marriage. The Court did not hold however that States Parties are required to afford same-sex couples access to marriage. Instead, in an acknowledgement of the differing views concerning the definition of marriage, in light of the 'deep rooted social and cultural connections which may differ largely from one society to another' it instead recognised the rights of States Parties to define marriage autonomously. Having found that the Convention does not impose an obligation to grant same-sex couples access to marriage, the Court found that the prohibition on discrimination under Article 14 was not breached. [97] The existence of legal protections afforded by registered partnerships and equality in access to benefits were relevant to this determination. All Australian States have given legal recognition to same-sex partnerships through civil unions or partnerships or have amended their laws to recognise same-sex partnerships as de facto relationships and have enacted legislation to remove discrimination against same-sex couples. In 2008 the Commonwealth enacted a range of laws to remove vestiges of discrimination in respect of Commonwealth government conferred rights and entitlements.

15. In Oliari v Italy [2015] the Court held that same-sex couples are 'in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship.' Again, the Court's ruling pertains only to 'the most appropriate way in which they could have their relationship legally recognised and which would guarantee them the relevant protection'. The Court held that the extent to which same-sex couples are in a relevantly similar situation to different-sex couples did not extend to their inclusion in the definition of marriage. The Court reaffirmed its decisions in Schalk and Kopf v Austria and Hämäläinen v Finland referred to above. These conclusions were affirmed again in Chapin and Charpentier v France. [98]

16. For the foregoing reasons the Bill does not engage (the right to equality and non-discrimination) under articles 2 and 26 of the International Covenant on Civil and Political Rights in respect of the provisions of the Bill that give effect to amendment of the definition of marriage.

The Right to Equality in Respect of Religious Belief

17. The Bill does however engage the rights to freedom from discrimination on religious grounds enshrined in Articles 2(1) and 26 of the ICCPR. The Bill provides various exemptions for religious and conscientious objectors. For the reasons elaborated below, any refusal to provide an exemption for religiously conscientious objectors would amount to discrimination on the basis of their religious or conscientious convictions. The ICCPR defines 'discrimination' as a distinction based on a personal attribute (which attributes include religious belief, and conscientious belief within any 'other status' under Article 26) which has either the purpose (called 'direct' discrimination), or the effect (called 'indirect' discrimination), of adversely affecting human rights. The UN Human Rights Committee has explained indirect discrimination is 'a rule or measure that is neutral on its face or without intent to discriminate', which exclusively or disproportionately affects people with a particular personal attribute.

18. A law that adversely impacts a religious group in a manner that is disproportionate to its impact on other groups would violate the right to equality. [99] The comments of Sachs J in Christian Education South Africa v Minister of Education are apposite:

To grant respect to sincerely held religious views of a community and make an exception from a general law to accommodate them, would not be unfair to anyone else who did not hold those views. ... [T]he essence of equality lies not in treating everyone in the same way, but in treating everyone with equal concern and respect. [100]

19. The comments of Heiner Bielefeldt, the United Nations Special Rapporteur on Freedom of Religion or Belief, are also noteworthy:

members of minorities should have the possibility to demand, to a certain degree, personal adjustments when general legal provisions collide with their conscientious convictions. Such measures of 'reasonable accommodation', which often have been criticized as allegedly privileging minorities, in fact should be seen as an attempt to rectify situations of indirect discrimination from which members of minorities typically suffer even in liberal democracies that are devoted to the principle of neutrality in questions of religion and belief. [101]

20. As the right to equality also protects religion, a failure to protect religious adherents with a conscientious objection would amount to a violation of the right to equality as it unjustly subjects religious adherents to a detriment that they only suffer because of their religious commitments. The objects to be inserted by Item 1 of Schedule 1 of the Bill acknowledge this, wherein they provide:

It is an object of this Act to create a legal framework that: ...
eliminates, as far as possible, discrimination against persons or entities on the ground of religious or conscientious belief; and
(e) ensures, as far as practicable, that everyone has the same rights to equality, regardless of religious or conscientious belief, as the rest of the community.

21. For the reasons now put, to not allow an exemption for religiously conscientious objectors would have the effect that the Bill disproportionately affects such people.

The right to freedom of thought, conscience and religion

22. Article 18(1) of the ICCPR provides:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

Article 18(3) provides that the:

freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

23. Article 4(2) of the ICCPR reflects the fundamental aspect of the right to religious freedom, listing it amongst a limited suite of the freedoms that may not be infringed upon, even in a time of 'public emergency which threatens the life of the nation'. The Human Rights Committee emphasised that this restriction 'underlines the great importance of non-derogable rights'. [102] The importance that the ICCPR attributes to the right to religious freedom is further illustrated by the other six non-derogable rights, which include the right to life, the right not to be tortured and the right not to be enslaved.

24. This has led the Human Rights Committee in General Comment No. 22 to describe the right to religious freedom as a 'fundamental' right:

Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18. The Committee observes that paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. [103]

25. The United Nations Human Rights Committee has described the wide-ranging scope of the rights protected under Article 18 in its General Comment No. 22, wherein it acknowledges that the rights protect both individual and corporate entities:

The right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) in article 18 (1) is far-reaching and profound; it encompasses freedom of thoughts on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others. [104]

26. Furthermore, the United Nations Economic and Social Council's Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, [105] provide that 'all limitation clauses shall be interpreted strictly and in favor of the rights at issue'. The Principles provide that:

Whenever a limitation is required in the terms of the Covenant to be "necessary," this term implies that the limitation:
b. is based on one of the grounds justifying limitations recognized by the relevant article of the Covenant,
c. responds to a pressing public or social need,
d. pursues a legitimate aim, and
e. is proportionate to that aim.

The Siracusa Principles also require that 'in applying a limitation, a state shall use no more restrictive means than are required'. [106] This means that where consideration is being given to the implementation of a fundamental right that conflicts with the right to religious and conscientious freedom, consideration of alternative means for progressing that fundamental right must be undertaken. A weighing of the relative burden placed upon religious and conscientious freedom amongst the alternatives is then required in order to identify the means that are the least restrictive.

27. Having observed these broad principles, it is recalled that the foregoing section establishes that under the ICCPR the UN Human Rights Committee has held that that no discrimination can arise under Articles 2 or 26 of the ICCPR in relation to same-sex marriage, on the basis that the ICCPR defines marriage to include persons of the opposite sex. (Furthermore, having found that there is no right of same-sex couples to be included in the definition of marriage the European Court of Human Rights has also found that the prohibition on discrimination under Article 14 was not breached.)

28. As there is no right to same-sex marriage, such cannot be said to be a fundamental right or freedom, and Article 18(3) cannot be enlivened to curtail the right to manifest freedom of religion or beliefs. In the absence of any conflict with other human rights, the ICCPR prohibits any restriction on an individual's right to freedom of religion, belief or conscience. 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 another person of the same gender. Accommodation for religious belief and practice does not constitute diminution of the right to equality or non-discrimination because such protections are based on criteria which are reasonable and objective, and which achieve a purpose which is legitimate under the Covenant. [107] Having outlined the broad applicable principles, this Statement turns to consider their application to the classes of persons offered protections under the Bill.

Ministers of Religion

29. The Bill preserves the rights of ministers of religion to exercise freedom of religion and conscience in respect of marriage (see section 47). The Bill does not impose limitations on those rights. Ministers of religion are defined under section 5(1) of the Marriage Act to include both ministers of religion under Subdivision A of Part IV and those registered under Subdivision C. The Bill also enables congregations to express their religious freedom and conscientious rights in respect of marriages.

Religious and Conscientious Freedoms of Celebrants

30. The right to religious freedom under Article 18 of the ICCPR is not limited to religious ministers, but applies to all. The inclusion of persons who hold a relevant marriage belief (regardless of whether they are ministers of religion) within traditional marriage celebrants under Subdivision D of Part IV to solemnise marriages is also consistent with international law (see section 47A). The inclusion of chaplains and officers authorised by the Chief of the Defence Force in the classes of persons who may hold a relevant marriage belief is also consistent with international law (see section 81). These provisions give recognition to the rights to freedom of thought, conscience or religion under Article 18 of the International Covenant on Civil and Political Rights. It gives effect to the United Nations Human Rights Committee's recognition in General Comment No. 22 on Article 18 that:

The right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) in article 18 (1) is far-reaching and profound; it encompasses freedom of thoughts on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others. [108]

31. The inclusion of persons who hold a conscientious relevant marriage belief is also consistent with international law. Article 18 protects individual conscience separate from religious conviction. General Comment No. 22 states:

The Committee draws the attention of States parties to the fact that the freedom of thought and the freedom of conscience are protected equally with the freedom of religion and belief. [109]

32. As noted above, as the definition of marriage under the ICCPR has been held not to encompass persons of the same sex, the Bill does not concern the right to equality and the right to freedom from discrimination. As outlined above, the UN Human Rights Committee has held that the ICCPR defines marriage as between a man and a woman, and that therefore discrimination cannot arise under Article 26, as persons of the same sex are not eligible for admission to the concept of marriage. (Similarly, the ECHR has not compulsorily required States to extend the recognition of same-sex partnerships to marriage, and such a requirement cannot be then relevant to the pursuit of the right to freedom from discrimination.) There is thus no contravening rights which would serve to limit the religious freedom rights of celebrants under Article 18(3). To burden such rights would be inconsistent with the human rights law this Statement is required to have regard to under the Human Rights (Parliamentary Scrutiny) Act 2011. For the reasons put above, there is thus no ground to limit the religious or conscientious rights of celebrants. The Bill gives appropriate protection to their rights, whilst amending the law to permit all couples to marry regardless of their sex, sexual orientation, gender identity or intersex status.

33. However, even if the right to equality were to encompass a right to marriage for persons regardless of these attributes, there are less restrictive ways of recognising the right to religious and conscientious freedom of celebrants who are not ministers of religion than the complete removal of these freedoms. It would be inconsistent with the Siracusa Principles and General Comment No. 22 to exhaust a celebrant's religious and conscientious freedom in favour of the right to freedom from discrimination.

34. To require that all celebrants that are not ministers of religion to solemnise same-sex marriages regardless of religious or conscientious conviction would entail a limitation on the rights to religious and conscientious freedom of those who hold an objection that is not necessary. To do so would amount to the application of means that are more restrictive than are required to amend the law to permit persons of the same sex to marry (applying the Siracusa Principles). A proportionate approach to the balancing of rights would require investigation of means to accommodate competing rights without unduly burdening the right to religious or conscientious freedom. The Bill achieves an appropriate balance by giving celebrants the ability to have their religious or conscientious objections protected in law, whilst permitting couples to seek a celebrant who will solemnise their marriage regardless of their sex, sexual orientation, gender identity or intersex status.

35. To the extent that an exemption for individuals who are religious ministers is proposed in recognition of the right to religious freedom, there could be no legitimate rationale for limiting the religious freedom of individuals who are marriage celebrants, as both are equally capable of autonomous agency, and both are protected under Article 18 of the ICCPR. Furthermore, to protect celebrants who are ministers of religion and who hold a relevant marriage belief, but not other celebrants who hold a relevant marriage belief but are not ministers of religion would amount to discrimination on the basis of their religious belief, in accordance with the principles outlined at paragraphs 17 to 20 above.

Protections to Religious and Conscientious Objectors

36. In addition, section 88K introduces a protection to persons who express a religious or conscientious relevant belief from unfavourable treatment initiated by a public authority. This protection also extends to unfavourable treatment imposed by a person or entity at the behest of a public authority. International experience has shown that the persons who hold a relevant belief have been subjected to detrimental actions. As further examples of detrimental actions:

a.
In Johns v Derby County Council 2011¸ the English High Court supported a local council decision that a Christians couple with traditional views on sexual ethics, who had successfully fostered many children, would not make suitable foster carers because they would not be open to promoting or accepting a homosexual lifestyle.
b.
In New Jersey the government declared that a Methodist organisation would no longer receive a real estate tax exemption when it declined to allow a same sex couple to have a commitment ceremony in a pavilion that was used for Church services, youth ministry programs and weddings. [110]
c.
In Tasmania, a booklet outlining the Catholic position on same-sex marriage distributed by a Catholic Archbishop was held by the Antidiscrimination Commissioner to be a possible violation of anti-vilification legislation. [111] The matter proceeded to a conciliation session but was eventually abandoned after many months by the complainant.
d.
In 2011 Adrian Smith from Manchester in England placed on his Facebook page a comment that he did not think that churches should be compelled to marry same-sex couples, although he did not object to same-sex marriage. This was before England allowed same-sex marriage. He was accused by his employer, a housing association, of "gross misconduct" and threatened with dismissal. Because of his long service, he was only demoted; but he lost 40% of his salary. [112]
e.
In Australia, calls were made for Dr Stephen Chavura to be dismissed by Macquarie University unless he resigned from another organisation that was perceived to be opposed to same-sex marriage.
f.
In Australia, Dr Pansy Lai had a petition, which gained 5000 signatures, circulated calling for her deregistration as a doctor due to her comments about same-sex marriage and safe schools in a No campaign TV commercial to deregister her as a doctor.
g.
In the United States of America, Chick Fil A was subject to commercial boycotting because of management's views and donations supporting tradition marriage. As part of this local governments and universities refused to allow new Chick Fil A franchises.
h.
In Australia, complaints are current underway against Presbyterian Minister Campbell Markham and street preacher David Gee for expressing their views on same-sex marriage.
i.
In the United Kingdom, the Vishnitz Jewish Girls School failed their school-assessment on one criteria, which was its inadequate promotion of homosexuality and gender reassignment, as it was deemed that these were necessary to have a full understanding of fundamental British values and equality principles.
j.
In British Columbia, Trinity Western University required their students and staff to sign a community covenant which included a promise to abstain from sexual activity, unless it was between a husband and wife. Due to this the British Columbia College of Teachers voted to refuse accreditation to all teaching graduates because they might discriminate against LGBTI students. After many years of litigation, the Supreme Court of Canada upheld the right of Trinity graduates to be accredited.
k.
In Canada, Four Provincial (State) Law societies decided to refuse accreditation to the planned law school and program of Trinity Western University on the grounds that the community covenant of the university was discriminatory, not on any grounds relating to the quality of the curriculum or faculty of the law school. The effect of the decision would be to deny graduates of the law school the right to practise law in those Provinces. Two of those Provinces reversed the decision and in the other two ligation about the decisions has been through the Provincial Courts and is now to be heard by the Supreme Court of Canada.
l.
In Northern Ireland, Ashers Bakery company, run by a Christian couple, was found liable for discrimination because it refused to bake a cake for a political group with the slogan "Support Gay Marriage". Ashers led evidence that it had never refused to supply a person on the grounds of their sexual orientation and did not do so in this case but refused only because it would not disseminate or be associated with the message on the cake. The court held that the sexual orientation of the person who ordered the cake was irrelevant and the refusal to provide a cake with that message on it amounted to discrimination.

37. The prospect of detrimental conduct aimed at persons because of their relevant belief poses a real threat to the lawful exercise of the religious and conscientious freedoms of those persons, as outlined at paragraphs 21 to 27 of this Statement. By the principles outlined at paragraphs 17 to 20 such conduct also amounts to discrimination on the basis of religious or conscientious belief, which State parties to the ICCPR have obligations to prevent. On these bases, section 88K then introduces protections to persons who hold a relevant belief.

38. Under section 5AB of the Bill a 'relevant belief' includes not only a relevant marriage belief, but also belief that 'a genuine religious or conscientious belief that ... a same-sex relationship is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person'. Under Article 26 of the ICCPR, states are required to prohibit any discrimination and guarantee to all people equal and effective protection against discrimination on any ground. Article 26 lists a number of grounds as examples as to when discrimination is prohibited, which examples include sex and 'any other status'. While sexual orientation is not specifically listed as a protected ground the treaty otherwise prohibits discrimination on 'any ground', and the UN Human Rights Committee has specifically recognised that the treaty includes an obligation to prevent discrimination on the basis of sexual orientation. [113]

39. To the extent that sexual orientation is then protected from discrimination, this right must be balanced with the right to religious and conscientious freedom. Pursuant to Article 18(3), limitations on these freedoms are only permitted to the extent that such are 'necessary', and as further outlined in the Siracusa Principles. To allow such detrimental conduct to be lawfully pursued against persons who hold a relevant belief would be an unnecessary limitation on their religious and conscientious freedoms. It would be inconsistent with the Siracusa Principles and General Comment No. 22 to exhaust religious and conscientious freedom in favour of the right to freedom from discrimination. A proportionate approach to the balancing of rights would require investigation of means to accommodate competing rights without unduly burdening the right to religious or conscientious freedom. The Bill achieves an appropriate balance by giving protections to those who express or act upon religious or conscientious objections, whilst preserving the rights of same sex couples to be free from discrimination on the basis of sexual orientation, gender identity or intersex status where those rights are protected under international law. The provisions of Part VAA give effect to the right of religious or conscientious belief, as protected under Article 18.

Bodies established for religious purposes and educational institutions

40. Article 18 extends to both individuals and corporations. Absent appropriately broad protections, the religious freedom of bodies established for religious purposes will be limited. The potential adverse impact on religious charities from a failure to adequately protect religious liberty has been demonstrated in other jurisdictions. In the United Kingdom, for example, the refusal to provide an exception to religious groups from the operation of anti-discrimination legislation caused religious adoption agencies to either reject their religious identity or to close down on the basis that they considered it would be unethical to assist same sex couples to adopt children. [114]

41. The Senate Select Committee recommended that the notion of bodies established for religious purposes be defined in any Bill that is progressed to redefine marriage. [115] The Bill amends section 37 of the Sex Discrimination Act 1984 to provide a definition of 'body established for religious purposes'. The definition is intended to cover not only religious bodies that are engaged in 'the spread or strengthening of spiritual teaching within a wide sense, the maintenance of the doctrines upon which it rests, the observances that promote and manifest it', [116] but also faith based charities that are pursuing a charitable purpose that is other than the technical advancement of religion. To illustrate, the definition is intended to cover faith based (without limitation):

a.
aged care providers or retirement villages;
b.
welfare providers or public benevolent institutions;
c.
hospitals;
d.
health promotion charities;
e.
human rights promotion charities;
f.
environmental groups;
g.
camp ground providers;
h.
organisations established to promote culture (such as faith-based radio stations);
i.
bodies advancing social or public welfare, which includes faith-based charities with a purpose of:
j.
relieving the poverty, distress or disadvantage of individuals or families,
k.
caring for and supporting:

i.
the aged; or
ii.
individuals with disabilities;

l.
bodies with the purpose of caring for, supporting and protecting children and young individuals (and, in particular, providing child care services); and
m.
bodies providing disaster relief.

42. The definition is consistent with The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief Proclaimed by General Assembly of the United Nations on 25 November 1981. Article 6 (b) of the Declaration provides: The right to freedom of thought, conscience, religion or belief [under Article 18 of the ICCPR] includes the freedom, "To establish and maintain appropriate charitable or humanitarian institutions". To remove the ability of such institutions to control the appointment of their staff and leaders is to remove their ability to maintain their faith-based character, and thus a direct impingement on their religious freedom rights. Section 88Q and the amendments to the Sex Discrimination Act 1984 give recognition to these rights.

Provisions addressing when belief may be held and acted upon

43. The Bill proposes that a new subsection 5AD(1) be inserted into the Marriage Act to provide that a person holds a genuine belief if the holding of the belief is not fictitious, capricious or an artifice. The Bill also introduces a new section 38A into the Sex Discrimination Act 1984 that applies the same test to bodies established for religious purposes and religious educational institutions. This test adopts the wording employed by Lord Nicholls in R (on the application of Williamson) v Secretary of State for Education and Employment. [117] In addition, as the Canadian Supreme Court has recognized, an individual's right to religious freedom does not necessitate an inquiry into whether their "beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for courts to make". [118] The ruling in Christian Youth Camps Ltd v Cobaw Community Health Services Ltd [119] to the extent that the Court had regard to, what was considered by the Court to be, a range of views amongst congregations is to be distinguished from this test. For this reason, section 5AD(1) requires regard to be had to the belief of the 'person.'

44. In addition, various provisions in the Bill adopt a test that requires that the conduct is consistent with religious doctrine, tenets or belief. This is distinct from tests that require conduct to conform with religious doctrine. In Cobaw the interpretation applied to the phrase 'conforms with the doctrines of the religion' by the Victorian Court of Appeal was that 'the doctrine requires, obliges or dictates that the person act in a particular way when confronted by the circumstances which resulted in their acting in the way they did' [120] and 'as requiring it to be shown that conformity with the relevant doctrine(s) of the religion gave the person no alternative but to act (or refrain from acting) in the particular way.' [121] This strict reading is not to be applied under the Marriage Act or the Sex Discrimination Act and for the reasons put elsewhere is inconsistent with the broad protections guaranteed to religious or conscientious belief in international law. Instead, the term 'consistent' is adopted, noting the Macquarie Dictionary definition of that term is 'agreeing or accordant; compatible'.

45. In addition, various provisions adopt a test that requires that the conduct be because of religious susceptibilities. This is distinct from tests that require that the conduct be necessary to avoid injury to religious susceptibilities. Applying such a test in Cobaw, the Victorian Court of Appeal held that that test required demonstration of various matters, including that the harm be 'unavoidable'. The strict reading applied in Cobaw is not intended to be applied under either the Marriage Act or the Sex Discrimination Act. For the reasons put elsewhere in this Statement the test is inconsistent with the broad protections guaranteed to religious or conscientious belief in international law.

46. Proposed subsections 5AD(2) of the Marriage Act and section 38A(4) of the Sex Discrimination Act clarify the means by which an entity may be said to hold a relevant belief or a relevant marriage belief. In Cobaw an entity's doctrines were held to be limited to the matters expressly addressed solely in its core governance document. For the reasons put elsewhere in this Statement the test is inconsistent with the broad protections guaranteed to religious or conscientious belief in international law. This reading, it is considered, fails to appreciate the many and varied means by which religious belief may be adopted or held. The question concerns when the law will recognise the holding of belief. The effect of the reading in Cobaw is to impose very strict limitations on the expression of religious freedom by religious bodies. The amendments provide a means for the law's recognition of when religious bodies have adopted a belief that gives due recognition to the broad plurality of religious expressions within Australia, and the many and varied unique means by which they may adopt or define their beliefs.

The right to freedom of expression

47. Article 19 of the ICCPR provides a protection to freedom of expression. It is as follows:

1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

a.
For respect of the rights or reputations of others;
b.
For the protection of national security or of public order (ordre public), or of public health or morals.

48. The right to freedom of expression includes religious discourse. [122] The relevance of freedom of religious expression to human rights principles is demonstrated by the long-running Trinity Western University law school saga. In Trinity Western University v. The Law Society of British Columbia [123] the Court of Appeal held that the decision of the Law Society of British Columbia to refuse accreditation to practice law in the Province, to graduates of a new proposed TWU law school, was unlawful. That decision had been based on the "Community Covenant" required of all students to (among other things) "abstain from... sexual intimacy that violates the sacredness of marriage between a man and a woman". The Court held that the Law Society had failed to give proper consideration to the impact on the religious freedom of TWU students and graduates in making its decision. In Canada, concerns over the right to freedom of religious expression were seen to be sufficiently legitimate to require the inclusion of an acknowledgement in the Preamble to the Canadian Civil Marriage Act 2005 of 'the freedom of members of religious groups to hold and declare their religious beliefs'.

49. As acknowledged by the United States Supreme Court in Obergefell v. Hodges the view that '[m]arriage...is by its nature a gender-differentiated union of man and woman...long has been held-and continues to be held-in good faith by reasonable and sincere people here and throughout the world.' [124] The Bill gives recognition to the freedom to express that view. Sections 88J and 88JA clarifies that that these rights are not confined to the private sphere but also extend to business, employment, community and public affairs and that it is not unlawful to hold and publicly express a relevant belief or relevant marriage belief.

50. In respect of the limitations to freedom of expression contained at Article 19(3), UN Human Rights Committee General Comment No. 34 provides that 'Paragraph 3 may never be invoked as a justification for the muzzling of any advocacy of multi-party democracy, democratic tenets and human rights'. [125] Under the ICCPR 'human rights' are inclusive of the right to religious and conscientious freedom. Sections 88J, 88JA, 88K, 88KA, 88L and 88P give effect to the internationally protected right of freedom of expression.

Protections to the religious and moral education of children

51. Article 18(4) provides that States Parties must ensure 'the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.' Articles 13(3)-(4) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) reinforce that right.

52. Parents in Canada and several European countries have been required to leave their children in sex-education classes that teach the virtues of same-sex activity and its equality with heterosexual marital activity. As an example, David and Tanya Parker objected to their kindergarten son being taught about same-sex marriage after it was legalised by the Massachusetts Supreme Judicial Court, leading to David being handcuffed and arrested for trying to remove his son from the class for that lesson.

53. An alteration in the law of the Commonwealth resulting in a change to a fundamental social institution, as is proposed by the Bill, would compel consideration of how that change is to be reflected in public education. Any such requirement in public education would amount to a limitation on the Article 18(4) rights of the parents to 'ensure the religious and moral education of their children in conformity with their own convictions'. Importantly, it would also amount to a limitation on the right of educators to express their religious beliefs. Protections to such educators are provided under various provisions in the Bill, including section 88K.

54. Children, as autonomous individuals, enjoy the freedom of thought, conscience and religion in their own right, as do adults. Article 14 of the Convention on the Rights of the Child (CRC), which Australia has ratified, provides:

1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.
2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

55. Article 5 also contains a general requirement for State Parties to 'respect the responsibilities, rights and duties of parents ... to provide ... appropriate direction and guidance in the exercise by the child of the rights contained in the Covenant.' Article 29(1) of the CRC provides:

that the education of the child shall be directed to: ...

(b)
The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;
(c)
The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilisations different from his or her own;
(d)
The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin

56. In Hartikainen et al. v. Finland, the UNHRC concluded that instruction in a religious context should respect the convictions of parents and guardians who do not believe in any religion. In its View, the Committee considered that the requirements of Article 18(4) were met by the Finnish legislation providing for religious instruction in schools as 'paragraph 6 of the School System Act expressly permits any parents or guardians who do not wish their children to be given either religious instruction or instruction in the study of the history of religions and ethics to obtain exemption therefrom by arranging for them to receive comparable instruction outside of school.' [126] Section 88R of the Bill respects the rights of parents or guardians who do not wish their children to be given instruction that is inconsistent with their religious or conscientious beliefs.

57. In Leirvåg and ors v. Norway [127] the UNHRC found that Norway's system of religious education which required dissenting parents to identify the aspects of the teaching to which they had a philosophical or religious objection breached Article 18(4). The Committee's View was:

14.7 In the Committee's view, the difficulties encountered by the authors, in particular the fact that Maria Jansen and Pia Suzanne Orning had to recite religious texts in the context of a Christmas celebration although they were enrolled in the exemption scheme, as well as the loyalty conflicts experienced by the children, amply illustrate these difficulties. Furthermore, the requirement to give reasons for exempting children from lessons focusing on imparting religious knowledge and the absence of clear indications as to what kind of reasons would be accepted creates a further obstacle for parents who seek to ensure that their children are not exposed to certain religious ideas. In the Committee's view, the present framework of CKREE, including the current regime of exemptions, as it has been implemented in respect of the authors, constitutes a violation of article 18, paragraph 4, of the Covenant in their respect.

58. The same principles may be applied to a parent or child who expresses a religious or conscientious objection to teaching that is inconsistent with a relevant belief. Section 88R gives effect to these internationally protected rights.

59. In the European context, the cases that have considered instruction in schools have primarily focussed upon Article 2 of Protocol No 1 to the European Convention on Human Rights, which provides:

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

60. The ECHR has held that:

The second sentence of Article 2 of Protocol No. 1 aims in short at safeguarding the possibility of pluralism in education which possibility is essential for the preservation of the "democratic society" as conceived by the Convention. In view of the power of the modern State, it is above all through State teaching that this aim must be realised. [128]

61. Furthermore the right to religious freedom is not to be relegated solely to any particular time (whether allotted to religious instruction or otherwise), the right to religious freedom is to be recognised across the whole curriculum. The ECHR has held that the right applies across the entirety of the educational experience of the child:

51. The Government pleaded in the alternative that the second sentence of Article 2 (P1-2), assuming that it governed even the State schools where attendance is not obligatory, implies solely the right for parents to have their children exempted from classes offering "religious instruction of a denominational character".
The Court does not share this view. Article 2 (P1-2), which applies to each of the State's functions in relation to education and to teaching, does not permit a distinction to be drawn between religious instruction and other subjects. It enjoins the State to respect parents' convictions, be they religious or philosophical, throughout the entire State education programme. [129]

62. Furthermore, the ECHR has held that the obligation to 'respect' religious conviction sets a high standard on the State in the education of children:

That duty is broad in its extent as it applies not only to the content of education and the manner of its provision but also to the performance of all the "functions" assumed by the State. The verb "respect" means more than "acknowledge" or "take into account". In addition to a primarily negative undertaking, it implies some positive obligation on the part of the State. [130]

63. Section 88R thus protects the right of parents to ensure the religious and moral education of their children. It also gives effect to the religious and conscientious freedoms of children, as protected under the Convention on the Rights of the Child. Subsection 88R(5) gives effect to Articles 2(1) and 28 of the Convention on the Rights of the Child, ensuring that the education of the child will not be detrimentally effected or discriminated against as a result of the expression of the child's religious and conscientious rights, or those of their parents.

The right to marry and found a family

64. The right to marry and to found a family is contained in Article 23 of the ICCPR. As noted above, under current human rights instruments and jurisprudence, including the United Nations Human Rights Committee decision in Joslin v New Zealand, the right to marry does not oblige states to legislate to allow same-sex couples to marry. However, it is clear that there are no legal impediments to Australia taking this step. The Bill retains the existing consent, marriageable age and prohibited relationship requirements for intended spouses under the Marriage Act, consistent with Article 23 of the ICCPR.

Application to State and Territories

65. Proposed section 6(2) of the Marriage Act and proposed section 38B of the Sex Discrimination Act provide that Part VAA and sections 37, 38 and 38A respectively will exclude or limit the operations of the laws of States or Territories that are inconsistent with the rights recognised therein. Such is intended to effect consistency in Australia's acquittal of its obligations under international law, as outlined in this Statement. Currently State and Territory law gives varying and incomplete protection to the internationally recognised rights of freedom of expression, association, thought, conscience or religion. Pursuant to Article 50 of the International Covenant on Civil and Political Rights the Commonwealth is held to account for the actions of the State and Territories in failing to protect human rights, including the right to religious and conscientious freedom under Article 18. Where State or Territory law protections to religious freedom do not fulfil the protections guaranteed under international human rights law, including where exemptions in State or Territory anti-discrimination law do not reflect the scope of religious freedom protections, the Commonwealth is responsible. The Bill retains the existing protections against discrimination in the Sex Discrimination Act but, in giving effect to the Commonwealth's obligations under international law prevails over any inconsistent State or Territory law to ensure that the applicable rights are recognised equally and without discrimination in all the States and Territories of the Commonwealth in respect of acting on a relevant marriage belief and expressing a relevant belief.

Conclusion

66. The Bill is therefore compatible with human rights. It permits couples to marry regardless of their sex or gender, sexual orientation, gender identity or intersex status where the union is not that of a man and a woman while protecting the rights to expression, association, freedom of thought, conscience and religion or belief and the rights of the child. To the extent that the Bill may limit the freedom of thought, conscience and religion or belief, those limitations are consistent with the requirement under the ICCPR that they be necessary and 'use no more restrictive means than are required'.


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