House of Representatives

Supplementary Explanatory Memorandum

(Circulated by authority of the )

Summary of Supplementary Statement of Compatibility with Human Rights

Rights to equality before the law and to non-discrimination

The Right to Equality in Respect of Marriage

15. 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 (ICCPR) in respect of the amendment of the definition of marriage. No inequality arises where a State retains the traditional definition of marriage because the definitional boundary of marriage does not enfold persons of the same sex. The scope of marriage under the ICCPR does not contain same sex marriage by definition. On that basis the Senate Select Committee noted that UN Human Rights Committee had 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. However, nothing in the provisions of the ICCPR prevents Australia from enacting a law to recognize some same sex relationships to be marriages.

The Right to Equality in Respect of Religious Belief

16. The Bill does however engage the rights to freedom from discrimination on religious grounds enshrined in Articles 2(1) and 26 of the ICCPR. Any refusal to provide an exemption for religiously conscientious objectors would amount to discrimination on the basis of their religious or conscientious convictions. 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. 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 right to freedom of thought, conscience and religion

17. The right to freedom of thought, conscience and religion protected under Article 18 of the ICCPR is wide-ranging in scope and protects both individual and corporate entities. Under Article 18(3) limitations on this right can only occur where such are 'necessary'. International law also requires that any state limitation on this right 'shall use no more restrictive means than are required'. A weighing of the relative burden placed upon religious and conscientious freedom amongst the applicable alternatives is then required in order to identify the means that are the least restrictive.

18. However, as noted above, the UN Human Rights Committee has held 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. 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. Furthermore, 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.

19. Even if such is not accepted, and the right to equality extended to same-sex marriage in international law, 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. To require celebrants to act against their religious or conscientious convictions for the purposes of solemnising same-sex marriages 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. The Bill achieves an appropriate balance by permitting such religious or conscientious objectors the ability to have their religious or conscientious objections protected in law, whilst permitting persons of the same-sex to engage individuals and businesses in respect of the solemnisation of their marriage. In so doing the Bill avoids the discrimination that would arise against such religious or conscientious objectors were the protections not offered.

20. As outlined in Appendix A to this Summary, the prospect of detrimental conduct aimed at persons because of their beliefs about marriage poses a real threat to the lawful exercise of their religious and conscientious freedoms. 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, the Bill then introduces a defence against unfavourable treatment initiated by a public authority or by a person acting on the request or requirement of a public authority against persons and entities that hold a relevant belief.

21. 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. 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. The Bill amends section 37 of the Sex Discrimination Act 1984 to provide a definition of 'body established for religious purposes'. The definition covers faith based charities, such as adoption agencies. It gives effect to The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief which provides that 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'.

Protections to the religious and moral education of children

22. 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'. Article 14 of the Convention on the Rights of the Child provides that children enjoy the freedom of thought, conscience and religion in their own right, as do adults. The Bill enacts these rights by permitting children to be excused from tuition that is inconsistent with a relevant belief.

Application to State and Territories

23. The Bill excludes or limits the operation of the laws of States or Territories that are inconsistent with the rights protected in the Bill. 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

24. 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. 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'.