The definition of marriage is an issue that is deeply held
by many in Australia and accordingly, the Turnbull Government's policy position
is to allow the Australian people to have their say—via a plebiscite—on whether
the definition should change.
While legislation to enable the plebiscite was defeated in
the Senate in 2016, this remains the Government's policy position.
As part of the preparatory works for the plebiscite, an
exposure draft for discussion was released by the Attorney‑General. In
late 2016, the Labor, Greens and NXT parties voted to create a Senate Select
Committee to examine the exposure draft, with particular reference to
religious freedom protections.
Evidence before the committee confirmed that Australia is
not required to make a change to the definition of marriage under jurisprudence
in international law, but nor is there an impediment to it doing so. The United
Nations Human Rights Committee has made it clear that so long as a nation state
has legislation to recognise and protect same-sex relationships—as Australia
has—then the right to freedom from discrimination and equality before the law
is fulfilled because under the International Covenant on Civil and Political
Rights, marriage is defined as being between a man and a woman (Article 23).
The European Court of Human Rights has made a number of judgements in recent
years supporting this approach.
The context of this inquiry, therefore, was not that a
change is inevitable, but that a parliament may choose to legislate for a
change to the definition of marriage, potentially enlivening the right to
freedom of thought, conscience and religion in a range of areas. Evidence
demonstrated that there are substantial matters of law and individual human
rights to be dealt with that extend well beyond the Marriage Act itself. I note
that if Australia is to remain a plural, tolerant society where different views
are valued and legal, legislators must recognise that this change will require
careful, simultaneous consideration of a wide range of specialist areas of law
as opposed to the common perception that it involves just a few words in one
act of parliament.
As Chair, I wish to record my appreciation for the
collegiate manner in which members of the committee and witnesses have
approached this inquiry. Participants with significantly different
understandings of how the institution of marriage should be defined, have
worked constructively to explore those differences and to place on the public
record a report that identifies fundamental rights that must be carefully
considered, respected and balanced in any future legislation that a Parliament
Navigation: Previous Page | Contents | Next Page