The committee embarked on this task cognisant of the deeply
held beliefs and aspirations of people engaged in this national debate,
regardless of how they view the institution of marriage. Debate surrounding
previous bills introduced, and associated inquiries undertaken, into the issue
of same-sex marriage have drawn on advice and evidence garnered from key
stakeholders and the broader Australian community and have been informed by
legal cases and legislative changes across the world. Often this evidence was presented
in the context of a contested debate, with stakeholders expounding and
defending their positions rather than seeking to engage in a balanced and
respectful exploration of the issues at hand.
The committee considers that this inquiry into the Exposure
Draft (released by the Attorney-General for consultation alongside the proposed
legislation for a same-sex marriage plebiscite) provides an opportunity to
consider much of this evidence in a more collegiate and coordinated manner and to
identify where there may be areas of agreement, and to better understand and
narrow those areas where there are differences of approach.
It is a matter of record that the enabling legislation for a
plebiscite was voted down in the Senate. Despite this, the associated Exposure Draft
released by the Attorney‑General as part of the preparatory work for a
was deemed to be a useful vehicle to seek consensus on agreed elements of the
proposal, and to better identify the substantive issues that remain contested as
a result of people's varying political or philosophical perspectives. It is the
hope and intention of the committee that this body of evidence will prove a
valuable and instructive foundation, identifying the scope of issues to be
addressed by a parliament considering legislative changes to the definition of
marriage in this area.
The issues discussed below, and expanded on in the report, have
been developed from provisions in the Exposure Draft, from the evidence
received through the written submission process, and from the committee's three
public hearings. With regard to the evidence, the committee is grateful for the
quality of the written submissions and the constructive engagement of all
witnesses over the course of the public hearings, despite the very short time
frame available to all parties.
Areas of consensus
There was broad
agreement that any future legislation to amend the Marriage Act should ensure
religious freedoms are appropriately protected when considering changes that
extend access to marriage to all adult couples. In addition, such legislation
should exercise caution around the terminology it employs.
The committee notes
from evidence from witnesses that if care is taken in describing groups of
people and legislative concepts, then opposition to different parts of any future
legislation can be more easily avoided.
Two notable examples
raised during the inquiry were the terms 'same-sex' in the Short Title of the Exposure
Draft and the description of provisions to allow ministers of religion and
others to opt out of solemnising same-sex weddings as exemptions.
In the first example, same-sex couples are unnecessarily singled
out, by providing exemptions for situations that are 'not the union of a
man and a woman'. For those in support of same-sex marriage, this was seen to increase
the perception that this group of people were being discriminated against. For others,
this narrow definitional approach failed to protect all aspects of their
religious and doctrinal view of marriage.
In the second example, many submitters voiced concern that the
right to have and exercise religious freedom is sometimes considered as an 'exemption'.
This labelling of a fundamental right as in some way a departure from the
norm concerned many who offered the term 'protection' as more appropriate
terminology. Supporters of same-sex marriage generally recognised this concern
and agreed that amendments could be made to more positively frame the
expression of this right.
In a similar vein, careful drafting to clarify the
definitional boundaries of some of the key concepts would go a long way to
dispelling some concerns about scope and intent. 'Religious body or religious
organisation', as well as 'reasonably incidental to', should be clearly defined
as this will determine the providers and the types of goods and services where
discrimination will be permitted. Many witnesses held the term 'conscientious
belief' lacked definition and could potentially have an unlimited scope.
Similarly, the use of the expression '2 persons' will enable the inclusion of persons
of any sex or gender.
On a general note, the committee observed considerable
consensus for a continuation of exemptions for ministers of religion, and for religious
celebrants involved in the solemnisation of same-sex marriages.
Areas for further discussion
There were also a number of areas where views differed. These
concerned matters contained in the detail of the Exposure Draft and
particularly in respect to how competing rights should be balanced in
Balancing these rights is the central task for a Parliament's
consideration of this legislation. As one witness surmised, 'balancing' does
not mean that one right is crushed under the weight of the other. The right to
marry; the right to freedom of thought, conscience and religion; the right
to equality; and the right to freedom from discrimination are all rights
engaged in this debate. The committee heard contrasting views on how these
competing rights could be respected. There was broad acknowledgement throughout
the inquiry of the importance of striking an appropriate balance between these
rights in any future legislative proposal so as to minimise any concerns that
may exist in the community.
The essential nature of marriage and its role in society is a philosophical
discussion and goes to the core of one's identity. This was explored by a
number of submitters and witnesses. These different perspectives were
practically illustrated in evidence on whether the right to choose to provide
services only for the marriages between a man and a woman on the grounds of a
religious or conscientious belief is available to individuals as well as
members of recognised religious groups. The committee heard evidence from a
range of contributors on possible remedies on how these issues could be
As discussed above, there was consensus in the evidence
received that the right to religious freedom should be positively protected.
The nature of possible protections will continue to be debated. The committee
heard of various potential remedies to this issue, such as an anti-detriment
provision or a distinct legislative instrument to protect religious freedom.
Many witnesses submitted that the introduction into the
Australian legal context of a protection for freedom of religion was regarded
as being most appropriately placed within anti‑discrimination legislation.
Necessarily, this would require consideration of any future anti-discrimination
laws interactions with existing state and territory provisions.
It is however clear that should
legislation be enacted to change the definition of marriage, careful attention
is required to understand and deliver a balanced outcome that respects the
human rights of all Australians if the nation is to continue to be a tolerant
and plural society where a diversity of views is not only legal but
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