Protection of Religious Freedom through Discrimination Balancing Clauses

I am presenting a paper on this topic at the Freedom for Faith “Freedom17” conference in Canberra on Wednesday June 14. The paper is available here: Protecting Religious Freedom in Australia Through Legislative Balancing Clauses. It aims to review all the relevant clauses in discrimination laws in Australia (Commonwealth, State and Territories) which balance religious freedom with the right not to be discriminated against. (If I have missed any, please feel free to let me know!) It also reviews the relevant balancing clauses which were proposed in the Exposure Draft Bill released by the Federal Government last year as an example of how same sex marriage might be recognised. Finally, it explores circumstances in which some of the State and Territory discrimination laws might be invalid, where they provide narrower religious freedom protection than the Commonwealth law does.

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Report of the Select Committee on Same-Sex Marriage Bill

The Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill has now handed down its formal Report (15 Feb 2017). I have referred previously to my evidence to the Committee and my response to the remarks of one of the other witnesses: see Why proposed same-sex marriage balancing clauses would be constitutional and right (29 Jan 2017).

The Report contains no major surprises, perhaps to be expected from an area which is so contentious and in which positions of the Committee members and the various witnesses are so far apart on basic presuppositions. But overall it is a well-balanced document which fairly presents the different points of view. As the Committee itself notes, its deliberations are really only relevant for the future, if Parliament chooses to revisit this area. At the moment the current Government’s preferred option, a plebiscite, has been rejected by the Parliament, and the Government has indicated that in line with its election commitments, it will not be moving to a vote in Parliament on the issue.

Nevertheless, it is worth noting some areas of consensus, and flagging the issues on which there still remains substantial disagreement.

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Why proposed same-sex marriage balancing clauses would be constitutional and right

Last week I had the privilege of giving evidence to the Australian Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill. (To read my submission, and others, see the pdf links on this page; my submission was considered on 24 January 2017.) The Committee was considering the terms of an Exposure Draft Bill which had been released last year by the Commonwealth Attorney-General, as the sort of legislation which might be introduced were Australians to support change of the law in this way in a plebiscite. (See here for my previous comments on the Exposure Draft.)

While the proposal for a plebiscite on the issue was defeated in Parliament last year, the Senate obviously considers it worthwhile discussing the merits of the Exposure Draft, as it represents to some extent Government thinking on what the change might look like. In particular the terms of reference of the Select Committee were concerned with the protections for religious freedom provided by the Bill. This was the focus of my submission.

I appeared on a panel before the Committee with two other legal scholars, Professor Patrick Parkinson from Sydney University Law School, and Dr Luke Beck from Western Sydney University School of Law. It became apparent that Dr Beck and I did not entirely agree on a number of points. In particular, following his submission, Dr Beck published an opinion piece in The Age, “Why proposed same-sex marriage exemptions would be unconstitutional” (25 January 2017). I would like here to explain why I disagree with that comment.

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Overseas Muslim marriages and Australian law

Two cases involving purported marriages under Islamic law, entered into overseas by Australian residents, have received recent press coverage. The decisions of the courts involved seem to be clearly correct, and they helpfully illustrate some important principles of Australian law. A person whose home is Australia cannot legally travel outside this country and enter into a valid marriage with a minor, or enter into a second marriage when already lawfully married under Australian law. While Australian law generally supports religious freedom, the interests of children and women are legitimately seen to over-ride the religious freedom to enter into underage or polygamous marriages.

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Legal implications of same sex marriage for Christian life and ministry

I was privileged today to present a paper on issues from a Christian perspective raised by the possible introduction of same sex marriage, at a seminar on the topic held at the Lower Mountains Anglican Parish centre at Glenbrook. For those who are interested (and the paper is of particular relevance to Christians, so others may not find it so helpful), the longish paper can be downloaded from the seminar website here. I understand there may be a video of the presentations available at a later stage on the same website. The other speaker I was honoured to share the platform with was Dr Peter Jensen, who gave a terrific overview of marriage as a social phenomenon and the Bible’s view of marriage.

Draft Australian Same Sex Marriage legislation unveiled

Today the Federal Attorney-General, Senator the Hon George Brandis QC, released an Exposure Draft of the legislation that would, if it were to pass the Federal Parliament, introduce same sex marriage to Australia- the Marriage Amendment (Same-Sex Marriage) Bill. There is a good summary of the provisions of the legislation in a press release issued by the Attorney-General. This follows the introduction on 14 September 2016 of an enabling Bill to allow a plebiscite, a popular vote, on the matter to be put to the Australian public, the Plebiscite (Same-Sex Marriage) Bill 2016. That Bill has not yet received any substantive consideration by the Parliament.

Earlier today the leader of the Australian Labour Party Opposition, Bill Shorten, announced that his Party would be voting against the enabling Plebiscite Bill when it reaches the Senate: see “Same-sex marriage: Plebiscite would harm gay and lesbian people, Bill Shorten says” (ABC News). It seems clear, at least if all the cross-bench members who have indicated their intentions maintain those intentions, that the Bill will be defeated in the Senate.

The ALP and the Greens will presumably now be urging the Government to put its legislation directly to a Parliamentary vote. The Government, however, has steadfastly maintained that it went to the recent Federal election with a promised plebiscite as the only route to introduction of same sex marriage, and that if there is no plebiscite, the matter will have to be dealt with by some future Government after the next Federal election. 

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