Contractor dismissed due to views on same sex marriage

In the context of the current postal survey on changing the law of marriage in Australia, press reports in the last few days indicate that a contractor who had been working for an ACT-based children’s entertainment business has lost her position solely due to her indication of support for a “No” vote in the current postal survey on the issue being conducted in Australia. (See here for a detailed report on the incident quoting both sides.)

It seems worth commenting on the legal implications of the decision to terminate the contractor, especially in light of the “Safeguards” legislation that was recently passed by the Federal Parliament, and on which I recently posted

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Some in-depth reading on same-sex marriage issues

An academic colleague suggested the other day that it would be good to post some recommendations for academic commentary on the same-sex marriage issues, for those who are interested in reading that goes a bit more in-depth than a standard blog post or opinion piece.

I thought this was a great idea. I have compiled the following list of reading from recommendations of legal colleagues who, like me, have serious concerns about the proposal to introduce same-sex marriage. In that sense it is not a ‘balanced’ list. Those who want to find enthusiastic academic support for introducing the reform will not find it hard to do so elsewhere. But some of these pieces may not be so widely read, and deserve to be better known. Some are quite recent. 

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Free speech and vilification in the marriage law postal survey

Australia is involved in a debate about whether same sex marriage should be introduced. The question is being put to the electors in the form of a voluntary postal survey, the question in which is simply: “Should the law be changed to allow same sex couples to marry?”

The original intention of the current Government had been to put this question to the people of Australia in a compulsory plebiscite. This option being defeated twice in Parliament, the postal survey has been designed to be run without explicit authorising legislation. However, once it was decided that the survey would proceed, concerns were expressed that the debate might contain misleading and deceptive advertising, which would usually have been dealt with under the electoral laws (but since the survey was not being run under those laws, no such protections applied for the survey.) In addition, concerns were expressed about hateful and harmful speech on both side of the debate.

In response to these concerns, the Commonwealth Parliament today (in a rare example of swift bipartisan action) saw the introduction and enactment of the Marriage Law Survey (Additional Safeguards) Act 2017 (which has now received the Royal Assent, and become Act No 96 of 2017). The Act will come into operation on Thursday 14 September, 2017 (tomorrow, as I write.)

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Press release of the Wilberforce Foundation- full text

In the ongoing debates about same sex marriage in Australia (shortly to be the subject of a voluntary postal survey conducted by the Australia Bureau of Statistics, if it survives a High Court challenge), a number of professional organisations have decided to weigh in, in support of the “Yes” vote. The most recent such statement was issued by a combination of lawyers and doctors (see a press report of August 19 here, and the full text of the joint statement, by the NSW Bar Association president Arthur Moses, president of the Law Society of NSW Pauline Wright, and president of the NSW division of the Australian Medical Association Brad Frankum, is here.)

A number of lawyers around Australia, myself included, were concerned that this statement was not made after consultation with members of the various organisations, and in fact was misleading precisely at the point where one would expect a statement from lawyers to be accurate, in its statements about the law. The “Wilberforce Foundation”, an informal coalition of practising lawyers and legal academics committed to the preservation and advancement of common law values, rights and freedoms, has issued a press release expressing our concerns about the combined statement. The essence of the concerns are summarised in this press report of August 31. For those interested in the full text of the statement, it can be found here: Wilberforce Foundation Media Release .

It should be noted that the Australian Medical Association also issued a similar statement of support for the “Yes” case, which has also been subsequently challenged by a number of senior medical professionals as wrong on its assertions about a lack of peer-reviewed research on outcomes for children of same sex couples. As with the combined medico-legal statement, this AMA statement was not issued after consultation with members.

Finally, speaking of a lack of consultation, as I prepare this post I see that WordPress seems to have decided to add a “rainbow banner” to the top of my page, without asking me if I would like such. This of course is currently seen as a symbol of support for same sex marriage. As would be well-known to regular readers, that is not a cause I support. I trust others will not be confused by the banner (I am not sure whether it will appear on platforms on which the blog is read or not.)

The main event associated with the rainbow in the Bible, of course, was God’s judgement on humanity for its rebellion against his will (Genesis 6-9), and offer of salvation to those who chose to join themselves to his chosen Saviour. That is a message I am very happy to support, and so while it is imposed on me, that is the message I will choose to see in the rainbow.

Religious Freedom protections in new same sex marriage proposals: too few, too narrow

The debate over same sex marriage in Australia has been re-ignited by news that some members of the federal governing Liberal/National Party (LNP) coalition are proposing, contrary to their party’s policy, to introduce legislation in Federal Parliament this coming week to redefine marriage to extend it to same sex couples. In particular, press reports today indicate that a new Marriage Amendment (Definition and Religious Freedoms) Bill 2017 will be introduced, one feature of which is that it contains legislative protections for religious freedom, designed to encourage support of the legislation by believers. In my view the protections to be provided, if press reports about the proposal are accurate, are far too few and far too narrow, and the proposal cannot be seen as providing adequate protection for this fundamental human right.

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Birth certificate alteration for a married person?

A recent decision of the United Nations Human Rights Committee has ruled that the Australian government is in breach of its human rights obligations, by not providing for a person who has “transitioned” from male to female, to have their birth certificate amended. The reason that this request has been refused is that the person, “G”, was married to a woman, and NSW law does not allow the birth certificate of a married person to be amended. In my view this provision of NSW law is perfectly sensible (given that Australia does not recognise same sex marriage), and I have to say that I think the UNHRC has got this wrong.

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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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