Supplementary Submission: Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill
The Law Council appeared before the Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill (the Exposure Draft) on 23 January 2016. In response to questions arising from the Committee and evidence provided to the Committee by the Wilberforce Foundation, the Law Council has prepared this supplementary submission to further inform the Committee’s consideration of the Bill.
The focus of this supplementary submission is to provide the Law Council’s views on the following issues raised during the Law Council’s appearance before the Committee:
- The United Nations Human Rights Committee’s (UNHRC) decision in Joslin v New Zealand1 (the Joslin case) where the UNHRC found that ‘a mere refusal to provide for marriage between homosexual couples’ did not constitute a breach of a State Party’s obligations under the International Covenant on Civil and Political Rights (ICCPR);
- The concept of ‘balancing of harms’ when dealing with competing human rights;
- The concept of a ‘single entry point’ for marriage celebrants; and • The case of Christian Youth Camps and Anor v Cobaw Community Health Services Ltd and Ors2 (the Cobaw case), the dissenting judgment of Justice Redlich and the issue of religious liberty in the commercial arena.
In short, the Law Council considers that:
- The increased number of States that recognise same-sex marriages in the nearly two decades since the Joslin case was decided, together with jurisprudence concerning the significance of the principles of equality and non-discrimination may suggest that the approach of the UNHRC in that case may no longer be followed.
- A proportionality approach should be adopted in determining whether human rights may justifiably be limited. The balance of harms may be taken into account as part of a structured proportionality analysis and when determining how two rights may be adjusted to accommodate each other.
- A ‘single entry point’ system for celebrants should not be supported. In the Law Council’s view, there is no proper basis for affording an exemption to civil celebrants. The proposed single entry point system is, in essence, concerned with the practical administration of such an exemption in State law; it is no answer to whether the exemption should be afforded in the first place. The Law Council also notes that the province of Saskatchewan, Canada ultimately did not adopt a single entry point system.
- Justice Redlich’s decision in the Cobaw case was in dissent. Justice Neave who, along with President Maxwell, formed the majority in the Cobaw case, relied upon international jurisprudence as support for the proposition that protections afforded to freedom of religion are generally weaker in the commercial sphere.
You can read the full submission below.