New and continuing matters
1.1
This chapter provides assessments of the human rights compatibility of:
- legislative instruments received between 13 October and 2
November (consideration of 2 legislative instruments from this period has been
deferred);[1] and
- bills and legislative instruments previously deferred.
1.2
The chapter also includes reports on matters previously raised, in
relation to which the committee seeks further information following
consideration of a response from the legislation proponent.
1.3
The committee has concluded its consideration of five legislative
instruments that were previously deferred.[2]
Instruments not raising human rights concerns
1.4
The committee has examined the legislative instruments received in the
relevant period, as listed in the Journals of the Senate.[3] Instruments raising human rights concerns are identified in this chapter.
1.5
The committee has concluded that the remaining instruments do not raise
human rights concerns, either because they do not engage human rights, they
contain only justifiable (or marginal) limitations on human rights or because
they promote human rights and do not require additional comment.
Response required
1.6
The committee seeks a response or further information from the relevant minister
or legislation proponent with respect to the following bills and instruments.
Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017;
and
Commonwealth Redress Scheme for Institutional Child Sexual Abuse
(Consequential Amendments) Bill 2017
Purpose |
Seeks to establish a Commonwealth Redress Scheme for
Survivors of Institutional Child Sexual Abuse |
Portfolio |
Social Services |
Introduced |
House of Representatives,
26 October 2017 |
Rights |
Right to an effective
remedy, privacy, equality and non-discrimination (see Appendix 2) |
Status |
Seeking additional
information |
Eligibility to receive redress under the Commonwealth Redress Scheme
1.7
The Commonwealth Redress Scheme for Institutional Child Sexual Abuse
Bill 2017 (the bill) seeks to establish a redress scheme (the scheme) for
survivors of institutional child sexual abuse.
1.8
A person is eligible for redress under the scheme if the person was sexually
abused, that sexual abuse is within the scope of the scheme, and the person is
an Australian citizen or permanent resident.[4] Proposed subsections 16(2) and (3) of the bill provide that the proposed
Commonwealth Redress Scheme Rules (the rules) may also prescribe that a person
is eligible or not eligible for redress under the scheme.[5]
Compatibility of the measure with
the right to equality and non-discrimination
1.9
The right to equality and non-discrimination in the International
Covenant on Civil and Political Rights (ICCPR) provides that everyone is entitled
to enjoy their rights without discrimination of any kind, and that all people are
equal before the law and entitled without discrimination to the equal and non-discriminatory
protection of the law. Article 2 of the Convention on the Rights of the Child
(CRC) further provides that states parties to the CRC must respect and ensure
the right to equality and non-discrimination specifically in relation to
children.
1.10
The prohibited grounds of discrimination are race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status. Under 'other status' the following have been
held to qualify as prohibited grounds: age, nationality, marital status, disability,
place of residence within a country and sexual orientation. The prohibited
grounds of discrimination are often described as 'personal attributes'.
1.11
'Discrimination' encompasses both measures that have a discriminatory intent
(direct discrimination) and measures which have a discriminatory effect on the enjoyment
of rights (indirect discrimination). The UN Human Rights Committee has explained
indirect discrimination as 'a rule or measure that is neutral on its face or without
intent to discriminate', which exclusively or disproportionately affects people
with a particular personal attribute.[6]
1.12
As acknowledged in the statement of compatibility, by precluding persons
who are not Australian citizens or permanent residents from being eligible for
the scheme, the restrictions on eligibility for the scheme discriminate on the
basis of nationality or national origin.
1.13
Persons who are the victim of violations of human rights within
Australia's jurisdiction are entitled to a remedy for breaches of those rights
irrespective of their residency or citizenship status.[7] However, differential treatment (including the differential effect of a measure
that is neutral on its face) will not constitute unlawful discrimination if the
differential treatment is based on reasonable and objective criteria such that
it serves a legitimate objective, is rationally connected to that legitimate
objective and is a proportionate means of achieving that objective.
1.14
The statement of compatibility explains that the restrictions on eligibility
of non-citizens and non-permanent residents are necessary to achieving
legitimate aims of ensuring the scheme receives public support and protecting
against large scale fraud. In relation to the latter, the minister explains:
Non-citizens and non-permanent residents...will be ineligible
to ensure the integrity of the Scheme. Verification of identity documents for
non-citizens and non-permanent residents would be very difficult. Opening the
Scheme to all people overseas could result in organised overseas groups lodging
large scale volumes of false claims in attempts to defraud the Scheme, which
could overwhelm the Scheme's resources and delay the processing of legitimate
applications.[8]
1.15
The objective of ensuring the integrity of a scheme to provide redress
for victims of sexual abuse (such as protection against fraudulent claims) may
be capable of being a legitimate objective for the purposes of human rights
law, but the statement of compatibility does not provide sufficient information
about the importance of this objective in the specific context of the
measures. In order to show that the measure constitutes a legitimate objective
for the purposes of international human rights law, a reasoned and
evidence-based explanation of why the measure addresses a substantial and pressing
concern is required. In relation to the explanation in the statement of
compatibility as to the difficulty in verifying documents for non-citizens and
non-permanent residents, it is noted that reducing administrative burdens or
administrative inconvenience alone will generally be insufficient for the
purposes of permissibly limiting human rights under international human rights
law. It is also not clear whether there is evidence to suggest that large scale
volumes of attempted fraud of the scheme may arise from precluding non-citizens
from the scheme, noting that the Royal Commission into Institutional Responses
to Child Sexual Abuse concluded that it saw 'no need for any citizenship,
residency or other requirements, whether at the time of the abuse or at the
time of the application for redress'.[9]
1.16
In relation to the proportionality of the measure, a relevant factor in
determining whether a limitation on human rights is proportionate is whether it
is the least rights restrictive means of achieving the stated objective of the
measure. In this respect, the statement of compatibility notes that it will be
possible to deem additional classes of people eligible for redress under the
rules. The statement of compatibility explains that:
This rulemaking power may be used to deem the following
groups of non-citizen, non-permanent residents eligible: those currently living
in Australia, those who were child migrants, and those who were formerly
Australian citizens or permanent residents.[10]
1.17
It is not clear from the information provided why it is necessary to
include these classes of eligibility in a separate legislative instrument,[11] rather than in the primary legislation. Inclusion in the primary legislation of
the classes of non-nationals foreshadowed in the statement of compatibility as
being likely to be ruled eligible by the minister may be a less
rights-restrictive means of achieving the stated objective of the measure.
Committee comment
1.18
The preceding analysis indicates that the right to equality and
non-discrimination on the basis of nationality or national origin is engaged
and limited by the bill. This is because a person will only be eligible for the
scheme if they are an Australian citizen or Australian permanent resident
notwithstanding that the right to an effective remedy for a violation of human
rights applies regardless of citizenship or residency status.
1.19
The committee therefore seeks the advice of the minister as to:
- whether the restriction on non-citizens' and non-permanent
residents' eligibility for redress under the scheme is aimed at achieving a
legitimate objective for the purposes of human rights law (including any
information or evidence to explain why the measure addresses a pressing and
substantial concern);
- how the measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the restriction on non-citizens' and non-permanent
residents' eligibility for the scheme is proportionate to achieve the stated
objective (including whether there are less rights restrictive means available
to achieve the stated objective).
Compatibility of the measure with
the right to an effective remedy for breaches of human rights
1.20
Article 2(3) of the ICCPR requires State parties to ensure that persons
whose human rights have been violated have access to an effective remedy.
States parties are required to establish appropriate judicial and
administrative mechanisms for addressing claims of human rights violations
under domestic law, and to make reparation to individuals whose rights have
been violated. Effective remedies can involve restitution, rehabilitation and
measures of satisfaction – such as public apologies, public memorials,
guarantees of non-repetition and changes in relevant laws and practices – as
well as bringing to justice the perpetrators of human rights violations. Such
remedies should be appropriately adapted to take account of the special
vulnerabilities of certain categories of persons, including, and particularly,
children.
1.21
The redress scheme seeks to provide remedies in response to
historical failures of the Commonwealth and other government and non-government
organisations to uphold human rights, including the right of every child to
protection by society and the state,[12] and the right of every child to protection from all forms of physical and
mental violence, injury or abuse (including sexual exploitation and abuse).[13] As acknowledged in the statement of compatibility, by implementing a redress
scheme for victims who were sexually abused as children, the scheme promotes
the right to state-supported recovery for child victims of neglect,
exploitation and abuse under article 39 of the CRC.[14]
1.22
The power in proposed subsections 16(2) and (3) to determine eligibility
by way of the proposed rules is broad and, in particular, the minister has a
very broad power to determine persons to be ineligible for the scheme. It is
noted that in media reports concerning the introduction of the bill, the
minister foreshadowed that he proposes to exclude persons from being eligible
if they have been convicted of sex offences, or sentenced to prison terms of
five years or more for crimes such as serious drug, homicide or fraud offences.[15]
1.23
International human rights law jurisprudence states that laws conferring
discretion or rule-making powers on the executive must indicate with sufficient
clarity the scope of any such power or discretion conferred on competent
authorities and the manner of its exercise.[16] This is because, without sufficient safeguards, broad powers may be exercised
in such a way as to be incompatible with human rights. The breadth of the
power to determine eligibility or ineligibility contained in the bill may
therefore engage and limit the right of survivors of sexual abuse to an
effective remedy. The statement of compatibility does not acknowledge that the
right to an effective remedy is engaged by this aspect of the bill.[17]
1.24
Limitations on the right to an effective remedy may be permissible if it
is demonstrated that the limitation addresses a legitimate objective, is
rationally connected to that objective and is a proportionate means of
achieving that objective.
1.25
While the statement of compatibility discusses limiting eligibility of
persons on the basis of survivors' nationality and residency status,[18] no information is provided in the statement of compatibility as to the
rationale for a broad power to determine eligibility or ineligibility by way of
the proposed rules. As limited information has been provided in the statement
of compatibility on this point, it is not possible to determine the extent to
which the right to an effective remedy may be engaged and limited by this
aspect of the bill, and whether such a limitation is permissible.
Committee comment
1.26
The preceding analysis indicates that the right to an effective
remedy may be engaged by the powers under the bill to determine eligibility and
ineligibility for the scheme by way of the proposed Commonwealth Redress Scheme
Rules. This is because the broad rule-making power to determine eligibility or
ineligibility may be exercised in a way that is compatible with this right.
1.27
The committee therefore seeks the advice of the minister as to:
- whether the power to determine eligibility or ineligibility in
the proposed rules is aimed at achieving a legitimate objective for the
purposes of human rights law;
- how the measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the limitation is proportionate to achieve the stated
objective (including whether there are less rights restrictive means available
to achieve the stated objective).
Power to determine when a participating institution is not responsible for
sexual or non-sexual abuse
1.28
Proposed section 21 of the bill sets out when a participating
institution is responsible for abuse. Subsection 21(7) provides that a
participating institution is not responsible for sexual or non-sexual abuse of
a person if it occurs in circumstances prescribed by the rules as being
circumstances in which a participating institution is not, or should not be
treated as being, responsible for the abuse of a person.
Compatibility of the measure with the
right to an effective remedy for breaches of human rights
1.29
The statement of compatibility does not acknowledge that the right to an
effective remedy is engaged by the power to determine by way of rules when a
participating institution is not responsible for sexual or non-sexual abuse.
However, as noted earlier, broad rule-making powers conferred on the executive
may be incompatible with the right to an effective remedy where those powers
are exercised in a manner that is incompatible with the right. Further, where
public officials or state agents have committed violations of human rights,
states parties concerned may not relieve perpetrators from personal
responsibility through the granting of amnesties, legal immunities and
indemnities.[19]
1.30
The explanatory memorandum provides that proposed subsection 21(7) is
intended to ensure that institutions are not found responsible for abuse that
occurred in circumstances where it would be unreasonable to hold the
institution responsible. The explanatory memorandum states by way of example
that such circumstances may include where child sexual abuse was perpetrated by
another child and the institution could not have foreseen this abuse occurring
and could not be considered to have mismanaged the situation.[20]
1.31
As limited information has been provided in the statement of
compatibility on this point, it is not possible to determine the extent to
which the right to an effective remedy may be engaged and limited by this
aspect of the bill, and whether such a limitation is permissible. It is not
clear from the available information whether there may be less
rights-restrictive measures available, including setting out the grounds for
when it may be 'unreasonable' for an institution to be responsible for abuse,
in the primary legislation.
Committee comment
1.32
The preceding analysis indicates that the right to an effective
remedy may be engaged by the powers under the bill to determine by way of the
proposed Commonwealth Redress Scheme Rules when a participating institution is
not responsible for sexual abuse or non-sexual abuse.
1.33
The committee therefore seeks the advice of the minister as to:
- whether the measure is aimed at achieving a legitimate
objective for the purposes of human rights law;
- how the measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the limitation is proportionate to achieve the stated
objective (including whether there are less rights restrictive means available
to achieve the stated objective).
Bar on future civil liability of participating institutions
1.34
Proposed sections 39 and 40 of the bill provide that where an eligible
person receives an offer of redress and chooses to accept that offer, the
person releases and forever discharges all institutions participating in the
scheme from all civil liability for abuse of the person that is within the
scope of the scheme, and the eligible person cannot (whether as an individual,
a representative party or a member of a group) bring or continue any civil
claim against those participating institutions in relation to that abuse.
Compatibility of the measure with the
right to an effective remedy for breaches of human rights
1.35
As noted earlier, the right to an effective remedy requires State
parties to the ICCPR to establish appropriate judicial and administrative
mechanisms for addressing claims of human rights violations, and further
requires that State parties may not relieve perpetrators from personal
responsibility for breaches of human rights.
1.36
Insofar as the bill requires persons who accept an offer of redress under
the scheme to relinquish their right to seek further civil remedies from
responsible institutions for sexual abuse and related non-sexual abuse, the
bill may engage and limit the right to an effective remedy. Such limitations
will be permissible under international human rights law where the measure
pursues a legitimate objective and is rationally connected to and proportionate
to that objective.
1.37
The statement of compatibility acknowledges that the right to an
effective remedy may be engaged and limited by this aspect of the bill, but
considers that any limitation is reasonable, necessary and proportionate to
ensuring the scheme's integrity and proper functioning.[21] In particular, the statement of compatibility explains:
Due to its non-legalistic nature, redress through the Scheme
will be a more accessible remedy for eligible survivors than civil litigation.
Entitlement to redress is determined based on a standard of ‘reasonable
likelihood’, which is lower than the standard for determining the outcome of civil
litigation, which is the balance of probabilities. The availability of redress
is dependent on the extent to which Territory government and non-government institutions
opt-in to the Scheme. Consultation has shown that institutions are not likely
to opt-in to the Scheme if they remained exposed to paying compensation through
civil litigation in addition to paying monetary redress. Attaching the release
to entitlement to all elements of redress is necessary to encourage
institutions to opt-in and to make redress available to the maximum number of
survivors.[22]
1.38
Maximising the amount of redress available to survivors of childhood
sexual abuse is likely to be a legitimate objective for the purposes of
international human rights law. Releasing institutions from further liability
so as to increase the likelihood of opting into the scheme appears to be
rationally connected to this objective.
1.39
Questions arise, however, in relation to the proportionality of the
measure, and in particular whether there are adequate safeguards in place.
Relinquishing a person's opportunity to pursue civil litigation and possible
common law damages is a significant decision for a victim of abuse to make,
particularly as the amount to be provided under the redress scheme is capped at
$150,000.[23] The minister explains that, in order to acknowledge the limitation on the right
to an effective remedy that arises from this aspect of the bill:
...the Scheme will deliver free, trauma informed, culturally
appropriate and expert Legal Support Services. These services will be available
to survivors for the lifetime of the Scheme at relevant points of the
application process, and will assist survivors to understand the implications
of releasing responsible institutions from further liability. This means that
survivors will be able to make an informed choice as to whether they wish to
accept their offer and in doing so release the institution from civil liability
for abuse within the scope of the Scheme or seek remedy through other avenues.[24]
1.40
Notwithstanding the description of the proposed legal support services
described in the statement of compatibility, the bill itself includes limited
detail as to the provision of legal advice to survivors of sexual abuse.
Proposed section 37(1)(g) of the bill requires that a written offer of redress
to an eligible person 'gives information about the opportunity for the person
to access legal services under the scheme for the purposes of obtaining legal
advice about whether to accept the offer'. The provision of legal services
under the scheme is to be determined by legislative instrument.[25] Further information as to the content of the proposed rules relating to the
provision of legal services would assist in determining whether this will serve
as a sufficient safeguard so as to support the proportionality of the measure.[26]
Committee comment
1.41
The preceding analysis raises questions as to whether requiring
persons who are eligible for redress to release and discharge institutions
participating in the scheme from future civil liability for abuse of the person
is a proportionate limitation on the right to an effective remedy.
1.42
The committee therefore seeks the advice of the minister as to
the proportionality of the measure, in particular the content of the proposed
rules relating to the provision of legal services under the scheme.
Information Sharing Provisions
1.43
Proposed section 77 of the bill sets out the circumstances in which the Commonwealth
Redress Scheme Operator[27] (the Operator) may disclose protected information. 'Protected information' is defined
in proposed section 75 of the bill as information about a person obtained by an
officer for the purposes of the scheme that is or was held by the department.
The Operator can disclose such protected information if it was acquired by an
officer in the performance of their duties or in the exercise of their powers
under the bill if the Operator certifies that the disclosure is necessary in
the public interest to do so in a particular case or class of case, and the disclosure
is to such persons and for such purposes as the Operator determines.[28] Disclosure may also be made by the Operator to certain persons set out in the
bill, including the secretary of a department, the chief executive of
Centrelink and the chief executive of Medicare.[29]
Compatibility of the measure with
the right to privacy
1.44
The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and the right to
control the dissemination of information about one's private life.
1.45
The information sharing powers of the Operator in proposed section 77 of
the bill engage and limit the right to privacy by providing for the disclosure
of protected information. As acknowledged in the statement of compatibility,
this protected information may include highly sensitive information about child
sexual abuse the person has experienced.[30]
1.46
The right to privacy may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, the measure must pursue a legitimate objective and be rationally
connected and proportionate to achieving that objective.
1.47
The statement of compatibility acknowledges that the right to privacy is
engaged by the information sharing provisions in the bill, which includes
proposed section 77. However, the statement of compatibility explains any
limitation by the information sharing provisions on the right to privacy is
permissible, as the provisions are 'necessary to achieve the legitimate aims of
assessing eligibility under the Scheme and protecting children from abuse, and
are appropriately limited to ensure that they are a proportionate means to
achieve those aims'.[31]
1.48
The stated objective of protecting children from abuse is a legitimate
objective under international human rights law. Collecting, using and
disclosing this information to relevant bodies so as to prevent abuse and
provide redress is likely to be rationally connected to this objective.
1.49
As to the proportionality of the measure, limitations on the right to
privacy must be no more extensive than what is strictly necessary to achieve
the legitimate objective of the measure. The statement of compatibility
explains the broad rationale for allowing persons to obtain and disclose
protected information for the purposes of the scheme as follows:
To establish eligibility, survivors will be required to
supply the Scheme with personal information including highly sensitive
information about the child sexual abuse they experienced. To progress the
application to assessment, limited survivor and alleged perpetrator details
will be provided, with the survivor’s consent, to the participating
institutions identified in their application. Participating institutions will
be able to use this information in a limited way to facilitate making insurance
claims and to institute internal disciplinary procedures where an alleged
perpetrator or person with knowledge of abuse is still associated with the
institution. Participating institutions will be required to provide the Scheme
with specific information pertaining to survivors and alleged perpetrators,
including survivor and the alleged perpetrator’s involvement with the
institution, any related complaints of abuse made to the institution and
details of any prior payments made to the survivor. This collection and
exchange of information is necessary for the eligibility assessment process and
information under the Scheme will be subject to confidentiality. Outside of
Scheme representatives, only survivors and those they nominate will have access
to records relating to their application. Strict offence provisions will be
put in place to mitigate risks of unlawful access, disclosure, recording, use,
soliciting or offering to supply Scheme information.[32]
1.50
However, the statement of compatibility does not appear to address the
proportionality of the bill insofar as it relates to the Operator's disclosure
powers in proposed section 77. The power in proposed section 77 for the
Operator to disclose information is very broad: the Operator can disclose
protected information to 'such persons and for such purposes as the Operator
determines', provided the Operator considers it necessary in the public
interest to do so.[33] It is not clear from the statement of compatibility whether it is strictly
necessary to include such a broad category of persons to whom disclosure may be
made by the Operator under the Act, and what circumstances will constitute a
'public interest', which raises concerns that these information sharing
provisions may not be sufficiently circumscribed.
1.51
Another relevant factor in assessing proportionality is whether there
are adequate safeguards in place to protect the right to privacy. It is noted
that there are penalties in place for persons who engage in unauthorised
recording, disclosure or use of protected information.[34] However, the powers of the Operator to disclose information in the public
interest in proposed section 77 do not appear to be accompanied by safeguards
present in other information sharing provisions in the bill, such as a
requirement that the Operator consider the impact disclosure may have on a
person to whom the information relates. By way of contrast, it is noted
that there is a separate provision in section 78 of the bill addressing
disclosure of protected information to certain agencies (such as the Australian
Federal Police or state and territory police forces) for the purposes of law
enforcement or child protection, where there is a safeguard in place that
requires the Operator to have regard to the impact the disclosure might have on
the person,[35] as well as a requirement that the Operator is satisfied that disclosure of the
information is reasonably necessary for the enforcement of the criminal law or
for the purposes of child protection.[36] Further, disclosure for other purposes such as for the purpose of the
participating institution facilitating a claim under an insurance policy must
only occur if there has been consideration to the impact that disclosure might
have on the person who has applied for redress.[37] It is not clear from the statement of compatibility why such safeguards are
available in relation to some information sharing provisions in the bill, but
not in relation to the Operator's disclosure powers in proposed section 77.
Committee comment
1.52
The preceding analysis raises questions as to whether the
compatibility of the proposed disclosure powers of the Operator in proposed
section 77 of the bill is a proportionate limitation on the right to privacy.
1.53
The committee therefore seeks the advice of the minister as to
whether the limitation on the right to privacy is proportionate to the stated
objective of the measure (including whether there are adequate safeguards in
place in relation to disclosure by the Operator of protected information).
Absence of external merits review and removal of judicial review
1.54
The bill establishes a system of internal review of determinations made
under the scheme.[38] No provision is provided for in the bill for determinations to be able to be
subject to external merits review. Pursuant to the internal review procedure, a
person may apply to the Operator to review a determination made in relation to
redress and the Operator must cause that determination to be reviewed by an
independent decision-maker to whom the Operator's power under this section is
delegated, and who was not involved in the making of the determination.[39] A person reviewing the original determination must reconsider the determination
and either affirm, vary, or set aside the determination and make a new
determination.[40]
When reviewing the original determination, the person may only have regard to
the information and documents that were available to the person who made the
original determination.[41]
1.55
The Commonwealth Redress Scheme for Institutional Child Sexual Abuse
(Consequential Amendments) Bill 2017 (the consequential amendments bill)
exempts decisions made under the scheme from judicial review under the Administrative
Decisions (Judicial Review) Act 1977 (ADJR Act).[42]
Compatibility of the measure with
the right to a fair hearing
1.56
Article 14(1) of the ICCPR requires that in the determination of a
person's rights and obligations in a suit at law, everyone shall be entitled to
a fair and public hearing by a competent, independent and impartial tribunal
established by law. A determination of a person's entitlement to redress as a
result of sexual abuse, and a finding of responsibility on the part of
institutions for such abuse, involves the determination of rights and
obligations and therefore is likely to constitute a suit at law. [43]
1.57
The absence of external merits review and the removal of a form of
judicial review may engage and limit the right to a fair hearing, as it limits
survivors' opportunities to have their rights and obligations determined by an
independent and impartial tribunal. However, the statement of compatibility
does not acknowledge that the right to a fair hearing is engaged by the
measures.
1.58
A limitation on the right to a fair hearing may be permissible if it
pursues a legitimate objective, is rationally connected to that legitimate
objective and is a proportionate means of achieving that objective.
1.59
The explanatory memorandum to the consequential amendments bill explains
the rationale for limiting the scheme to internal review and the removal of
judicial review. In particular, the explanatory memorandum explains that
judicial review may cause undue administrative delays under the scheme, and the
internal review mechanism is intended to prevent re-traumatising victims
through having to re-tell their story of past institutional child sexual
abuse.
1.60
Preventing re-traumatisation of victims of sexual abuse is likely to be
a legitimate objective under international human rights law. However, in
circumstances where the victim themselves may choose to pursue external review
(by way of merits review or judicial review) if they are unsatisfied with the
decision, it is not clear based on the information provided that preventing
victims from pursuing external review if dissatisfied with the internal
decision would be an effective means of achieving this objective.
1.61
Further, the explanatory memorandum explains that, when internally
reviewing the decision, the Operator or independent decision-makers are not
permitted to have been involved in making the original decision under review.
However, it is unclear whether the internal review mechanism provides greater
or lesser scope for independent and impartial review than that which would be
provided by the (external) Administrative Appeals Tribunal. It is not clear,
therefore, whether the internal review mechanism is an effective substitute for
external review.
Committee comment
1.62
The preceding analysis indicates that the right to a fair hearing
may be engaged by the absence of external merits review of determinations made
under the scheme, and the removal of judicial review.
1.63
The committee therefore seeks the advice of the minister as to
the compatibility of the measure with the right to a fair hearing, including:
- whether the absence of external merits review and removal of
judicial review pursues a legitimate objective;
- whether the measures are rationally connected to (that is,
effective to achieve) that objective;
- whether the measures are a proportionate means of achieving the
stated objective.
Corporations (Aboriginal and Torres Strait Islander) Regulations 2017
[F2017L01311]
Purpose |
Provides for matters
necessary for the effective operation and administration of the Corporations
(Aboriginal and Torres Strait Islander) Act 2006 |
Portfolio |
Prime Minister and Cabinet |
Authorising legislation |
Corporations (Aboriginal
and Torres Strait Islander) Act 2006 |
Last day to disallow |
15 sitting days after tabling
(tabled House of Representatives and Senate 16 October 2017). Notice of
motion to disallow currently must be given by 7 December 2017 |
Right |
Privacy (see Appendix 2) |
Status |
Seeking additional
information |
Disclosure of certain documents and information to the public by the
Registrar of Aboriginal and Torres Strait Islander Corporations
1.64
Subregulation 55(1) of the Corporations (Aboriginal and Torres Strait
Islander) Regulations 2017 (the regulations) provides that, for the
purposes of paragraph 658-1(1)(k) of the Corporations (Aboriginal and Torres
Strait Islander) Act 2006 (CATSI Act), the Registrar of Aboriginal and
Torres Strait Islander Corporations (registrar) has the function of making
certain documents, and information in those documents, available to the public.
Subregulation 55(3) provides that these documents may include documents
containing personal information within the meaning given by subsection 6(1) of
the Privacy Act 1988 (Privacy Act).[44]
Compatibility of the measure with
the right to privacy
1.65
The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and the right to
control the dissemination of information about one's private life.
1.66
The statement of compatibility states that the regulations are operative
in nature and therefore do not raise any human rights issues. However, in
allowing for a person's personal information to be made available to the
public, the measure may engage and limit the right to privacy.
1.67
The right to privacy may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, the measure must pursue a legitimate objective and be rationally
connected and proportionate to achieving that objective.
1.68
In the absence of further information in the explanatory statement or
statement of compatibility, it is not possible to determine whether the power
given to the registrar to make information (including personal information)
available to the public is in pursuit of a legitimate objective and is
rationally connected to that objective.
1.69
Questions also arise as to whether the measure is proportionate. In
order to be proportionate, limitations on the right to privacy must be no more
extensive than what is strictly necessary to achieve the legitimate objective
of the measure, and be accompanied by adequate safeguards to protect the right
to privacy. It is noted that the Registrar may make documents available to the
public that (relevantly) the registrar 'considers appropriate to make available
to the public'.[45]
It is not clear from the explanatory statement or statement of compatibility as
to how, and under what circumstances, the registrar may consider it appropriate
that documents (which may contain personal information) should be disclosed to
the public. For example, it is not clear whether the registrar's state of
satisfaction is subject to any objective criteria, such as a requirement that
the registrar's consideration of appropriateness is reasonable.
Committee comment
1.70
The preceding analysis raises questions as to whether the power
of the registrar to make documents (which may include personal information)
available to the public is compatible with the right to privacy.
1.71
The committee therefore seeks the advice of the minister as to:
- whether the measure pursues a legitimate objective;
- whether the measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the measure is a proportionate means of achieving the
objective (including whether any limitation on the right to privacy is the
least rights-restrictive measure available, and whether there are adequate
safeguards in place to protect the right to privacy).
Advice only
1.72
The committee draws the following bills and instruments to the attention
of the relevant minister or legislation proponent on an advice only basis. The
committee does not require a response to these comments.
Marriage Amendment (Definition and Religious Freedoms) Bill 2017
Purpose |
Proposes to amend the Marriage
Act 1961 to define marriage as a union of two people |
Sponsor |
Senator Dean Smith |
Introduced |
Senate, 15 November 2017 |
Rights |
Equality and
non-discrimination; freedom of religion; respect for the family (see Appendix
2) |
Status |
Advice only |
Background
1.73
On a number of occasions the committee has previously considered private
member and senator's bills that have sought to amend the Marriage Act 1961 (Marriage Act) to permit same sex marriage.[46] To the extent relevant, the committee's previous reports and human rights
assessments are referred to below.
Changes to the Marriage Act to permit same-sex marriage
1.74
Under the Marriage Act 'marriage' is defined as 'the union of a man and
a woman to the exclusion of all others, voluntarily entered into for life.'[47] This current definition of marriage means only marriages between a man and a
woman can be solemnised in Australia or recognised from overseas.[48]
1.75
The Marriage Amendment (Definition and Religious Freedoms) Bill 2017
(the bill) seeks to make a number of changes to the Marriage Act in order to
permit same-sex couples and people who are legally recognised as neither male
nor female to marry.[49] Proposed section 5(1) would amend the definition of marriage to 'the union of
two people to the exclusion of all others'.[50] This definition of marriage would apply across the Marriage Act so that in
addition to allowing two people of any gender to marry it also provides for the
recognition of same-sex marriages which have been solemnised overseas.[51]
Compatibility of the measure with
the right to equality and non-discrimination
1.76
The statement of compatibility explains that by allowing same-sex
marriage, the right to equality and non-discrimination is engaged and promoted:
By defining marriage as the union of '2 people' rather than 'a
man and a woman', the Bill allows couples to marry regardless of their sex or
gender. The Bill also allows for recognition of foreign marriages between two
adults under Australian law, regardless of sex or gender. The Bill provides all
people in Australia with equal rights with respect to marriage, removing
discrimination on the basis of sexual orientation, gender identity, or intersex
status.[52]
1.77
Under article 26 of the International Covenant on Civil and Political
Rights (ICCPR), state parties are required to prohibit any discrimination and
guarantee to all people equal and effective protection against discrimination
on any ground. Article 26 lists a number of grounds as examples as to when
discrimination is prohibited, which includes sex and 'any other status'. While
sexual orientation is not specifically listed as a protected ground, the United
Nations Human Rights Committee (the UNHRC) has specifically recognised that the
treaty includes an obligation to prevent discrimination on the basis of sexual
orientation.[53]
1.78
By restricting marriage to between a man and a woman, the current
Marriage Act directly discriminates against same-sex couples on the basis of
sexual orientation. The bill proposes to remove this restriction.
1.79
The committee's previous reports noted that in Joslin v New
Zealand (2002) the UNHRC determined that the right to marry in article 23
of the ICCPR is confined to a right of opposite-sex couples to marry. As set
out below, international jurisprudence has evolved since that time.[54] The statement of compatibility explains, in relation to Joslin, that
while the right to marry under article 23 does not oblige states to legislate
to allow same-sex couples to marry, 'it is clear that there are no legal
impediments to Australia taking this step.'[55] Moreover, international jurisprudence has
recognised that same-sex couples are equally as capable as opposite-sex couples
of entering into stable, committed relationships and are in need of legal
recognition and protection of their relationship.[56]
1.80
Since Joslin v New Zealand was decided in 2002, there has
been a significant evolution of the legal treatment of
same-sex couples internationally. The ICCPR is a living document and is
to be interpreted in accordance with contemporary understanding. The UNHRC has
emphasised that the ICCPR should be 'applied in context and in the light of
present‑day conditions'.[57] Since the committee last reported on proposed amendments to permit same sex
couples to marry, in November 2016 the UNHRC has provided further views on the
Australian Marriage Act, same-sex marriage and issues of discrimination.[58] Accordingly, it is arguable that the definition of marriage under the ICCPR is
in the process of evolving to include same-sex marriage.
1.81
Additionally, while international jurisprudence
has not recognised a right to same-sex marriage under article 23 of the ICCPR,
such that state parties are required to remove any prohibition on same-sex
marriage, it is clear that a law which prohibits marriage on the grounds of
sexual orientation engages the right to equality and non‑discrimination.
By removing the current prohibition on same-sex couples marrying, the bill promotes the right to equality and non‑discrimination.
In this respect, the UNHRC in its recent Concluding Observations called on
Australia to amend the Marriage Act:
[The UNHRC] is concerned about the
explicit ban on same-sex marriage in the Marriage Act 1961 (Cth) that results
in discriminatory treatment of same-sex couples, including in matters related
to divorce of couples who married overseas...
...The State party should revise its
laws, including the Marriage Act, to ensure, irrespective of the results of the
Australian Marriage Law Postal Survey, that all its laws and policies afford
equal protection to LGBTI [lesbian, gay, bisexual, trans and/or intersex]
persons, couples and families, taking also into account the Committee’s Views
in communications No. 2172/2012, G v. Australia, and 2216/2012, C. v Australia.[59]
1.82
This statement and the decisions referred to indicate that current
Australian law is incompatible with the right to equality and
non-discrimination. By extending the definition of marriage to include a union
between two persons, the measure addresses key aspects of the UNHRC's
determination that Australia should revise its laws, as the effect of amending
the definition of marriage would be to permit same-sex and gender diverse
couples to marry as well as recognising foreign same-sex marriages. As noted in
the statement of compatibility, by enabling the recognition of foreign same-sex
marriages, the rights and responsibilities pertaining to the dissolution of
those foreign marriages will also apply equally to all lawful marriages.[60]
1.83
Given that discrimination on the grounds of sexual orientation is
recognised as a ground against which state parties are required to guarantee
all persons equal and effective protection, the committee has previously
concluded that extending the definition of marriage to include a union between
two people (rather than only for opposite-sex couples) promotes the right to
equality and non-discrimination.
Committee comment
1.84
The committee notes that the UN Committee on Human Rights has
stated that Australia should revise its laws including the Marriage Act to
ensure equal protection of LGBTI persons, couples and families.
1.85
The committee has previously concluded that expanding the definition of marriage to include same-sex couples
promotes the right to equality and non‑discrimination.
1.86
Noting these previous conclusions
regarding the right to equality and non‑discrimination, the committee
draws the human rights implications of this measure to the attention of the
parliament.
Compatibility of the measure with
the right to respect for the family
1.87
To the extent that the bill would expand the protections afforded to
married couples under Australian domestic law to same-sex couples, they may
engage the right to respect for the family. The statement of compatibility
states that by 'providing the ability to lawfully marry to all couples, the
Bill more accurately recognises the diversity of relationships and families in
the Australian community, and ensures their equal status under Commonwealth
law.'[61]
1.88
As noted in the committee's previous reports, the right to respect for
the family under international human rights law applies to a diverse range of
family structures, including same-sex couples, and the bill is consistent with
this right. For example, recognising the diversity of family structures
worldwide, the UNHRC has adopted a broad conception of what constitutes a
family, noting that families 'may differ in some respects from State to State...
and it is therefore not possible to give the concept a standard definition'.[62] Consistent with this approach, the European Court of Human Rights noted in 2010
that same-sex couples without children fall within the notion of family, 'just
as the relationship of a different-sex couple in the same situation would'.[63]
1.89
Similarly, the UN Committee on the Rights of the Child noted in 1994
that the concept of family includes diverse family structures 'arising from
various cultural patterns and emerging familial relationships', and stated:
...[the Convention on the Rights of the Child (CRC)] is
relevant to 'the extended family and the community and applies in situations of
nuclear family, separated parents, single-parent family, common-law family and
adoptive family'.[64]
1.90
The committee's previous reports considered that this statement on
family diversity, along with the UNHRC's inclusion of sexual orientation as a
prohibited ground of discrimination against a child and a child's parents, is
consistent with the view that the CRC extends protection of the family to
same-sex families.[65] It further considered that the UNHRC has recognised that 'the human rights of
children cannot be realized independently from the human rights of their
parents, or in isolation from society at large'.[66] Moreover, as noted above, the UNHRC's recent Concluding Observation called on
Australia to:
revise its laws, including the Marriage Act, to ensure,
irrespective of the results of the Australian Marriage Law Postal Survey, that
all its laws and policies afford equal protection to LGBTI persons, couples
and families (emphasis added).[67]
1.91
Accordingly, amending the definition of marriage to a union of two
people would promote the right to the protection of the family as recognised as
a matter of international human rights law.
Committee comment
1.92
The committee notes that the UN Committee on Human Rights has
stated that Australia should revise its laws including the Marriage Act to
ensure equal protection of LGBTI persons, couples and families.
1.93
The previous human rights assessments concluded that expanding the definition of marriage promotes the right
to respect for the family as recognised as a matter of international human rights
law.
1.94
Noting these previous conclusions regarding the right to respect
for the family, the committee draws the human rights implications of this
measure to the attention of the parliament.
Compatibility of the measure with
rights of the child
1.95
As the bill relates strictly to marriage it does not directly engage the
rights of the child.[68] As noted in the statement of compatibility the bill 'retains the existing
consent, marriageable age and prohibited relationship requirements under the
Marriage Act.'[69] The regulation of marriage provides legal recognition for a relationship
between two people, which in and of itself has no impact on whether the persons
in that relationship have children—there are many married couples who do not
have children and many unmarried couples that do have children.
1.96
Further, the bills would not amend any laws regulating adoption,
surrogacy or in vitro fertilisation (IVF), including existing laws that allow
same-sex couples to have children. Previous reports considered that such laws
therefore fall outside the scope of the committee's examination of the bill for
compatibility with human rights.
1.97
In addition, the committee's previous reports noted that whether or not
a child's parents or guardians are married has no legal effect on the child. In
compliance with the requirements of international human rights law, there are
no laws in Australia that discriminate against someone on the basis of their
parents' marital status.[70] Therefore, amending the definition of marriage in the Marriage Act will not
affect the legal status of the children of married or unmarried couples.
1.98
The committee's previous reports noted that the CRC refers to 'parents'
and 'legal guardians' interchangeably and refers to 'family' without
referencing mothers or fathers.[71] The preamble notes that a child 'should grow up in a family environment, in an
atmosphere of happiness, love and understanding'.[72] There is no reference to marriage in the CRC. Provisions in the CRC relating to
a child's right to know its parents and a right to remain with its parents,[73] are not engaged by the bill, which is limited to the legal recognition of
relationships.
1.99
There is an obligation in the CRC to take into account the best interests
of the child 'in all actions concerning children', and this legal duty applies
to all decisions and actions that directly or indirectly affect children. The
UN Committee on the Rights of the Child has said that this obligation applies
to 'measures that have an effect on an individual child, children as a group or
children in general, even if they are not the direct targets of the measure'.[74] This applies to the legislature in enacting or maintaining existing laws, and
the UN Committee on the Rights of the Child has given the following guidance as
to when a child's interests may be affected:
Indeed, all actions taken by a State affect children in one
way or another. This does not mean that every action taken by the State needs
to incorporate a full and formal process of assessing and determining the best
interests of the child. However, where a decision will have a major impact on a
child or children, a greater level of protection and detailed procedures to
consider their best interests is appropriate.[75]
1.100
In this regard, the committee's previous reports considered that it is
not certain whether the legal recognition of a parent's relationship would have
a major impact on a child. If it were considered to have a major impact on a
child, then it is necessary to assess whether legislating to allow same‑sex
marriage would promote or limit the rights of the child to have his or her best
interests assessed and taken into account as a primary consideration.
1.101
There is some evidence to suggest that legal recognition of same-sex
couples would promote the best interests of children of those couples. The
previous human rights assessment identified some evidence suggesting that
children living with cohabiting, but unmarried, parents may do less well than
those with married parents.[76] That analysis also noted that there is also some evidence that children of
same-sex parents 'felt more secure and protected' when their parents were
married.[77]
1.102
Further, to the extent that any existing laws provide greater protection
for married couples compared to non-married couples, the previous human rights
assessment of the measures considered that extending the protection of marriage
to same-sex couples may indirectly promote the best interests of the child.
Committee comment
1.103
The committee notes that the previous human rights assessments of
the measures concluded that, as
they are limited to the legal recognition of a relationship between two people,
and do not regulate procreation or adoption, the rights of the child are not
engaged by the bills.
1.104
The committee further notes that the previous human rights
assessments concluded that, to the
extent that the obligation to consider the best interests of the child is
engaged, the measures do not limit, and may promote, the obligation to consider
the best interests of the child.
Solemnising marriages - exceptions for ministers of religion and religious
marriage celebrants
1.105
The Marriage Act currently grants a minister of religion[78] of a recognised denomination discretion as to whether or not to solemnise a
marriage[79] and this bill proposes to continue this approach. Under the bill, provided that
a minister of religion is authorised by their religion to solemnise marriages,
they will continue to be able to refuse to solemnise marriages on religious
grounds where this is in accordance with their religious doctrines, tenets and
beliefs; where necessary to avoid injury to the religious susceptibilities of
adherents of that religion; or where the minister's religious beliefs do not
allow the minister to solemnise the marriage.[80]
1.106
The bill would also extend this discretion to existing marriage
celebrants if they elect to register as religious marriage celebrants.[81] New marriage celebrants registered after the bill commences will not be able to
be identified as a religious marriage celebrant unless they are a minister of
religion.[82]
1.107
In relation to solemnising marriages of defence force personnel
overseas, the bill would provide similar discretion to chaplains, who are
ministers of religion, to refuse to solemnise marriages under the Marriage Act.[83] However, the bill also provides that the Chief of Defence force may authorise
an officer to be an authorised celebrant to solemnise marriages of defence
force members overseas.[84]
1.108
The bill would amend the Sex Discrimination Act 1984 (Sex
Discrimination Act) to give effect to these religious exemptions under the
bill. However, civil marriage celebrants or authorised celebrants (who are not
ministers of religion, religious marriage celebrants or chaplains) would be
required to perform the function of solemnising marriages (including marriages
of same-sex couples) regardless of their individual beliefs.[85]
Compatibility of the measure with the right to freedom of religion and
conscience
1.109
Article 18 of the ICCPR protects the rights of all persons to think
freely, and to entertain ideas and hold positions based on conscientious or
religious or other beliefs. Subject to certain limitations, persons also have
the right to demonstrate or manifest religious or other beliefs, by way of worship,
observance, practice and teaching. As set out above, considerable scope is
provided under the bill to permit ministers of religion, chaplains and current
marriage celebrants who elect to be registered as religious celebrants to
decline to perform same-sex marriages on the basis of their religious beliefs.
This individual discretion exists notwithstanding the particular view of
same-sex marriage that a denomination of religion has adopted.
1.110
In contrast to religious celebrants, under the Marriage Act registered
civil celebrants are required to abide by existing anti-discrimination laws.
The amendments in the bill would mean that civil marriage celebrants (who are
not ministers of religion, chaplains or religious celebrants) would be
prohibited from refusing to solemnise same-sex marriages on the ground that the
couple are of the same sex. These provisions will also apply to military
officers who are authorised to perform marriages overseas (except chaplains).[86] It would apply even if the civil celebrant or authorised celebrant (who is not
a minister of religion or religious celebrant) had a religious or personal
objection to the marriage of same-sex couples. New civil marriage celebrants
will be unable to register as religious marriage celebrants unless they are a
minister of religion. It is noted that civil marriage celebrants are not
necessarily secular and may hold strong religious or personal views in relation
to solemnising marriages.[87]
1.111
The proposed measure therefore engages and limits the right to freedom
of religion and belief under article 18 of the ICCPR. Article 18 distinguishes
the right to freedom of thought, conscience, religion or belief, which is
protected unconditionally, from the freedom to manifest religion or
conscientious beliefs. Article 18(3) of the
ICCPR permits limitations on the freedom to manifest one's religion,
conscientious belief or conscientious objection that are necessary to protect
public safety, order, health or morals, or the fundamental rights and freedoms
of others.[88] The right can be permissibly limited as long as it can be demonstrated that the
limitation pursues a legitimate objective, is rationally connected to (that is,
effective to achieve) that objective, and a proportionate means of achieving
that objective.
1.112
The statement of compatibility explains that the measure pursues a
legitimate objective by extending the operation of the Marriage Act to same-sex
couples and ensuring that the operation of the Marriage Act is
non-discriminatory. The statement of compatibility provides a range of evidence
that indicates that addressing issues of discrimination on the grounds of
sexual orientation is a pressing and substantial concern.[89] Accordingly, consistent with the committee's previous reports, the measure
pursues a legitimate objective for the purposes of international human rights
law of promoting equality and non-discrimination. The committee's previous
reports also considered that the measure is rationally connected to this
objective.[90] That is, providing that civil celebrants cannot decline to solemnise a marriage
on the basis of sexual orientation, would appear to be effective to achieve the
objective of promoting non-discrimination.
1.113
The UNHRC has also concluded that the
right to exercise one's freedom of
religion may be limited to protect equality and non-discrimination.[91] As set out above, the right to
equality and non-discrimination has been extended to sexual orientation. The
committee's previous reports considered that it is therefore permissible to
limit the right to exercise one's freedom
of religion or belief in order to protect the equal and non‑discriminatory
treatment of individuals on the grounds of sexual orientation, provided that
limitation is proportionate.
1.114
The question is therefore whether, by providing an exemption from anti‑discrimination
laws for ministers of religion, chaplains and religious celebrants and not for
civil marriage celebrants on an ongoing basis, the measure is proportionate to
the objective of promoting equality and non‑discrimination.
1.115
In assessing the proportionality of the limitation, it is relevant that
civil celebrants, acting under the Marriage Act, are performing the role of the
state in solemnising marriages.[92] The statement of compatibility argues in this respect that:
...the performance of marriage ceremonies by marriage
celebrants on behalf of the state is not sufficiently closely connected to the
observance, practice, worship or teaching of religion or belief in order to
justify the limitation on the right to non-discrimination. A personal moral
objection to same-sex marriage is also not a sufficient basis to permit
discrimination in marriage ceremonies or marriage related services.[93]
1.116
There
is support for this view in international jurisprudence. In Eweida and Ors v
United Kingdom,[94] the European
Court of Human Rights dismissed Ms Ladele's complaint that she was
dismissed by a UK local authority from her job as a register of births, death
and marriages because she refused on religious grounds to have civil
partnership duties of same-sex couples assigned to her. The court upheld the
finding of the UK courts that the right to freedom of religion (under article 9
of the European Human Rights Convention) did not require that Ms Ladele's
desire to have her religious views respected should 'override [the local
authority's] concern to ensure that all its registrars manifest equal respect
for the homosexual community as for the heterosexual community'.[95]
1.117
The statement of compatibility further explains that the intention
behind introducing the category of a military officer who is an authorised
celebrant is to ensure that members of the Australian defence force overseas
will have a non-religious option to marry available to them.[96] Noting that military chaplains would be able to refuse to perform marriages on
religious grounds, providing that officers would not be able to refuse to
solemnise marriages because of sexual orientation or that the couple is of the
same sex would appear to be a least rights restrictive approach. There could
otherwise be a risk that members of the Defence Force overseas who are in a
same sex-couple relationship would not be able to access the services of a
marriage celebrant to solemnise a marriage on an equal and non-discriminatory
basis.
1.118
The measures more generally appear to constitute a proportionate
limitation on the right to freedom of religion because they maintain the
exception for ministers of religion as well as introducing exceptions for
current marriage celebrants who register as religious marriage celebrants. A
concern has been raised that currently there are some civil marriage celebrants
who solemnise marriages on a religious basis, however, because their
organisation is not a 'recognised denomination' or because they are not
recognised by a religious body as being authorised to solemnise marriages, they
do not qualify as ministers of religion.
1.119
By allowing existing celebrants to register as religious celebrants
without requiring that they qualify as ministers of religion the bill provides
substantial protection for the freedom of religion or belief of individuals who
may have made a decision to become civil celebrants on the basis that the
current law only allows opposite-sex couples to marry. Such arrangements serve
as a significant protection for these individuals in relation to their freedom
of religion or belief, as they provide the option to all existing civil
celebrants to be able to decline to solemnise marriages on the basis of their
religious beliefs. The scope afforded to freedom of religion or belief is
greater under this bill than some of the previous bills the committee has
considered which sought to allow same-sex couples to marry.[97]
1.120
The absence of an exception from anti-discrimination laws for new civil
celebrants and existing civil celebrants (who chose not to register as
religious celebrants) that officiate a civil marriage ceremony generally aligns
with the existing distinction in the position of religious and civil marriage
celebrants. For those who solemnise marriages on a religious basis, the
exemption from anti‑discrimination law applies if they satisfy the
definition of 'ministers of religion' in section 5 of the Marriage Act, which
is broadly drafted to cover a person who has authority to solemnise marriages
in accordance with the rites or customs of a religious body or organisation.[98] By contrast,
civil celebrants have authority conferred under the Marriage Act as they are
performing the secular role of the state, not of any religious group. Accordingly, consistent with the committee's previous
reports, not granting new civil celebrants the discretion to refuse to solemnise
same-sex marriages on the ground that the couple are of the same sex, regardless of their personal religious views, is
very likely to be a proportionate limitation on the right to freedom of
religion or belief as a matter of international human rights law to ensure the
right of same-sex couples to equality and non-discrimination.
Committee comment
1.121
Under the Marriage Act registered civil celebrants are required
to abide by existing anti-discrimination laws.
1.122
Under the bill, ministers of religion, chaplains and existing
civil celebrants who register as religious celebrants would be able to decline
to marry a same-sex couple on religious grounds.
1.123
However, existing civil celebrants who do not opt to be
registered as religious celebrants; new civil celebrants; and other authorised
marriage celebrants (who are not ministers of religion or chaplains) would be
prohibited from refusing to solemnise same-sex marriages on the ground that the
couple are of the same sex.
1.124
Civil marriage celebrants may hold strong personal religious
beliefs and the committee notes the discussion of these celebrants who are not
ministers of religion in the House of Representatives Standing Committee on
Social Policy and Legal Affairs, Advisory Report: Marriage Equality
Amendment Bill 2012 and Marriage Amendment Bill 2012 and the Senate Select
Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage)
Bill, Report on the Commonwealth Government's Exposure Draft of the Marriage
Amendment (Same-Sex Marriage) Bill.[99]
1.125
Prohibiting new civil celebrants from refusing to solemnise
same-sex marriages on the ground that the couple are of the same sex may engage
and limit the right to freedom of religion under article 18 of the ICCPR, insofar
as a civil celebrant has a religious objection to the marriage of same-sex
couples.
1.126
Consistent with the committee's previous conclusions, the
preceding analysis indicates that in the circumstances this limitation is
proportionate and permissible under international human rights law.
1.127
However, it is also noted that there is some scope for
Australia to determine exactly how to formulate the appropriate balance between
the right to equality and non-discrimination, on the one hand, and the
protection of the right to freedom of religion or belief, on the other hand.
1.128
Noting the preceding human rights assessment, the committee draws
the human rights implications of this measure to the attention of the
parliament.
Bodies established for religious purposes may refuse to provide facilities,
goods or services
1.129
The Sex Discrimination Act provides that it is unlawful to discriminate
against a person in the provision of goods, services or facilities, on the
grounds of sex, sexual orientation, gender identity, intersex status, marital
or relationship status, pregnancy or potential pregnancy, or breastfeeding.[100] However, section 37 the Sex Discrimination Act provides an exemption to a body
established for religious purposes, for any other act or practice, being an act
or practice that conforms to the doctrines, tenets or beliefs of that religion
or is necessary to avoid injury to the religious susceptibilities of adherents
of that religion.
1.130
Proposed new section 47B of the Marriage Act would similarly provide
that a body established for religious purposes will be able to refuse to
provide facilities, goods or services provided on a commercial or
non-commercial basis provided that:
- the facility, goods or service to be provided relates to the
solemnisation of a marriage; and
- the refusal conforms to the doctrines, tenets or beliefs, or is
necessary to avoid injury to the susceptibilities of adherents of that
religion.[101]
Compatibility of the measure with
the right to equality and non-discrimination and the right to freedom of
religion
1.131
Permitting bodies established for religious purposes to refuse to
provide facilities, goods or services related to the solemnisation of a marriage
on religious grounds, engages the right to equality and non-discrimination.
This is because it would permit discrimination in access to these facilities,
goods and services. More specifically, it would allow a religious body to
refuse to provide goods, services or facilities for the marriage of a same-sex
couple on religious grounds. The measure reflects aspects of the current
exemption from compliance with substantive protections under
anti-discrimination law for bodies established for religious purposes.[102]
1.132
Differential treatment will not constitute unlawful discrimination if
the differential treatment is based on reasonable and objective criteria such
that it serves a legitimate objective, is rationally connected (that is,
effective to achieve) and proportionate to, that objective.[103]
1.133
In this respect, the measure appears to pursue the objective of
promoting the right to freedom of religion. Permitting religious bodies to
refuse to provide facilities, goods and services related to the solemnisation
of a marriage on religious grounds would appear to be rationally connected to
this objective. While the statement of compatibility does not directly address
whether the measure is proportionate in respect of the right to equality and
non-discrimination, it does indicate that the measure is sufficiently
circumscribed with respect to promoting the right to freedom of religion.[104] The statement of compatibility explains that the scope of exemptions from
anti-discrimination laws under the bill for religious bodies are consistent
with existing definitions:
The Bill uses the same definition as the Sex Discrimination
Act to ensure that bodies established for religious purposes can lawfully
refuse to provide facilities, goods or services for a marriage on religious grounds.
In contrast, service providers and commercial businesses that are not
established for religious purposes cannot lawfully refuse to provide
facilities, goods or services to a couple where this would amount to unlawful
discrimination.[105]
1.134
Additionally, as set out above, significant exemptions are already
provided from existing anti-discrimination laws for bodies established for a
religious purpose on the basis of religion.[106] The statement of compatibility further explains why the exemption is restricted
to religious bodies rather than applying more broadly:
It is reasonable that this exemption is restricted to
religious organisations rather than commercial businesses or individuals,
because the hiring of facilities and delivery of goods and services is connected
to marriage but one step removed from the solemnisation of the marriage itself.[107]
1.135
Restricting the exemption to religious bodies is a less extensive
limitation on the right to non-discrimination than if this exemption were to
apply more broadly to commercial businesses or individuals. The measure would
appear to be broadly consistent with current Australian anti-discrimination
law, although this is not determinative of the question of proportionality. The
scope of exceptions to anti‑discrimination laws has never been subject to
a foundational review by the committee for human rights compatibility.
Committee comment
1.136
Existing anti-discrimination laws provide exemptions to bodies
established for religious purposes where an act or practice conforms to the doctrines,
tenets or beliefs of that religion or is necessary to avoid injury to the
religious susceptibilities of adherents of that religion.
1.137
Proposed section 47B of the Marriage Act would provide that a
body established for religious purposes will be able to refuse to provide
facilities, goods or services related to the solemnisation of a marriage where
the refusal conforms to the doctrines, tenets or beliefs, or is necessary to
avoid injury to the susceptibilities of adherents of that religion.
1.138
The preceding analysis indicates that this measure promotes the
right to freedom of religion. The committee draws the human rights implications
of this measure to the attention of the parliament.
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