Provisions of the Exposure Draft
2.1
The Australian Constitution empowers the Commonwealth to legislate with
respect to marriage (section 51(xxi)). In 2013, the High Court of Australia
held that this constitutional power encompasses same-sex marriage and that legislation
introducing same-sex marriage in Australia is now a matter for the federal
Parliament.[1]
2.2
The Marriage Act 1961 (Cth) (Marriage Act) and the Marriage
Regulations 1963 (Cth) set out the marriage law, including a definition of 'marriage'
(subsection 5(1)) and provisions about who may solemnise a marriage
ceremony (Part IV). The Exposure Draft proposes key amendments to
these provisions, some of which are discussed in this chapter in the following
order:
-
the definition of 'marriage';
-
exemption for ministers of religion;
-
exemption for marriage celebrants; and
-
exemption for a religious body or organisation.
Definition of 'marriage'
2.3
Item 1 in Part 1 of Schedule 1 proposes to amend the definition of
'marriage' in subsection 5(1) of the Marriage Act, to mean 'the union of 2
people to the exclusion of all others, voluntarily entered into for life'.
2.4
Some participants in the inquiry did not support the proposed amendment.[2]
Bishop Peter Comensoli explained that the Catholic Church views marriage as a
unique relationship between a man and a woman:
For Catholics and for many other Australians, marriage is a
unique and exclusive partnership of life and love between a man and woman open
to life. Marriage is also a fundamental human institution that helps to unify
spouses, to support the raising of children and to provide the basic cell of
human society.[3]
2.5
A representative from Marriage Alliance agreed that there are many
Australians who hold this traditional view of marriage:
We exist to voice the opinion of the silent majority of
Australians who respect same-sex attracted people but do not want to change the
current definition of marriage.[4]
2.6
Bishop Michael Stead noted that 'church doctrine is not established by
opinion polls' and emphasised that such doctrine is well established and
supported, for example, within the Anglican Church:
...doctrine is declared in the official pronouncements of the
bodies of the church. If I can speak for the Anglican Church, for a moment, the
Anglican Church at a national level—it is representing all of us at its General
Synod—made declarations in 2004, 2007 and 2010 at its General Synod affirming
that marriage is intrinsically between a man and a woman. Our Sydney
diocese has made similar declarations over a number of years, most recently in
2013, 2014, 2015 and 2016.[5]
2.7
Other submitters and witnesses did support the proposed amendment.
For example, representatives from Australians for Equality explained that
support for marriage equality has continued to grow in Australia:
Support for marriage equality in Australia remains at
all-time high levels. Poll after poll shows support continues to sit around
two-thirds of Australians, a level where it has sat for more than 15 polls
since 2013. Support sits consistently across the Australian population. A
majority of voters in every state and territory support this important reform...Western
Australia and Queensland sit, and have consistently sat, among our most
supportive states.[6]
2.8
The committee heard that the views of people with religious beliefs also
support the proposed amendment, and wanted the committee to be aware that there
are diverse views among Christians and others of faith around the issue of
marriage. For example, Australian Catholics for Equality said:
...we want the Senate to be fully aware that the majority of
Catholic Christians in Australia support marriage equality. We do so because of
our religious faith and teachings of social justice, which promote the dignity
and equality of all people...Catholic family members especially believe that
this will strengthen their families.[7]
2.9
The Federation of Australian Buddhist Councils, representing the largest
minority religion in Australia (over 500 000 persons) submitted:
In Buddhist traditions, there is no fixed or mandated form of
marriage and from a Buddhist point of view there is no such thing as a single
fixed, natural, or pre-ordained form of marriage. Buddhist texts do not contain
prohibitions on same-sex marriage. Nor do they contain anti-LGBTQ views.[8]
2.10
The Rabbinical Council of Australia and New Zealand (RCANZ) and the
Rabbinical Council of Victoria (RCV) recognised that 'same-sex marriage can be
a deeply emotive issue'. Their submission affirmed a traditional view of
marriage, while acknowledging that this position might appear unsupportive of
LGBTI persons:
RCANZ and RCV support traditional marriage based on the
universal Jewish teaching divinely ordained in our holy Torah and expressed in
the codes of Jewish law that marriage can only be between a man and a woman. At
the same time, RCANZ and RCV reaffirms Judaism's fundamental obligation to respect
and embrace all people irrespective of their sexuality and condemns in the
strongest possible terms words or actions intended to denigrate or hurt others.[9]
2.11
In contrast, the Rabbinic Council of the Union for Progressive Judaism
upheld the equality of all individuals and opposed discrimination against all
individuals, including the LGBTI community:
On this basis, the rabbis of the Rabbinic Council of the
Union for Progressive Judaism and its parent body the Union for Progressive
Judaism...support marriage equality and the rights and privileges therefore
afforded.[10]
2.12
Others who supported the proposed amendment to the definition of
'marriage' stated that the proposal would enable marriage equality.[11]
For example, the President of the Law Council of Australia, Fiona McLeod
SC, said:
The recognition of the marriage of two people regardless of
sex or gender will contribute to the protection of human dignity, the promotion
and attainment of equality and the removal of historical prejudicial
hurdles...It also respects the importance of the institution of marriage and
the desire of many Australians to marry who are prevented from doing so by
terms of the current Marriage Act.[12]
2.13
In its evidence, the Coalition of Celebrant Associations emphasised that
the institution of marriage is important for all couples:
...for couples marriage is a rite of
passage. It is a pivotal and an emotional milestone in a couple's lives. In
getting married, they do want authenticity and a ceremony in their life that
reflects them as a couple and their beliefs.[13]
2.14
The Coalition of Celebrant Associations identified the concept of 'two
adults' as an important feature of marriage, suggesting that perhaps, rather
than '2 people', any new definition of 'marriage' should refer to 'two
adults'. The Vice-Chair, Liz Pforr, considered that this would assist community
understanding of what constitutes marriage in multicultural Australia:
...child and forced marriages are a growing concern in
Australia, so we feel that, as we are becoming more multicultural, the public
are not necessarily aware of our laws and that this is a perfect opportunity
for government to educate the public on the requirements that we have in
Australia.[14]
Consequential amendment
2.15
Some participants suggested that the Exposure Draft should provide for
the recognition of same-sex couples who previously entered into state and
territory‑based civil partnerships (such as civil unions or registered
partnerships). For example, the Australian Human Rights Commission
submitted:
...consideration should be given to enabling these couples to
elect to convert their relationship to a marriage without first having to
dissolve their civil partnership.[15]
2.16
Similarly, Jamie Gardiner from the Law Institute of Victoria commented:
...there is no provision for dealing with people who have
publicly declared their commitment to a shared life prior to the passing of the
ultimate marriage equality bill...that should happen and it should be based on
the primary ideas of the binding nature of marriage—marriage, after all, is a
civil institution—a mutual commitment to a shared life is voluntary—obviously
the usual rules about not already being married to someone else or not marrying
your brothers and sisters—that it be public and that it be marriage for life.[16]
Consideration of transgender and
intersex in the Exposure Draft
2.17
Although the proposal intends to allow for marriage not determined by
sex or gender,[17]
some submitters and witnesses noted that the inclusive approach to marriage is
not reflected throughout the remainder of the Exposure Draft, including in its
title. For example, Dale Park from the Victorian Gay and Lesbian Rights Lobby
said:
...inclusive language should be reflected throughout the bill
and that the recommended title of the bill, same-sex marriage, be changed so it
is inclusive for trans and gender-diverse people.[18]
2.18
Sally Goldner from Transgender Victoria highlighted a concern that the
Exposure Draft does not appear to consider transgender specific issues—such as the
circumstances of a person who has undergone recognised gender reassignment and
is legally allowed to marry, compared to someone who has not:
We have a term within the trans and gender diverse community
for people who have completed their journey and perhaps do not want to talk
about the first part of their life, and we call it 'in stealth'...the
exemptions would not apply to someone in stealth but someone who was more
either visual in terms of their presentation or perhaps was not in stealth
would face discrimination. So it actually creates total lack of equality and it
almost creates two classes of transgender people.[19]
2.19
Organisation Intersex International Australia (OII) expressed the view
that intersex voices are not often heard in the marriage debate. However:
There are very significant distinctions between the very
different ways that we understand ourselves and the ways that others see us. Intersex
people are born with physical or biological sex characteristics that do not fit
the typical definitions for male or female bodies...The notion of biology is
often taken for granted and taken as a given. But the experience of
intersex people shows that the concepts of biology and normality, when it comes
to being male or female, are quite deeply flawed. The consequences of those
constructs are particularly damaging for our population. So I hope that the
committee and the parliament will choose to reject a civil marriage basis that
is based upon biology and instead choose to look at the relationship of two
adult people regardless of who they are.[20]
Committee view
2.20
The committee supports the use of '2 people' as the appropriate
definition to broaden access to marriage for all Australian adults. An Explanatory
Memorandum should be used to confirm the intention that this definition is to
include transgender and intersex persons.
Exemption for ministers of religion
2.21
Item 5 in Part 1 of Schedule 1 proposes to replace section 47 of the
Marriage Act with new section 47. At present, section 47 enables ministers of
religion to refuse to solemnise a marriage without breaching any obligation in
Part IV of the Marriage Act or the protections against discrimination contained
in Divisions 1 and 2 in Part II of the Sex Discrimination Act 1984 (Cth)
(Sex Discrimination Act).
2.22
Proposed new section 47 would be similar to section 47, except that new paragraph
(3)(a) would expressly provide for ministers of religion to distinguish same‑sex
marriages:
- A minister of religion may refuse to solemnise a marriage
despite any law (including this Part) if:
- the refusal is because the marriage is not the union of a
man and a woman; and
- any of the following applies:
- the refusal conforms to the
doctrines, tenets or beliefs of the religion of the minister's religious body
or religious organisation;
- the refusal is necessary to
avoid injury to the religious susceptibilities of adherents of that religion;
- the minister's conscientious
or religious beliefs do not allow the minister to solemnise the marriage.
'Not the union of a man and a
woman'
2.23
An overwhelming majority of submitters and witnesses recognised the
right of ministers of religion to solemnise marriages in accordance with their
religion.[21]
With reference to religious freedom, Professor Neil Foster told the committee:
I thoroughly support the provisions of this bill which deal
with supporting religious freedom in the context of changing the law on
marriage.[22]
2.24
The Hon. Penny Sharpe MLC, Member of the NSW Parliamentary Working Group
on Marriage Equality agreed:
[W]e support allowing ministers of religion to perform
religious marriage ceremonies per the doctrines, tenants or beliefs of the
ministers' religion.[23]
2.25
Similarly, the Law Council of Australia submitted:
The Law Council, Law Institute of Victoria and the Queensland
Law Society support the protection of religious freedom and considers it
reasonable to allow ministers of religion to conduct religious marriage
ceremonies in accordance with the tenets and doctrines of their religion.[24]
2.26
The LGBTI Legal Service submitted:
...religious freedom is very important to many Australians and...it
should be protected. This proposal to give the ministers the power to conduct
religious marriage ceremonies in accordance with the doctrines of their
religion is reasonable.[25]
2.27
However, there was limited support for proposed new paragraph 47(3)(a),
with many arguing that it would be discriminatory in breach of both
international and domestic law. Amnesty International, for example, submitted:
Given the primary position of religious ministers as keepers
and teachers of their faith, such an exception is appropriate and in accordance
with Article 18 of the [International Covenant on Civil and Political Rights].
However, such an exception should not apply especially to same-sex or otherwise
non-heterosexual marriages. The exemption should apply to all marriages. To
attach the exemption only to marriages that are not between a man and a woman
is inexplicable and discriminatory.[26]
2.28
Dr Luke Beck, a constitutional law academic at Western Sydney
University, submitted that proposed paragraph 47(3)(a) would permit religiously-motivated
discrimination against same-sex couples only:
If [proposed new section 47] was directed at protecting
religious freedom for ministers of religion then para (a) would not be
included. Why not delete para (a) and allow ministers of religion to refuse to
solemnise the marriage of any couple to which they have religious objections?
Why can't a minister of religion discriminate based on conscientious religious
beliefs against a couple that includes a divorcee? Or discriminate based on
conscientious religious beliefs against an interracial couple? Or discriminate
based on conscientious religious beliefs against a couple including a person
not of the same religion as the minister?[27]
2.29
Dr Beck argued also that proposed new paragraph 47(3)(a) would discriminate
between religious groups by proposing exemptions only for those religions that
have objections to same-sex marriages:
By limiting the religious exemptions to the case of same-sex
relationships, the bill is in effect playing favourites among religious groups.
The bill says to people that if your religion objects to same-sex marriage, you
get a special exemption from the ordinary legal rules but if your religion
objects to other types of marriages then tough luck—you do not get a special
exemption. I cannot see the rationale underlying that. By playing favourites
among religions like this, the legislation may also run into constitutional
difficulties.[28]
2.30
The committee notes that definitions of 'sex' vary between the Commonwealth,
states and territories, and legal definitions can differ from religious or
doctrinal definitions. This means that the current drafting which limits
religious exemptions to "same sex couples" would not apply to all
marriages that some religious doctrines would regard as same-sex regardless of
the fact that a person has changed legal sex or because they have biological
attibutes in variance to their legal sex.
2.31
The committee notes also that marriage celebrants are currently referred
to the Australian Government's Guidelines on the Recognition of Sex and
Gender to support the substantiation of a person's sex, however the
definition of 'sex' in these documents may vary from those held by state
registry offices.[29]
Current protection for ministers of
religion
2.32
As the inquiry was examining proposed new section 47, submitters and
witnesses did not comment on current section 47, except to argue that, in view
of its breadth, the existing provision already protects the religious freedom
of ministers of religion.[30]
Fiona McLeod SC said:
...there is no case for the need to further entrench this
protection in law to include in an act whose intention is to protect people
from discrimination an express discriminatory provision that a minister of
religion is not obliged to solemnise a marriage that is not between a man and a
woman.[31]
2.33
Some submitters and witnesses expressed the view that proposed new
paragraph 47(3)(a) would entrench discrimination against LGBTI persons.
For example, the Law Council of Australia submitted:
The Queensland Law Society and Law Institute of Victoria are
of the view that not only are the amendments to this section unnecessary, they
serve to further entrench discrimination against same-sex couples and/or
transgender and intersex couples. They are of the view that, in stating that
ministers are not bound to solemnise 'marriage that is not a union of a man and
a woman, the proposed provision unnecessarily isolates and contributes to the
discrimination experienced by this group, contrary to the aims of the Bill.[32]
2.34
The ACT Government considered that the legalisation of same-sex
marriage should be a process to address systemic and formal exclusionary
barriers LGBTIQ persons experience within the community. However:
...it appears that the proposed legislation seeks to formalise
existing institutional prejudices and discrimination into law rather than
remove them...Adding a reference specifically to gender...is unnecessary with
respect to ministers of religion and entrenches discrimination by singling out
one kind of relationship.[33]
2.35
Others participants stated that the effect of the proposed new paragraph
(and others that similarly single out same-sex couples) would be to convey
a message that same-sex relationships are not quite as equal as other
relationships. Dr Beck submitted, for example:
A marriage equality law, which one would think is aimed at
eliminating discrimination faced by gay people, should not single out gay
people for different and lesser treatment. The proposed marriage equality law
would convey a message that gay people are still not quite as equal in the eyes
of Australian law as other members of the community.[34]
2.36
As more fully set out in chapter three, other submitters drew upon
international law under the International Covenant on Civil and Political
Rights (ICCPR) and in the European context that states that to adopt a
definition of 'marriage' as being between a man and a woman is not
discriminatory, and thus does not enliven equality discourse.
Department response
2.37
The Attorney-General's Department advised that the intention of proposed
new paragraph 47(3)(a) is to confine the broad exemptions that currently exist
in federal anti-discrimination law:
If we remove paragraph (a) the effect of that, we think,
would be to create a very broad religious exemption which would apply across
the board...You might, for example, find yourself in a situation where a
religious body holds a belief that marriage is only for the purposes of
procreation. In that case, where a person has a disability that means they are
unable to procreate, the religious body could say it is not going to
solemnise their marriage because it believes marriage is for the purposes of
procreation. What would happen in that instance is that you are expanding out
to a broader religious exemption than currently exists in discrimination law.[35]
2.38
However, a number of submitters proposed alternative ways of addressing
the concerns of the Attorney-General's Department, including by removing the
words 'despite any law', and allowing the Disability Discrimination Act 1992
(Cth) and Racial Discrimination Act 1975 (Cth) to continue to
override the Marriage Act, as they do now.[36]
Committee view
2.39
The committee acknowledges that there is broad agreement for ministers
of religion to have a right to refuse to solemnise a marriage that is not in
accordance with their religion.
2.40
The committee notes that some submitters and witnesses did not support legislative
exemptions that protect actions or refusals because 'the marriage is not the
union of a man and a woman'. The committee considers that such exemptions would
explicitly discriminate against same-sex couples, while limiting also the
doctrinal reasons for discrimination. For these reasons, should a parliament
consider introducing marriage equality, the committee supports the removal of
these terms from proposed paragraph 47(3)(a) and also from proposed paragraph
47A(1)(a).
2.41
In relation to proposed paragraph 47(3)(a), the committee recognises
that section 47 of the Marriage Act provides the broadest and strongest protection
for ministers of religion. For example, this provision already allows ministers
of religion to refuse to marry people who are divorced or who have undergone
gender transition and have legally changed sex.
2.42
In addition, the committee heard that proposed new paragraph 47(3)(b) is
not consistent with paragraph 37(1)(d) of the Sex Discrimination Act. The
proposed provision would introduce a new ground for exemption—'conscientious or
religious beliefs'—that could conflict with anti-discrimination law and create
a dangerous precedent, as well as juridical complications for the states and
territories who are responsible for upholding the anti-discrimination law. The
committee considers that the intersection of federal, state and territory law
is a complex matter that should be considered further, if a parliament introduces
a marriage equality bill.
Exemption for marriage celebrants
2.43
There are three types of celebrants authorised to solemnise marriages
under Part IV of the Marriage Act ('authorised celebrants'):
-
ministers of religion (registered under Subdivision A of Division
1);
-
state and territory officers (registered under Subdivision B of
Division 1); and
-
marriage celebrants (registered under Subdivision C of Division
1).
2.44
Marriage celebrants include civil celebrants and independent religious
celebrants. According to the Attorney-General's Department, there are a small
number of independent religious celebrants (538) who are authorised to conduct
both civil and religious marriages:
These authorised celebrants would be required, when
solemnising a religious marriage, to solemnise the marriage in accordance with
'any form or ceremony recognised as sufficient' for the purposes of their
religious body or religious organisation. When solemnising a civil marriage,
the vows provided by subsection 45(2) of the Marriage Act would be
used.[37]
2.45
Item 6 in Part 1 of Schedule 1 proposes to insert new section 47A into
the Marriage Act, to provide marriage celebrants with a right to refuse to
solemnise same‑sex marriages:
- A marriage celebrant (not being a minister of religion)
may refuse to solemnise a marriage despite any law (including this Part) if:
- the refusal is because the
marriage is not the union of a man and a woman; and
- the marriage celebrant's
conscientious or religious beliefs do not allow the marriage celebrant to
solemnise the marriage.
2.46
However, some submitters and witnesses contended that the two classes of
'marriage celebrants' are distinct from one another and should not be treated
identically. In particular, some argued that civil celebrants should not be
provided with an exemption, allowing them to opt out of solemnising same-sex
marriages.
Civil celebrants performing a
public service
2.47
Some submitters supported proposed new subsection 47A(1), arguing that
marriage celebrants have an individual right to freedom of conscience and
religion.[38]
For example, Mark Fowler submitted:
The international religious freedom protections contained at
Article 18 of the ICCPR are not limited to religious corporations, they extend
to individuals within society, regardless of their affiliation with any
recognised religious institution. To require celebrants who hold a conscientious
or religious belief about marriage to solemnise a marriage would amount to a burden
upon the exercise of their rights pursuant to Article 18 of the ICCPR.[39]
2.48
Many other submitters supported the exemption being granted and grounded
their arguments in the obligations Australia has to protect the religious
freedom of individuals under international law. These arguments are more
completely set out in chapter three.
2.49
The Attorney-General's Department submitted that the proposed provision
is to ensure that marriage celebrants have 'a protection analogous to that for
ministers of religion'.[40]
2.50
The Australian Federation of Civil Celebrants expressed the views of
some of their members on whether there was a need for protection for celebrants
who may refuse to solemnise marriages on conscientious, or religious grounds:
While not unanimous, the AFCC supports the insertion of the
proposed new Section 47A to provide for those Commonwealth-registered marriage
celebrants opposed to same-sex marriage (according to their own conscientious
or religious beliefs) to refuse or decline to solemnise such marriages.[41]
2.51
Anna Brown from the Human Rights Law Centre focused particularly on
proposed new paragraph 47A(1)(b), saying that the introduction of
'conscientious belief' as a justification for discrimination is 'the most
dangerous idea' in the Exposure Draft:
The idea that a personal moral view could be used to treat
someone unfairly because of a particular attribute strikes at the very heart of
the rationale for our discrimination laws to begin with, which is all about
ensuring equal treatment regardless of particular personal attributes.
Introducing a justification for discrimination on the basis of a personal moral
view is giving a blank cheque to discriminate.[42]
2.52
The Coalition of Celebrant Associations stated that there is no
justification for the proposal, as marriage celebrancy is a public service
where personal considerations are not relevant. Liz Pforr added that legislation
is not necessary to deal with those instances where a celebrant feels that they
cannot marry a couple:
...there are objections that we may have to a couple that come
to us and there are ways that we can say, 'We are unavailable and, by the way,
I can give you the name of somebody who I feel will do a conscientious,
beautiful ceremony for you'.[43]
2.53
The Human Rights Law Centre agreed that this type of practice occurs all
the time, including for ministers of religion, but emphasised the importance of
such practice not occurring on a discriminatory basis. Anna Brown used the
example of where an objection might be grounded on age disparity:
What the law needs to do is make sure that that refusal is
not on a discriminatory basis. If that minister said to that couple, 'I marry
people all the time but I just don't feel comfortable marrying you two because
I just feel like there is a power imbalance in this relationship,' then I think
that is okay, and the law permits that. What the law does not permit is for
either a civil celebrant or a minister of religion to say to that couple, 'I'm
not marrying you because of your age,' unless the person is obviously a minor...that
is where our law draws the line in terms of permissible conduct and...that is
appropriate.[44]
Chaplains
2.54
Item 8 in Part 1 of Schedule 1 proposes to insert an example into
section 81 of the Marriage Act, to clarify that a chaplain may refuse to
solemnise a same-sex marriage where the refusal is based on the doctrines,
tenets or beliefs of the chaplain's church or faith group.
2.55
The Human Rights Law Centre commented on this proposal, highlighting
that members of the defence force serving overseas could be impacted, with
their being no alternative persons authorised to solemnise a wedding ceremony
under Australian law:
The impact on defence force members wanting to marry overseas
is very different from marriages in Australia. When section 81 of the Marriage
Act was drafted in 1961, a 'marriage officer' (i.e. Australian consular
officials overseas) or a chaplain could solemnise marriages overseas. However,
it appears that marriage officers were removed from the Marriage Act in
2002 at the request of the Department of Foreign Affairs and Trade '[d]ue to the
high costs of providing such services overseas'.[45]
A potential grandfather provision
2.56
The Coalition of Celebrant Associations noted that there might be some
civil celebrants (approximately three per cent of its members) who would not
want to solemnise same-sex marriages and for whom an exemption based on 'conscientious
or religious belief' might appropriately be accommodated in grandfathering
provisions.[46]
2.57
Other witnesses told the committee that they would not support such a
proposal. For example, Lauren Foy from the New South Wales Gay and Lesbian
Rights Lobby said:
At the end of the day, they have entered into an agreement to
provide a civil service, and that is part of the agreement—in the same way that
it is business. But, for them, also, they would be losing business...Out of the
research that the civil celebrants did, I think that there were 500 people out
of the 10,000 people surveyed who said that they would not do it. That is a
very small proportion of civil celebrants who said that they would not. But I
guess we are incredibly concerned, in particular, for people in rural and
regional areas—in small towns that have not so many businesses and not so many
opportunities to access it.[47]
2.58
An officer from the Attorney-General's Department said that if
grandfathering clauses were required, then the department would have to
consider how that might work, including due to the existence of two regimes of
civil celebrants.[48]
2.59
The Human Rights Law Centre representative noted a common theme
throughout the inquiry—that is, that the solemnisation of a marriage is a
personal and intimate service, where same-sex couples can choose not to proceed
with a celebrant whom they consider is not right for them:
It is not your typical: go to the milk bar and buy a loaf of
bread and some milk. You want someone who fits your personal values and belief
system to share a very special day with you as a couple. So, in those
conversations, I think civil celebrants can make it clear if they have a
particular conscientious or moral view on same-sex marriage, and same-sex
couples can vote with their feet and make a decision. They know that they would
still have the dignity of not being refused service because it is not lawful to
do that, but they can make that choice and go to another civil celebrant.[49]
2.60
Dr Sharon Dane agreed:
...same-sex couples are not likely to want someone to marry
them who opposes their marriage. There are ways civil celebrants can let it be
known that they are supportive of same-sex marriage, as there are many
organisations—like accommodation places, travel, that say 'LGBTI friendly'—so
there are ways of letting people know [subtly] that this celebrant is
supportive and so that is where the business will go. It is not likely or it is
highly unlikely or there are very small cases where someone would deliberately
want to force a marriage celebrant to conduct their ceremony when they are
disapproving.[50]
2.61
An alternative to grandfathering provisions might be to develop an
avenue for such celebrants to be registered as an 'independent religious
celebrant'. While not many submitters explored this solution, the Human Rights
Law Centre's Anna Brown identified this as a preferred approach:
So, if indeed we have people of faith performing civil
ceremonies, I think it is more appropriate for them to somehow be brought in
and be performing those ceremonies as religious ceremonies, because once you
are in a civil institution I think civil law should apply. That is our argument
around civil celebrants: it is a secular function on behalf of the state,
established to provide an alternative to religious marriage. So, if those
people of faith are performing ceremonies in accordance with their faith, then
they need to be moved into another realm.[51]
Conflation of civil celebrants and
independent religious celebrants
2.62
As noted above, Subdivision C of Division 1 of Part IV of the Marriage
Act encompasses two kinds of marriage celebrants: civil celebrants and
independent religious celebrants. The Coalition of Celebrant Associations
recommended that these two classes of celebrant should be separated into two
distinct categories.[52]
2.63
For the purposes of the Exposure Draft, some witnesses agreed that
proposed new subsection 47A(1) should provide a right for independent religious
celebrants to refuse to solemnise same-sex marriages in accordance with their
religion.[53]
For example, Professor Parkinson suggested that it might be easier to
have:
...a definition which says that whatever exemptions are there
for ministers of religion also apply to anybody who is pastoring any sort of
faith community, anybody who is authorised by a faith community to celebrate
marriages...I do not think that is difficult to draft. It is just that the
structure of the Marriage Act as it is at the moment causes a lot of
complexity.[54]
2.64
Similarly, Dr Luke Beck suggested:
...the opening words of proposed section 47(3) could be amended
to read: "Despite any law, a minister of religion (including a minister of
religion who is registered as a marriage celebrant under Part IV Division 1
Subdivision C of this Act) may refuse..." or "Despite any law, a
minister of religion (including a minister of religion who is not a minister of
religion of a recognised denomination) may refuse..."'.[55]
Department response
2.65
The Attorney-General's Department advised that independent religious
celebrants are encompassed by section 47 of the Marriage Act.[56]
Further, in answer to a question on notice, the department highlighted that
there is a process for that celebrant's religious body or religious organisation
to become a recognised denomination. For example, in 2015 the Marriage
(Recognised Denominations) Proclamation 2007 was amended, to allow for the
recognition of 13 new recognised denominations:
Ministers belonging to these new recognised denominations who
were registered as Commonwealth-registered marriage celebrants were encouraged
to resign from the programme and seek registration with the relevant state or
territory registry of births, death and marriage under Subdivision A of the Marriage
Act.[57]
Consequential amendments
2.66
Some submitters proposed an alternative approach of identifying those
marriage celebrants who would be happy to solemnise same-sex marriages.
Queensland lawyer Mark Fowler suggested that this distinction might assist in
mitigating the 'affront' or potential harm to same‑sex couples whom a
marriage celebrant declines to marry:
How do we avoid the offence level? Is it possible to have on
the register a demarcation of those persons who are willing to offer services
to same-sex attracted persons in the context of marriage celebration so that we
do not have a register that declares an affront to persons who are same-sex
attracted of all the people who are not willing to do so? What we are doing is
a positive declaration as opposed to a negative declaration.[58]
2.67
Mark Fowler based this proposition on Article 18 of the ICCPR, which
protects the religious freedom of not only religious institutions but also of
individuals, and on the Article's associated Siracusa Principles, which, in
setting out when a limitation of a right may be considered 'necessary', require
that 'in applying a limitation, a state shall use no more restrictive means
than are required'.
2.68
A number of submitters and witnesses expressed support for some type of
indicator on the register of authorised celebrants maintained by the
Attorney-General's Department.[59]
Anna Brown from the Human Rights Law Centre said:
...the principle that businesses, religious organisations,
civil celebrants or whatever we may be exempting should be transparent and
advertise their intention to discriminate is very important...the principle
that same-sex couples should be able to make an informed decision before they
go to a service provider where they may experience discrimination is very
important and is something to take regard of.[60]
2.69
In evidence, the committee canvassed witnesses' views of an alternative
option—that is, the concept of a 'single entry point' system as formulated by
the Canadian Court of Appeal for Saskatchewan in the 2011 case of Marriage
Commissioners Appointed Under the Marriage Act (Re Marriage Commissioners).
Under such a system, a couple seeking the services of a marriage
commissioner (the equivalent of a civil celebrant) would deal direct with
a central office:
In such a system, if the request for the services of a
commissioner included information about the sorts of matters that might lead a
commissioner to excuse himself or herself on religious grounds, then the
religious beliefs of individual commissioners could be accommodated "behind
the scenes" with the result that no couple would be denied services
because of a consideration which would engage [the constitutional right to
equality]...we were advised...that in Ontario, or in Toronto at least, a system
along these lines is presently in place and operating.[61]
2.70
Some witnesses were not supportive of the proposal. The Law Council of
Australia explained:
...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.[62]
2.71
However, Professor Foster did not agree with this conclusion, stating:
...the fact is that you do not necessarily park your religious
freedom at the door when you enter the office. There is a recognition generally
that religious freedom applies. For example, when someone who is a Muslim
enters a job where they need some time off to go to prayer on a Friday or
something like that, often there is an accommodation made because we recognise
that people have those sorts of religious freedom rights...it is not true to
say that simply entering the commercial sphere means that you automatically
cleanse yourself of any religious beliefs or that society no longer recognises
that you have religious freedom rights.[63]
Committee view
2.72
In relation to exemptions currently available to independent religious celebrants,
the committee notes that there is an apparent inconsistency between
evidence from the Attorney‑General's Department and section 47 of the
Marriage Act, which states that that provision applies to 'an authorised
celebrant, being a minister of religion'. It would be helpful if this
inconsistency were clarified.
2.73
The committee acknowledges that the current structure of Part IV of the
Marriage Act is complex, particularly in relation to marriage celebrants
registered under Subdivision C of Division 1. The committee heard that the two
classes of celebrant within this subdivision should be clearly distinguished,
to more readily identify those celebrants who are referred to as independent
religious celebrants in this report.
2.74
Having found support for ensuring ministers of religion should be
afforded the right to conduct marriages in accordance with their religious
doctrines, tenets and beliefs, the committee believes this principle should be
extended to the independent religious celebrants currently registered as 'marriage
celebrants' under Subdivision C.
2.75
While evidence was given by the Attorney-General's Department that these
independent religious celebrants are currently protected under section 47, the committee
believes it would be clearer to amend the Marriage Act to create a new Subdivision
D (Religious Marriage Celebrants), to create a new category of celebrant for
independent religious celebrants with similar responsibilities that exist today
under their inclusion in Subdivision C. However, they should explictly enjoy
the protections afforded to ministers of religion.
2.76
The committee notes that there are a range of views about whether the
Marriage Act should provide the remaining civil celebrants with a right to
refuse to solemnise any marriage, including same-sex marriages. The committee
acknowledges that, if an exemption were to be given, some participants
supported an exemption that does not specify particular grounds for exercise of
the right.
2.77
The committee considers that civil celebrants are authorised to perform
a function on behalf of the state and should be required to uphold Commonwealth
law. That said, the committee heard evidence that some civil celebrants would
feel compromised at having to solemnise a same-sex marriage if the law were
changed and respects this position.
2.78
The committee proposes that consideration be given to affording a pathway
for current civil celebrants to elect to transfer to a new Subdivision D
(Religious Marriage Celebrants), allowing these celebrants the benefit of the
protections afforded to ministers of religion and independent religious
celebrants. This approach would provide a clear and easy to administer solution
where all Subdivision D (Religious Celebrants) would be able to access
protections for their religious views, while all remaining and future
Subdivision C Marriage Celebrants would continue to provide non‑discriminatory
services.
2.79
The committee notes that, while some submitters and witnesses suggested
that the Exposure Draft could include grandfathering clauses to protect civil
celebrants with religious beliefs, the committee considers that such provisions
would not be necessary with the creation of the suggested Subdivision D
(Religious Marriage Celebrants).
2.80
In relation to military chaplains, the committee notes that the proposed
amendment would not change the current law. Should a parliament consider introducing
marriage equality in Australia, the committee suggests that the government
consider reintroducing the concept of 'marriage officers' to facilitate the
marriage of Australians overseas.
Exemption for a religious body or organisation
2.81
Item 6 in Part 1 of Schedule 1 also proposes to insert new section 47B
into the Marriage Act, to provide a 'religious body or a religious
organisation' with a right to refuse to make a facility available, or to
provide goods or services, for same‑sex marriages:
- A religious body or a religious organisation may, despite
any law (including this Part), refuse to make a facility available, or to
provide goods or services, for the purposes of the solemnisation of a marriage,
or for purposes reasonably incidental to the solemnisation of a marriage, if:
- the refusal is because the
marriage is not the union of a man and a woman; and
- the refusal:
- conforms to the doctrines,
tenets or beliefs of the religion of the religious body or religious
organisation; or
- is necessary to avoid
injury to the religious susceptibilities of adherents of that religion.
Commercial activities and
application of the ordinary law
2.82
Participants in the inquiry expressed different views regarding support
for granting a 'religious body or a religious organisation' a right to refuse
facilities, goods or services for, or 'reasonably incidental to', same-sex
marriages. Some argued that there is no demonstrable need for such an
exemption. For example, Dr Beck submitted:
Religious bodies and organisations have carried on perfectly
well until now even though there are, and have been for a long time, forms of
marriage permitted by Australian law to which they have objections. There is no
need for proposed s 47B. Proposed s 47B should be deleted from the Bill.[64]
2.83
The Reverend Dr Margaret Mayman agreed:
...silence on these issues, such as currently exists in the '61
Marriage Act, does provide people the opportunity for sensible responses. Human
nature being what it is, some people will refuse, but the point of this is that
it should not be on the grounds of discrimination.[65]
2.84
Other submitters stated that proposed new subsection 47B(1) goes beyond
what is necessary to protect religious freedom.[66]
Similar to the argument that civil celebrants are public service providers, it
was suggested that religious organisations who provide commercial services
should be subject to the ordinary law. However, the Tasmanian
Anti-Discrimination Commissioner conceded that this is a difficult line to
draw:
...it is useful to think about it in terms of: is this
something that is publicly available; is it offered to the public at large;
and, if it is, then why should different rules apply to some people? We would
not permit, for example, a person to refuse to hire such a venue to an Aboriginal
couple or a mixed race couple on the basis that it might be somebody's
religious objection to such a relationship—and that has certainly been the case
in the past. We would not permit that, so why, if it is commercially available,
if it is a commercial service, would we allow that kind of expression of
religion to interfere with access to facilities?[67]
2.85
Some submitters and witnesses noted that, internationally, not many
countries have provided exemptions for religious bodies in the provision of
commercial services relating to same‑sex marriages. Amnesty International
told the committee that, in at least one comparable jurisdiction:
The absence of exemptions for religious organisations and
bodies has not caused controversy or conflict...The NZ Human Rights Commission
recalls receiving only one inquiry about the use of religious organisation
facilities (such as a church hall) for a same-sex marriage, and they have
received no complaints regarding situations arising where such a facility has
been requested but refused.[68]
Disproportionate effect
2.86
Similar to proposed new paragraph 47(3)(a) and proposed new subsection
47A(1), submitters and witnesses argued that proposed new paragraph 47B(1)(a)
would discriminate against and disproportionately affect same-sex couples.
2.87
Dr Greg Walsh, a human rights expert based at the University of Notre
Dame, focused on arguments of comparative harm, stating that a person who
refused to provide facilities, goods or services due to their 'conscientious
belief' would experience greater harm:
If they are forced to deliver the service in contradiction to
their conscience then that will cause them to suffer grave emotional harm in
many circumstances. There may be repercussions for them in their religious
community...If they decide not to provide the service, contrary to a law that
requires them to, then the kind of harm that they would suffer would be quite
significant. They would suffer if the complaint goes to antidiscrimination
tribunals or similar bodies, which it often does. Then they may be subject
to a significant compensation payout...Anyone required to pay that kind of
compensation amount will typically have to close their business, or, anyway,
the payment of that amount would be significant. Some people will be required
to lose their job. Also, the fact that it goes to litigation will highlight the
fact that these people have considered, in conscience, that they cannot provide
that service, so that will lead to boycotts and protests.[69]
2.88
Dr Alex Deagon from the Queensland University of Technology concurred
with Dr Walsh in that the focus is often only on the harm suffered by the
same-sex couple, without taking into account the harm to those subject to a
complaint:
...the main counter argument seems to centre around the harm
suffered by the same-sex couple which is denied a commercial service in
entering into a marriage or a commitment ceremony of some kind. And as Dr Walsh
noted, it seems more plausible that in most cases the harm and the hardship
suffered would be quite limited. It would be relatively straight forward in
most cases for the couple to simply seek an alternate provider.[70]
2.89
Professor Nicholas Aroney and Dr Joel Harrison expressed similar
concerns:
Religious freedom has often been treated as a second-class
right, while anti-discrimination laws have been given priority...Great care needs
to be taken to ensure that a focus on the first-mentioned right (freedom from
discrimination) does not diminish the others (e.g. freedom of religion,
association and cultural expression and practice). This can readily happen, for
example, if freedom of religion is respected only grudgingly and at the margins
of the law as a concessionary ‘exception’ to general prohibitions on
discrimination. It can also happen if inadequate attention is paid to freedom
of association and the rights of groups to celebrate and practice their faith
and culture together.[71]
2.90
The Institute for Civil Society were of a similar view to that of Dr
Deagon:
It is highly unlikely that permitting conscientious objectors
to refuse to supply commercially available goods or services related to
marriage to same sex couples who are to be married or are married would lead to
an actual inability of such couples to access those commercial goods or
services. It is difficult to imagine a case where there were no alternate
commercial providers of such goods or services who could not undertake the
supply.[72]
2.91
Their comments describing religious or conscientious conviction as fundamental
to a person's identity explain the nature of the harm in question:
...the individual or the organisation has a conviction that a
certain attitude or course of conduct is required or prohibited by the religion
or the principle of conscience which must be followed as a matter of duty.
The duty is owed through prior commitment to God or to gods or to an
accepted principle of conscience. To fail to fulfil the duty (or do all that
can be done to fulfil it) causes major internal conflict and perhaps a sense of
failure and shame. Persons with a strong religious or conscientious duty will
act contrary to their self-interest, economic and physical security and
pleasure to fulfil the duty. The nature of a conviction of religion or
conscience as imposing a significant duty is not much articulated in modern
society where it is often diluted by being treated in the same way as any
preference. Failing to fulfil such a duty is much more costly than giving up a
preference.[73]
2.92
Professor Aroney and Dr Harrison argued:
Anti-discrimination law serves the purpose of protecting
persons against exclusion from services for irrational reasons, grounded in
animus towards, for example, persons of a particular race, sex or sexual
orientation. However, provisions accommodating religious and conscientious
objections in this context reflect views on the nature of marriage. For those
with an objection to same-sex marriage, this typically entails arguments on the
importance of relationships between men and women, the family, and the bearing
these have on our relationship with the divine.[74]
2.93
The Law Council of Australia argued that exclusion from goods and
services is not simply an inconvenience:
The jurisprudence...suggest that there is something much more
profound to refuse someone a good or service based on their very identity, and
that this is something inimical to human beings. Who they are, their sex, their
gender, their sexual preference or orientation and their gender identity is
something intrinsic to human beings, so it is something much more than a matter
of inconvenience.[75]
2.94
This was illustrated by Amnesty International, quoting one of its
members:
We may choose the words to describe ourselves but we do not
choose our identities: this is who we are. When people refuse us goods and
services for being LGBTQI—for being who we are—and when this is legally
sanctioned by the highest authority in our country, it sends a powerful message
about our status that reverberates deep into our lives and the lives of our
families...These messages have a huge, sometimes devastating, impact on the
mental health and emotional wellbeing of my community.[76]
2.95
Dr David Phillips from FamilyVoice Australia contended that
consideration of the availability of services must be a factor in
anti-discrimination cases:
...if you take a city the size of Adelaide or any of the major capitals,
there are hundreds and hundreds of florists; if one florist says, 'I don't want
to provide flowers for your wedding,' there are dozens of other florists in
easy reach. So I think one thing that has not been considered in most
antidiscrimination laws that I am aware of is the criterion that if a service
is available through multiple alternative sources then you should not deny
people the right to exercise their conscience.[77]
2.96
In relation to the Exposure Draft, Amnesty International submitted also:
It is important to recognise that these exemptions, as with
the exemptions relating to civil celebrants, could have a disproportionate
impact on couples in more regional and remote areas and from culturally and
linguistically diverse (CALD) communities. While in major towns and cities it
will be possible for LGBTQI couples to access marriage venues and services from
a wide range of organisations (religious or otherwise), couples in regional and
remote areas are likely to face difficulties. Couples from CALD communities may
want or need to access services that are linguistically or culturally
appropriate for them and their families, limiting their choices.[78]
Uncertain scope of the proposed
provision
2.97
A large number of submitters and witnesses observed that the terms
'religious body or religious organisation' and 'reasonably incidental to' are
not defined in the Exposure Draft. Mark Fowler noted that there exist
precedents in Australian law that support a broad definition of 'religious
body', one that includes faith based community service providers:
These are not necessarily ethereal concerns. They have
certainly been dealt with by the New South Wales Court of Appeal, the Supreme
Court, which in the Wesley Mission case held that Wesley Mission was able to
express its religious freedom rights in respect of an application for fostering
assistance by a same-sex couple. In New South Wales that has held to be a
legitimate expression of religious freedom rights.[79]
2.98
This raised concerns about the scope of proposed new section 47B and its
connection to religious freedom.[80]
Professor Aroney and Dr Harrison submitted:
The protection of freedom of religion should not depend on
whether an organisation has been formed for religious purposes. Nor should it
depend on the particular legal form that a group or organisation takes. The protection
should embrace all types of groups and organisations, whether formed as
unincorporated associations, partnerships, corporations or otherwise. What
should only matter is whether the action in question – in this case a refusal
to make a facility available or provide goods and services in connection with a
samesex marriage – is sincerely motivated by the religious beliefs or
convictions of the persons involved. This is necessary to meet the problems
that arose in the Ashers Bakery case in the United Kingdom and several similar
cases in the United States.[81]
2.99
Amnesty International submitted:
The section would appear to apply to church halls and
grounds, but could it also include businesses or non-profit organisations that
appear to be secular but are owned by a religious organisation? For example,
would the exemption extend to a florist within a religious hospital? Or a charitable
organisation owned by a religious body that provides essential services to
people with mobility or other specialist needs that would need to be factored
into a wedding?[82]
2.100
Natalie Cooper from Equal Voices said:
...the common definition of 'incidental to' is 'liable to arise
as a consequence of'. Claims may therefore be made that goods and services
arising as a consequence of the marriage are covered by section 47B, such as
housing, health care, education, financial planning, financial services, aged
care and child care. At any point during a couple's marriage, the argument may
be made that these basic human goods and services arrive as a consequence of
the marriage. This proposed amendment invites legalised discrimination against
same-sex couples and their families, such as would never be tolerated
against any other section of the community. It sets a dangerous precedent
for further discrimination in law on the basis of sexual orientation alone.[83]
2.101
Professor Foster highlighted that similar terminology is used in the Equal
Opportunity Act 2010 (Vic):
[I]t is similar to wording that is used in state legislation.
Section 84 of the Victorian Equal Opportunity Act 2010 is already there
providing some religious freedom protection for individuals, and I think,
analogously, a provision could be put into the Marriage Act.[84]
2.102
Submitters queried also whether the proposed provision would exceed the
protection currently provided by section 37 of the Sex Discrimination Act.[85]
The Tasmanian Anti-Discrimination Commissioner, Robin Banks, highlighted
that proposed new section 47B(1) might even prevent states and territories from
considering complaints:
There is some recent case law out of Victoria which suggests
that state jurisdictions should not consider complaints where there is
potential federal legal coverage.[86]
2.103
Asked whether the Sex Discrimination Act is a suitable place to put the
wider religious freedom protections (as opposed to those in respect of
marriage), Mark Fowler argued:
The appropriate place is naturally, of course, within the Sex
Discrimination Act. And the reason is obvious: because, whilst this bill
enlivens considerations around marriage, there are other religious freedom
protections to be maintained...The marriage question is distinct, as I hope I
have made clear, under international human rights. So there are reasons why
protections should be located within the Marriage Act itself as proposed by
this bill.[87]
Department response
2.104
Officers from the Attorney-General's Department advised that the
Marriage Act and the Sex Discrimination Act already use terms—such as
'religious body' and 'religious organisation'—that are not defined in those
Acts. One officer stated that, in federal legislation, the department
relies on the ordinary meaning of terms, as well as any relevant jurisprudence.
Further:
If government decided that it wanted to look at a definition
of religious organisation or religious body then that is something we would
clearly need to give a great deal of thought to and how would that work with
other definitions that there might be as well.[88]
2.105
In addition, representatives stated that proposed new section 47B
reproduces section 37 of the Sex Discrimination Act and 'then confines it just
in relation to the solemnisation and anything incidental to the solemnisation'.[89]
An officer noted:
It could potentially have done that through the Sex
Discrimination Act, but the government made the decision it wanted to make it
very clear on the face of the Marriage Act that those exemptions were in place.[90]
Committee view
2.106
The committee recognises that there is a range of views on whether a
'religious body or a religious organisation' should have a right to refuse to
provide facilities, goods or services for, or 'reasonably incidental to',
same-sex marriages.
2.107
The committee notes that some participants did not support the
creation of a provision that singles out a right to refuse goods or services
simply because 'the marriage is not the union of a man and a woman' and would
prefer that no particular singular grounds were included. The committee notes
also that some submitters were of the view that the reference to 'a man and a
woman' in proposed paragraph 47B(1)(a) may not be necessary, as paragraph
37(1)(d) of the Sex Discrimination Act already provides an exemption for
religious bodies. Again, this raises issues of consistency and potential
intersections in Commonwealth laws that the committee suggests might warrant
further consideration.
2.108
In addition, the committee notes that the Exposure Draft contains broad
terms—such as 'reasonably incidental to'—that are not defined.
The committee appreciates that this lack of definition could create legal
uncertainty, with submitters and witnesses questioning the scope of the
proposed exemption. The committee suggests that it would be prudent to
precisely define such terms in any proposed legislation. In this regard, the
committee notes Bishop Comensoli's suggestion that the appropriate nexus for
the provision of goods or services might be those goods or services that are
'intrinsic to, directly associated with and intimately involved' in a wedding
ceremony.[91]
Consequential amendments to the Exposure Draft
2.109
Submitters and witnesses noted that the Exposure Draft does not include
any proposed consequential amendments. The Attorney-General's Department advised
that approximately 25 Commonwealth Acts (including the Marriage Act) would need
to be amended (about 40–60 individual amendments):
Some Commonwealth statutes contain provisions which are
written in a manner that presumes that a marriage can only be between a man and
a woman, or, if same-sex marriage was legalised, would operate to inadvertently
discriminate against particular married spouses. The key objective of the
consequential amendments would be to ensure that, where a legislative provision
currently applies to husbands and/or wives, the provision would be amended
to apply to married spouses of any gender (unless there is a clear reason why
this should not be the case).[92]
2.110
Some submitters and witnesses acknowledged that there would be a need
for multiple consequential amendments. For example, the Institute for Civil
Society submitted:
This is because the institution of marriage is fundamental to
many laws and the proposed change to the definition of marriage in the Marriage
Act will automatically lead to many substantial flow on effects in the
operation and application of other Federal, State and Territory laws such
as anti-discrimination laws, succession laws and charity law. The Bill's
provisions regarding protection of freedom of religion and of conscience do not
adequately consider and address these flow on effects.[93]
Committee view
2.111
Should legislation be introduced into a Parliament to legalise same-sex
marriage, the committee recommends the provision of a more comprehensive
indication of potential consequential amendments. This would enable
interested parties to more thoroughly examine and consider the effect of a
bill, perhaps enabling a Parliament to reach a consensus position on the issue.
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