Executive Summary

[1]        In the event that the Parliament passed the Plebiscite Bill, the Government proposed the establishment of a Joint Select Committee to review and report on the Exposure Draft. The composition of that committee would be as agreed by the Government, the Opposition, and Crossbench parties.

Chapter 1 - Introduction

[1]        Journals of the Senate, No. 22–30 November 2016, p. 713.

[2]        Journals of the Senate, No. 22–30 November 2016, p. 713.

[3]        Senator the Hon. George Brandis QC, Attorney-General for Australia, Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill, 10 October 2016, https://www.attorneygeneral.gov.au/Mediareleases/Pages/2016/FourthQuarter/Exposure-Draft-Of-The-Marriage-Amendment-Same-Sex-Marriage-Bill.aspx (accessed 8 February 2017).

[4]        Journals of the Senate, No. 27–13 February 2017, p. 916.

[5]        https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Same_Sex_Marriage (accessed 8 February 2017)

[6]        A submission was categorised as a form letter where it contained a specific, or easily identifiable, template of words. A submission was included as a variation to a particular form letter where the template of words was modified but could still be identified as having derived from a form letter, or where the template was supplemented with additional material.

[7]        Parliamentary Library of Australia, Same-sex marriage: issues for the 44^th Parliament, Research Paper Series, 2015­–16, 8 September 2015, p. 1, http://parlinfo.aph.gov.au/parlInfo/download/library/prspub/4062596/upload_binary/4062596.pdf;fileType=application%2Fpdf (accessed 8 February 2017).

Chapter 2 - Provisions of the Exposure Draft

[1]        Commonwealth v Australian Capital Territory [2013] HCA 55. Also see: Dr Augusto Zimmerman, Submission 54, p. 13.

[2]        For example: Damian Wyld, Chief Executive Office, Marriage Alliance, Committee Hansard, Canberra, 25 January 2017, p. 7; Dr David Phillips, Founder, FamilyVoice Australia, Committee Hansard, Canberra, 25 January 2017, p. 8.

[3]        Most Reverend Peter Comensoli, Bishop, Australian Catholic Bishops Conference, Committee Hansard, Sydney, 24 January 2017, p. 1.

[4]        Damian Wyld, Chief Executive Office, Marriage Alliance, Committee Hansard, Canberra, 25 January 2017, p. 2.

[5]        Right Reverend Dr Michael Stead, Chair of the Religious Freedom Reference Group and Bishop of South Sydney, Anglican Church Diocese of Sydney, Committee Hansard, Sydney, 24 January 2017, p. 2. Also see: Most Reverend Peter Comensoli, Bishop, Australian Catholic Bishops Conference, Committee Hansard, Sydney, 24 January 2017, p. 3.

[6]        Tom Snow, Co-Chair, Australians for Equality, Committee Hansard, Canberra, 25 January 2017, p. 21. Also see: C. Blumer, '7 things Vote Compass reveals about Australians' views on same-sex marriage', ABC News, 22 June 2016, http://www.abc.net.au/news/2016-06-22/election-2016-vote-compass-same-sex-marriage/7520478 (accessed 14 February 2017).

[7]        Benjamin Oh, Chair of Advisory Board, Australian Catholics for Equality, Committee Hansard, Melbourne, 23 January 2017, p. 12.

[8]        Federation of the Australian Buddhist Councils, Submission 31, p. 1.

[9]        Rabbinical Council of Australia and New Zealand and Rabbinical Council of Victoria, Joint Submission 133, p. 1.

[10]      Rabbinic Council of the Union for Progressive Judaism, Submission 6, p. 1.

[11]      For example: Australian Human Rights Commission, Submission 72, p. 10; Law Council of Australia, Submission 74, p. 8; Benjamin Oh, Chair of Advisory Board, Australian Catholics for Equality, Committee Hansard, Melbourne, 23 January 2017, p. 12.

[12]      Fiona McLeod SC, President, Law Council of Australia, Committee Hansard, Melbourne, 23 January 2017, p. 1.  

[13]      Liz Pforr, Vice-Chair, Coalition of Celebrant Associations, Committee Hansard, Melbourne, 23 January 2017, p. 39. Also see: Reverend Dr Margaret Mayman, National Executive Member, Uniting Church LGBTIQ Network, Uniting Church of Australia, Committee Hansard, Melbourne, 23 January 2017, p. 13; Alex Greenwich, Co-Chair, Australian Marriage Equality, Committee Hansard, Canberra, 25 January 2017, p. 27.

[14]      Liz Pforr, Vice-Chair, Coalition of Celebrant Associations, Committee Hansard, Melbourne, 23 January 2017, p. 40.

[15]      Australian Human Rights Commission, Submission 72, p. 30. Also see: Human Rights Law Centre, Submission 77, pp. 4 (Recommendation 13) and 5.

[16]      Jamie Gardiner, Member of LIVout, Law Institute of Victoria, Committee Hansard, Melbourne, 23 January 2017, p. 5. Also see: pp. 6–7.

[17]      Attorney-General's Department, Submission 78, p. 2.

[18]      Dale Park, Co-Convenor, Victorian Gay and Lesbian Rights Lobby, Committee Hansard, Melbourne, 23 January 2017, p. 30.

[19]      Sally Goldner, Executive Director, Transgender Victoria, Committee Hansard, Melbourne, 23 January 2017, p. 33. Other witnesses agreed that transgender specific issues are not addressed in the Exposure Draft Bill: for example: Professor Neil Foster, Committee Hansard, Sydney, 24 January 2017, p. 16; Elizabeth Wing, Acting President, Anti-Discrimination Board of New South Wales, Committee Hansard, Sydney, 24 January 2017, p. 16.

[20]      Morgan Carpenter, Co-Executive Director, Organisation Intersex International Australia, Committee Hansard, Canberra, 25 January 2017, pp. 23 and 28.

[21]      For example: Australian Human Rights Commission, Submission 72, p. 14.

[22]      Associate Professor Neil Foster, Committee Hansard, Sydney, 24 January 2017, p. 48.

[23]      Hon. Penny Sharpe MLC, Member, NSW Parliamentary Working Group on Marriage Equality, Committee Hansard, Sydney, 24 January 2017, p. 40.

[24]      Law Council of Australia, Submission 74, p. 8.

[25]      For example: LGBTI Legal Service, Submission 40, p. [2].

[26]      Amnesty International, Submission 46, p. 5.

[27]      Dr Luke Beck, Submission 52, p. 2. Also see: LGBTI Legal Service, Submission 40, p. [3]; Victorian Gay and Lesbian Rights Lobby, Submission 34, p. [2], which both argued that the proposed provision would introduce a new ground for discrimination.

[28]      Dr Luke Beck, Committee Hansard, Sydney, 24 January 2017, p. 48. Dr Beck stated that any constitutional problems could be avoided by removing proposed new paragraph 47(3)(a) from the Exposure Draft Bill: Dr Luke Beck, answer to question on notice (received 27 January 2017), pp. 2–3.

[29]      Australian Government, Guidelines on the Recognition of Sex and Gender, July 2013, revised November 2015, https://www.ag.gov.au/Publications/Documents/AustralianGovernmentGuidelinesontheRecognitionofSexandGender/AustralianGovernmentGuidelinesontheRecognitionofSexandGender.PDF (accessed 13 February 2017).

[30]      For example: Anti-Discrimination Board of NSW, Submission 36, pp. [1­­­–2]

[31]      Fiona McLeod SC, President, Law Council of Australia, Committee Hansard, Melbourne 23 January 2017, p. 2. Also see: Jamie Gardiner, Member of LIVout, Law Institute of Victoria, Committee Hansard, Melbourne, 23 January 2017, p. 5. Thomas Clark also noted the inconsistency between the legislative objective and proposed exemption in relation to marriage celebrants: Director of Law Reform, LGBTI Legal Service, Committee Hansard, Melbourne, 23 January 2017, p. 37.

[32]      Law Council of Australia, Submission 74, p. 9. Also see: Benjamin Oh, Chair of Advisory Board, Australian Catholics for Equality, Committee Hansard, Melbourne, 23 January 2017, p. 12; Rosh Pinah, Submission 127, pp. 2–4, which both commented that discrimination exists not only in society but also within religious hierarchies.

[33]      ACT Government, Submission 19, p. [3].

[34]      Dr Luke Beck, Submission 52, p. 2.

[35]      Andrew Walter, Assistant Secretary, Civil Law Unit, Attorney-General's Department, Committee Hansard, Canberra, 25 January 2017, p. 38. It was noted that the proposed provision could be redrafted so as not to target certain relationships. Also see: Attorney-General's Department, which offered the same rationale in relation to proposed new subsection 47B(1): answer to question on notice (received 3 February 2017), p. 2.

[36]      Australian Human Rights Commission, Submission 72; Human Rights Law Centre, Submission 77.

[37]      Attorney-General's Department, answer to question on notice (received 3 February 2017), p. 4. Also see: Kimberley Williams, Principal Legal Officer, Marriage Law and Celebrant Section, Attorney-General's Department, Committee Hansard, Canberra, 25 January 2017, p. 37.

[38]      For example: Professor Patrick Parkinson, Submission 76, p. 6; Australian Federation of Civil Celebrants, Submission  47, p. [2].  

[39]      Mark Fowler, Submission 57, p. 13.

[40]      Attorney-General's Department, answer to question on notice (received 3 February 2017), p. 3.

[41]      Australian Federation of Civil Celebrants, Submission  47, p. 2.           

[42]      Anna Brown, Director, Advocacy and Strategic Litigation, Human Rights Law Centre, Committee Hansard, Canberra, 25 January 2017, p. 23.

[43]      Liz Pforr, Vice-Chair, Coalition of Celebrant Associations, Committee Hansard, Melbourne, 23 January 2017, p. 39. Also see: Reverend Dr Margaret Mayman, National Executive Member, Uniting Church LGBTIQ Network, Uniting Church of Australia, Committee Hansard, Melbourne, 23 January 2017, p. 14.

[44]      Anna Brown, Director, Advocacy and Strategic Litigation, Human Rights Law Centre, Committee Hansard, Canberra, 25 January 2017, p. 29. Also see: Professor Patrick Parkinson, Committee Hansard, Sydney, 24 January 2017, p. 55.

[45]      Human Rights Law Centre, Submission 77, p. 20.

[46]      Coalition of Celebrant Associations, Submission 42, p. 3. Also see: Brian Richardson, National President, Australian Federation of Civil Celebrants, Committee Hansard, Melbourne, 23 January 2017, p. 44; Professor Patrick Parkinson, Committee Hansard, Sydney, 24 January 2017, p. 55.

[47]      Lauren Foy, Co-Convenor, New South Wales Gay and Lesbian Rights Lobby, Committee Hansard, Sydney, 24 January 2017, p. 27. Also see: Rodney Croome, who argued that civil celebrants have not asked for any other form of grandfathered exemption: Just.Equal, Committee Hansard, Sydney, 24 January 2017, p. 28.

[48]      Tamsyn Harvey, Acting First Assistant Secretary, Civil Justice Policy and Programmes Division, Attorney-General's Department, Committee Hansard, Canberra, 25 January 2017, p. 39.

[49]      Anna Brown, Director, Advocacy and Strategic Litigation, Human Rights Law Centre, Committee Hansard, Canberra, 25 January 2017, p. 30.

[50]      Dr Sharon Dane, Committee Hansard, Sydney, 24 January 2017, p. 25. Also see: Shelley Argent OAM, National Spokesperson, Parents and Friends of Lesbians and Gays, Committee Hansard, Sydney, 24 January 2017, p. 26, who commented that it would quickly be determined whether a celebrant was interested or not.

[51]      Anna Brown, Director, Advocacy and Strategic Litigation, Human Rights Law Centre, Committee Hansard, Canberra, 25 January 2017, p. 32.

[52]      Coalition of Celebrant Associations, Submission 42, p. [5]. Also see: Rationalist Society of Australia, which argued that it can be difficult to determine which marriage celebrants have religious beliefs: Submission 4, p. 3.

[53]      Lee Carnie, Lawyer, Human Rights Law Centre, Committee Hansard, Canberra, 25 January 2017, p. 25.

[54]      Professor Patrick Parkinson, Committee Hansard, Sydney, 24 January 2017, p. 55.

[55]      Dr Luke Beck, answer to question on notice (received 27 January 2017), p. 4.

[56]      Tamsyn Harvey, Acting First Assistant Secretary, Civil Justice Policy and Programmes Division, Attorney-General's Department, Committee Hansard, Canberra, 25 January 2017, pp. 36 and 37.

[57]      Attorney-General's Department, answer to question on notice (received 3 February 2017), p. 3 (italics in the original). Also see: Attorney-General's Department, Information Sheet–Recognised Denominations, January 2016, https://www.ag.gov.au/FamiliesAndMarriage/Marriage/Documents/Information-Sheet-Recognised-Denominations.pdf (accessed 8 February 2017).

[58]      Mark Fowler, Committee Hansard, Canberra, 25 January 2017, p. 20. Also see: Dr Greg Walsh, Committee Hansard, Sydney, 24 January 2017, p. 59.

[59]      For example: Liz Pforr, Vice-Chair, Coalition of Celebrant Associations, Committee Hansard, Melbourne, 23 January 2017, p. 43; Australian Human Rights Commission, Submission 72, p. 23.

[60]      Anna Brown, Director, Advocacy and Strategic Litigation, Human Rights Law Centre, Committee Hansard, Canberra, 25 January 2017, p. 31.

[61]      Marriage Commissioners Appointed Under the Marriage Act (Re Marriage Commissioners), 2011 SKCA3 (CANLII) at para 85, http://canlii.ca/t/2f6ng (accessed 8 February 2017). The Court noted that the constitutional validity of a single point entry system would need to be assessed. Also see: Toronto Officiants, http://www.torontoofficiants.com/ (accessed 8 February 2017).

[62]      Law Council of Australia, answer to question on notice (received 30 January 2017), p. 5. Also see: Lee Carnie, Lawyer, Human Rights Law Centre, Committee Hansard, Canberra, 25 January 2017, p. 23.

[63]      Professor Neil Foster, Committee Hansard, Sydney, 24 January 2017, p. 18.

[64]      Dr Luke Beck, Submission 52, p. 4.

[65]      Reverend Dr Margaret Mayman, National Executive Member, Uniting Church LGBTIQ Network, Uniting Church of Australia, Committee Hansard, Melbourne, 23 January 2017, p. 17. Also see: Reverend Dr Keith Mascord, Steering Committee Member, Equal Voices, Committee Hansard, Melbourne, 23 January 2017, p. 17.

[66]      For example: Dr Muriel Porter OAM, Submission 50, p. 1; The Religious Society of Friends (Quakers) in Australia, Submission 11, p. 1; Victorian Gay and Lesbian Rights Lobby, Submission 34, p. [2]; Just.Equal, Submission 59, p. [2].

[67]      Robin Banks, Anti-Discrimination Commissioner, Equal Opportunity Tasmania, Committee Hansard, Melbourne, 23 January 2017, p. 22. Also see: Just.Equal, Submission 59, p. [2]; Fiona McLeod SC, President, Law Council of Australia, Committee Hansard, Melbourne, 23 January 2017, p. 4.

[68]      Amnesty International, answer to question on notice (received 2 February 2017), p. 4.

[69]      Dr Greg Walsh, Committee Hansard, Sydney, 24 January 2017, p. 58. Also see: Institute for Civil Society, Submission 62, p. 10.

[70]      Dr Alex Deagon, Committee Hansard, Sydney, 24 January 2017, p. 60.

[71]      Professor Nicholas Aroney and Dr Joel Harrison, Joint Submission 152, pp. 2–3.

[72]      Institute for Civil Society, Submission 62, p. 10.

[73]      Institute for Civil Society, Submission 62, p. 4.

[74]      Professor Nicholas Aroney and Dr Joel Harrison, Joint Submission 152, p. 6.

[75]      Fiona McLeod SC, President, Law Council of Australia, Committee Hansard, Melbourne, 23 January 2017, p. 3.

[76]      Lizzi Price quoted by Stephanie Cousins, Advocacy and External Affairs Manager, Amnesty International, Committee Hansard, Melbourne, 23 January 2017, p. 19. Also see: Sally Goldner, who similarly commented on the mental health effect of 'negativity':  Executive Director, Transgender Victoria, Committee Hansard, Melbourne, 23 January 2017, p. 33.

[77]      Dr David Phillips, Founder, FamilyVoice Australia, Committee Hansard, Canberra, 25 January 2017, p. 12.

[78]      Amnesty International, Submission 46, p. 6. Also see: Robin Banks, Anti-Discrimination Commissioner, Equal Opportunity Tasmania, Committee Hansard, Melbourne, 23 January 2017, p. 20; Shelley Argent OAM, National Spokesperson, Parents and Friends of Lesbians and Gays, Committee Hansard, Sydney, 24 January 2017, p. 21.

[79]      Dr Mark Fowler, Proof Committee Hansard, 25 January 2017, p. 16.

[80]      For example: Law Council of Australia, Submission 74, p. 13; Anti-Discrimination Board of NSW, Submission 36, pp. [2‑3]; Victorian Gay and Lesbian Rights Lobby, Submission 34, p. [3]; Wilberforce Foundation, Submission, p. 5; Associate Professor Neil Foster, Submission 53, p. 6.

[81]      Professor Nicholas Aroney and Dr Joel Harrison, Joint Submission 152, p. 5.

[82]      Amnesty International, Submission 46, p. 6.

[83]      Natalie Cooper, Member of Steering Committee, Equal Voices, Committee Hansard, Melbourne, 23 January 2017, p. 13. Also see: Mark Fowler, Committee Hansard, Canberra, 25 January 2017, p. 16.

[84]      Professor Neil Foster, Committee Hansard, Sydney, 24 January 2017, p. 56.

[85]      For example: Australian Human Rights Commission, Submission 72, pp. 24–25.

[86]      Robin Banks, Anti-Discrimination Commissioner, Equal Opportunity Tasmania, Committee Hansard, Melbourne, 23 January 2017, p. 21.

[87]      Mark Fowler, Committee Hansard, Canberra, 25 January 2017, pp. 19–20.

[88]      Tamsyn Harvey, Acting First Assistant Secretary, Civil Justice Policy and Programmes Division, Attorney-General's Department, Committee Hansard, Canberra, 25 January 2017, p. 40.

[89]      Andrew Walter, Assistant Secretary, Civil Law Unit, Attorney-General's Department, Committee Hansard, Canberra, 25 January 2017, pp. 38–39.

[90]      Andrew Walter, Assistant Secretary, Civil Law Unit, Attorney-General's Department, Committee Hansard, Canberra, 25 January 2017, p. 38.

[91]      Most Reverend Peter Comensoli, Bishop, Australian Catholic Bishops Conference, Committee Hansard, Sydney, 24 January 2017, p. 12.

[92]      Attorney-General's Department, Submission 79, p. 5. Also see: Australian Human Rights Commission, who argued that the amendments would need to be consistent with Divisions 1 and 2 of the Sex Discrimination Act 1984 (Cth): Submission 72, p. 28.

[93]      Institute for Civil Society, Submission 62, p. 3 (emphasis in the original). Also see: Martyn Iles, Director, Human Rights Law Alliance, Committee Hansard, Canberra, 25 January 2017, p. 3. Also see: pp. 6–7.

 Chapter 3 - Compliance with Australia's international obligations

[1]        Absolute rights are: the right not to be subjected to torture, cruel, inhuman or degrading treatment; the right not to be subjected to slavery; the right not to be imprisoned for inability to fulfil a contract; the right not to be subject to retrospective criminal laws; the right to recognition as a person before the law; and the right to non-refoulement. 

[2]        Parliamentary Joint Committee on Human Rights, Annual Report 2013–14, p. 6.  As noted further below, the ICCPR, which Australia has ratified, and which contains the rights considered by this Inquiry, has its own regime for interpretation of limitation clauses that, whilst reflective of these principles, contain some distinctions.

[3]        Joslin v New Zealand, Communication No. 902/1999, U.N. Doc A/57/40 at 214 (2002), para 8.3, http://hrlibrary.umn.edu/undocs/902-1999.html (accessed 9 February 2017). While the case took a narrow consideration of the language in the Article it did not prevent the recognition of same-sex marriage, rather it did not impose a positive obligation on States to do so.

[4]        Hämäläinen v Finland [GC], Application No. 37359/09, 16 July 2014, http://tgeu.org/decision-by-grand-chamber-of-european-court-of-human-rights-in-h%C3%A4m%C3%A4l%C3%A4inen-v-finland/ (accessed 9 February 2017).

[5]        Schalk and Kopf v Austria, Application No. 3014/04, Council of Europe: European Court of Human Rights, 24 June 2010, para 105, http://www.refworld.org/docid/4c29fa712.html (accessed 9 February 2017).

[6]        The Witherspoon Institute, Public Discourse, Same-Sex Unions and the European Court of Human Rights, http://www.thepublicdiscourse.com/2015/05/14848/ (accessed 9 February 2017).

[7]        Oliari and Others v Italy (Oliari), Applications Nos. 18766/11 and 36030/11, Council of Europe: European Court of Human Rights, 21 July 2015, para 118, http://www.refworld.org/cases,ECHR,55af917a4.html (accessed 9 February 2017).

[8]        The Witherspoon Institute, Public Discourse, Same-Sex Unions and the European Court of Human Rights, http://www.thepublicdiscourse.com/2015/05/14848/ (accessed 9 February 2017).

[9]        For example: Amnesty International, Submission 46, p. 4; Rainbow Labor NSW, Submission 39, p. [1].

[10]      United Nations General Assembly, International Covenant on Civil and Political Rights, United Nations, Treaty Series, Vol. 999, 16 December 1966, p. 171, http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx  (accessed 9 February 2017). Also see: United Nations General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217A, Article 16, http://www.un.org/en/universal-declaration-human-rights/ (accessed 9 February 2017).

[11]      Joslin v New Zealand, Communication No. 902/1999, U.N. Doc A/57/40 at 214 (2002), http://hrlibrary.umn.edu/undocs/902-1999.html (accessed 9 February 2017).

[12]      Paula Gerber, Kristine Tay and Adiva Sifris, ‘Marriage: A Human Right for All?’ (2014) 36(4) Sydney Law Review 652.

[13]      Professor Patrick Parkinson AM, Submission 76, p. 5.

[14]      Joslin v New Zealand, Communication No. 902/1999, U.N. Doc A/57/40 at 214 (2002), para 8.3, http://hrlibrary.umn.edu/undocs/902-1999.html (accessed 9 February 2017).

[15]      Mark Fowler, Committee Hansard, Canberra, 25 January 2017, p. 14.

[16]      Institute for Civil Society, Submission 62, p. 3.

[17]      Castan Centre for Human Rights, Submission 63, Appendix A, p. 4.

[18]      Law Council of Australia, Submission 74, Supplementary Submission, p. 5.

[19]      Stephanie Cousins, Advocacy and External Affairs Manager, Amnesty International, Committee Hansard, Melbourne, 23 January 2017, p. 19.

[20]      Mr Mark Fowler, Answer to Question on Notice

[21]      Thomas Clark, Director of Law Reform, LGBTI Legal Service, Committee Hansard, Melbourne, 23 January 2017, p. 35.

[22]      Human Rights Law Centre, Submission 77, Annexure A, p. 38.

[23]      Schalk and Kopf v Austria, Application No. 3014/04, Council of Europe: European Court of Human Rights, 24 June 2010, para 61, http://www.refworld.org/docid/4c29fa712.html (accessed 9 February 2017).

[24]      Mr Mark Fowler, Answer to Question on Notice

[25]      Mr Mark Fowler, Answer to Question on Notice

[26]      Professor Patrick Parkinson, Submission 76, pp. 5-6.

[27]      Wilberforce Foundation, Submission 7, p. 6. Also see Appendix A, p. 8.

[28]      Mark Fowler, answer to question on notice (received 25 January 2017), pp. 6-7.

[29]      United Nations Human Rights Committee, CCPR General Comment No. 18: Non-discrimination, 10 November 1989, para 13, http://www.refworld.org/docid/453883fa8.html (accessed 9 February 2017).

[30]      United Nations Human Rights Committee, CCPR General Comment No. 18: Non-discrimination, 10 November 1989, para 13, http://www.refworld.org/docid/453883fa8.html (accessed 9 February 2017).

[31]      Fifth session (1949), sixth session (1950), eighth session (1952), tenth session A/2929, Chap. VI, 179.

[32]      Human Rights Law Alliance and Australian Christian Lobby, Submission 67, p. 4.

[33]      Professor Patrick Parkinson AM, Submission 76, Supplementary Submission, p. 5.

[34]      Mark Fowler, Submission 57, p. 3.

[35]      Mark Fowler, Committee Hansard, Canberra, 25 January 2017, p. 14.

[36]      The most recent affirmation of this position was the case of Oliari.

[37]      Mark Fowler, Submission 57, p. 3.

[38]      Joslin et al v New Zealand, Communication No. 902/1999, U.N. Doc. A/57/40 at 214 (2002), Appendix, para 2.

[39]      Australian Lawyers for Human Rights, Submission 51, p. 2.

[40]      Human Rights Law Centre, Submission 77, Annexure A, p. 37.

[41]      Australian Human Rights Commission, Submission 72, pp. 10–11.

[42]      Paula Gerber, Kristine Tay and Adiva Sifris, 'Marriage: A Human Right for All?' (online), The Sydney Law Review, Vol. 36 No. 4, December 2014, p. 651, http://search.informit.com.au/documentSummary;dn=853902989989735;res=IELAPA (accessed 9 February 2017).

[43]      Paula Gerber, Kristine Tay and Adiva Sifris, 'Marriage: A Human Right for All?' (online), The Sydney Law Review, Vol. 36 No. 4, December 2014, p. 652, http://search.informit.com.au/documentSummary;dn=853902989989735;res=IELAPA (accessed 9 February 2017).

[44]      Professor Patrick Parkinson AM, Submission 76, Supplementary Submission, p. 2.

[45]      Mark Fowler, answer to question on notice (received 27 January 2017), p. 4

[46]      Belgium, Denmark, Finland (effective from 2017), France, Iceland, Ireland, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom.

[47]      Professor Patrick Parkinson AM, Submission 76, p. 6.

[48]      For example: Law Council of Australia, Submission 72, p. 7; Amnesty International, Submission 46, p. 4; Equal Opportunity Tasmania, Submission 32, p. 6.

[49]      Human Rights Law Centre, Submission 77, p. 6.

[50]      Sangeeta Sharmin, Australian Lawyers for Human Rights, Committee Hansard, Canberra, 25 January 2017, p. 13.

[51]      Dr Greg Walsh, Committee Hansard, Sydney, 24 January 2017, p. 58.

[52]      Mark Fowler, Submission 57, p. 4.

[53]      Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, ALRC Report 129, December 2015, p. 132.

[54]      United Nations General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217A, Articles 2 and 18, http://www.un.org/en/universal-declaration-human-rights/ (accessed 9 February 2017).

[55]      United Nations Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4, http://www.refworld.org/docid/4672bc122.html (accessed 15 February 2017).

[56]      United Nations Human Rights Committee, CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), CCPR/C/21/Rev.1/Add 4, 30 July 1993, para. 8, http://www.refworld.org/docid/453883fb22.html (accessed 9 February 2017).

[57]      Human Rights Law Centre, Submission 77, p. 10.

[58]      Anglican Church Diocese of Sydney, Submission 18, p. 6 (emphasis in original). Also see: Wilberforce Foundation, Submission 7, p. 3; Greek Orthodox Archdiocese of Australia and The Assembly of Canonical Orthodox Bishops of Oceania, Submission 1, Appendix A p. [1]; FamilyVoice Australia, Submission 2, p. 4.

[59]      Associate Professor Neil Foster, Submission 53, p. 2.

[60]      For example: Damian Wyld, Chief Executive Officer, Marriage Alliance, Committee Hansard, Canberra, 25 January 2017, p. 2.

[61]      Anna Brown, Human Rights Law Centre, Committee Hansard, Canberra, 25 January 2017, p. 21.

[62]      United Nations General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217A, Article 18, http://www.un.org/en/universal-declaration-human-rights/ (accessed 9 February 2017).

[63]      United Nations General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217A, Article 18, http://www.un.org/en/universal-declaration-human-rights/ (accessed 9 February 2017).

[64]      United Nations General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217A, Article 26, http://www.un.org/en/universal-declaration-human-rights/ (accessed 9 February 2017).

[65]      Professor Patrick Parkinson AM, Submission 76, Supplementary Submission, p. 7.

[66]      Mark Fowler, Committee Hansard, Canberra, 25 January 2017, p. 17.

[67]      Human Rights Law Centre, Submission 77, p. 25.

[68]      Section 37 of the Sex Discrimination Act 1984 (Cth).

[69]      United Nations Human Rights Committee (HRC), CCPR General Comment No. 12: Article 1 (Right to Self-determination), The Right to Self-determination of Peoples, 13 March 1984, http://www.refworld.org/docid/453883f822.html (accessed 15 February 2017).

[70]      Law Council of Australia, Submission 74, p. 13.

[71]      Human Rights Law Centre, Submission 77; Australian Human Rights Commission, Submission 72; and, Australian Marriage Equality and Australians 4 Equality, Submission 66.

[72]      Equal Voices, Submission 45, p. 5.

[73]      Wilberforce Foundation, Submission 7, p. 2.

[74]      Equal Opportunity Tasmania, Submission 32, pp. 15–16.

[75]      Bishop Stead, Anglican Church Diocese of Sydney, Committee Hansard, Sydney, 24 January 2017, p. 12.

[76]      Bishop Comensoli, Australian Catholics Bishops Conference, Committee Hansard, Sydney, 24 January 2017, p. 12.

[77]      Australians For Equality and Australian Marriage Equality, Joint Submission 66, p. 20.

[78]      Lee v Ashers Baking Co Ltd [2015] NICty 2 (19 May 2015).

[79]      For example: Institute for Civil Society, Submission 62, p. 4; Associate Professor Neil Foster, Submission 53, p. 5; FamilyVoice Australia, Submission 2, pp. 7–10.

[80]      Andrew Walter, Assistant Secretary, Civil Law Unit, Attorney-General's Department, Committee Hansard, Canberra, 25 January 2017, p. 38; Ed Santow, Human Rights Commissioner, Australian Human Rights Commission, Committee Hansard, Sydney, 24 January 2017, p. 37.

[81]      Laura Sweeney, Specialist LGBTI Adviser, Australian Human Rights Commission, Committee Hansard, Sydney, 24 January 2017, p. 37. Also see: Andrew Walter, Assistant Secretary, Civil Law Unit, Attorney-General's Department, Committee Hansard, Canberra, 25 January 2017, p. 38.

[82]      Ed Santow, Human Rights Commissioner, Australian Human Rights Commission, Committee Hansard, Sydney, 24 January 2017, p. 37.

[83]      Professor Nicholas Aroney and Dr Joel Harrison, Submission 152, p. 5.

[84]      Human Rights Law Centre, Submission 77 and, Australian Human Rights Commission, Submission 72.

[85]      United Nations Human Rights Committee, CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), 30 July 1993, CCPR/C/21/Rev.1/Add.4, para 4, http://www.refworld.org/docid/453883fb22.html (accessed 9 February 2017).

[86]      Anna Brown, Human Rights Law Centre, Committee Hansard, Canberra, 25 January 2017, p. 32.

[87]      Elizabeth Wing, Anti-discrimination Board of New South Wales, Committee Hansard, Sydney, 24 January 2017, p. 18.

[88]      Castan Centre for Human Rights Law, Submission 63, p. 3.

[89]      Victorian Government, Submission 212, p. 5.

[90]      Australian Human Rights Commission, Submission 72, p. 21.

[91]      United Nations General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217A, Article 18, http://www.un.org/en/universal-declaration-human-rights/ (accessed 9 February 2017).

[92]      Mark Fowler, Committee Hansard, Canberra, 25 January 2017, p. 20.

[93]      Anna Brown, Australian Human Rights Centre, Committee Hansard, Canberra, 25 January 2017, p. 23.

[94]      Associate Professor Neil Foster, Committee Hansard, Sydney, 24 January 2017, pp. 48–49.

[95]      Sharon Dane, Committee Hansard, Sydney, 24 January 2017, p. 24.

[96]      Uniting Church LGBTIQ Network, Committee Hansard, Melbourne, 23 January 2017, p. 13.    

[97]      Australian Human Rights Commission, Submission 72, p. 20. Also see: Jamie Gardiner, Member of LIVout, Law Institute of Victoria, Committee Hansard, Melbourne, 23 January 2017, p. 6; Equal Opportunity Tasmania, Submission 32, p. 13; Transgender Victoria, Submission 5, p. 1; Ms Shelley Argent OAM, PFLAG, Submission 3, p. 1; ACT Government, Submission 19, p. [3]; Just.Equal, Submission 59, p. [2]; Rainbow Families Victoria, Submission 65, p. 3.

          Note that the secular nature of a marriage solemnised by a civil celebrant has been judicially considered internationally: Law Council of Australia, Submission 74, pp. 9–10.

[98]      Wilberforce Foundation, Submission 7, pp. 1­–2. Also see: Mark Fowler, Submission 57, pp. 12–13.

[99]      United Nations Human Rights Committee, CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), 30 July 1993, CCPR/C/21/Rev.1/Add.4, para 2, http://www.refworld.org/docid/453883fb22.html (accessed 9 February 2017).

[100]    For example: Institute for Civil Society, Submission 62, p. 4; Associate Professor Neil Foster, Submission, p. 5; FamilyVoice Australia, Submission 2, pp. 7–10; Dr Augusto Zimmerman, Submission 54, pp. 8–9.

[101]    Associate Professor Neil Foster, Submission, p. 6. Also see: Martyn Iles, Director, Human Rights Law Alliance, Committee Hansard, Canberra, 25 January 2017, p. 3.

[102]    Associate Professor Neil Foster, Submission 53, p. 6. Also see: Greek Orthodox Archdiocese of Australia and The Assembly of Canonical Orthodox Bishops of Oceania, Submission 1, Appendix A p. [2]; FamilyVoice Australia, Submission 2, p. 6; Wilberforce Foundation, Submission 7, p. 5.

[103]    Apostolic Church Australia, Submission 10, p. 1.

[104]    Christopher Brohier, Founder, Wilberforce Foundation, Committee Hansard, Melbourne, 23 January 2017, p. 11.

[105]    Institute for Civil Society, Submission 62, p. 4.

[106]    Anna Brown, Human Rights Law Centre, Committee Hansard, Canberra, 25 January 2017, p. 23.

[107]    The Human Rights and Anti-Discrimination Bill 2012 intended to consolidate the five Commonwealth Acts that deal with human rights and anti-discrimination laws, as the anti‑discrimination regime was then 'unnecessarily complex and difficult to navigate': Hon. Nicola Roxon MP, Attorney-General, and Senator the Hon. Penny Wong, Minister for Finance and Deregulation, 'Clearer, simpler, stronger anti-discrimination laws', Joint Media Release, 20 November 2012, http://pandora.nla.gov.au/pan/132822/20130204-0704/www.attorneygeneral.gov.au/Media-releases/Pages/2012/Fourth%20Quarter/20November2012-Clearersimplerstrongerantidiscriminationlaws.html (accessed 6 February 2017).

[108]    Journals of the Senate, No. 124–21 November 2012, p. 3344.

[109]    D. Hurst, 'Discrimination laws go back to the drawing board', Sydney Morning Herald, 20 March 2013, http://www.smh.com.au/federal-politics/political-news/discrimination-laws-go-back-to-the-drawing-board-20130320-2genj.html (accessed 9 February 2017).

[110]    Ed Santow, Human Rights Commissioner, Australian Human Rights Commission, Committee Hansard, Sydney, 24 January 2017, p. 38. Also see: Anglican Church Diocese of Sydney, which argued that a substantive Act of Parliament would be necessary to adequately protect religious freedom: answer to question on notice (received 31 January 2017), p. 2.

[111]    Australian Human Rights Commission, answer to question on notice (received 31 January 2017), p. 1.

[112]    Subsection 29JA(2) of the Public Order Act 1986 (UK).

[113]    Associate Professor Neil Foster, Submission 53, p. 9.

[114]    Sharon Rodrick, Institute for Civil Society, Committee Hansard, Melbourne, 23 January 2017, p. 26.

[115]    Dr Sharon Rodrick, Research Analyst, Institute for Civil Society, Committee Hansard, Melbourne, 23 January 2017, p. 25. Also see: Professor Patrick Parkinson AM, Submission 76, p. 9; Dr David van Gend, President, Australian Marriage Forum, Committee Hansard, Melbourne, 23 January 2017, p. 52.

[116]    Institute for Civil Society, Submission 62, p. 4.

[117]    Dr Sharon Rodrick, Research Analyst, Institute for Civil Society, Committee Hansard, Melbourne, 23 January 2017, pp. 27–28.

[118]    Anglican Church Diocese of Sydney, answer to question on notice (received 31 January 2017), pp. 1–2.

[119]    Australian Human Rights Commission, answer to question on notice (received 31 January 2017), p. 2; Institute for Civil Society, answer to question on notice (received 30 January 2017), pp. 8–11.

[120]    Mark Fowler, Submission 57, p. 17.

Additional Comments

[1]        The Hon. Philip Ruddock MP, Attorney-General, House of Representatives Hansard, 27 May 2004, p. 29356.

[2]        Ms Nicola Roxon, House of Representatives Hansard, 16 June 2004, p. 30507.

[3]        Office of the United Nations High Commissioner for Human Rights Universal Declaration of Human Rights,http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf (accessed 14 February 2017).

[4]        David van Gend, Stealing From a Child, Connor Court Publishing, Brisbane, 2016, p. 9.

[5]        Uluru Bark Petition, Uluru Bark Petition, http://ulurubarkpetition.com/ (accessed 14 February 2017).

[6]        Recognition of Aboriginal Customary Laws (Australian Law Reform Commission Report 31), Aboriginal Marriages and Family Structures,12 June 1986, p. 134, http://www.alrc.gov.au/publications/12.%20Aboriginal%20Marriages%20and%20Family%20Structures/marriage-traditional-aboriginal-societie (accessed 14 February 2017).

[7]        Australian Marriage Forum, Submission 73.

[8]        Kate Faust, Dear Justice Kennedy: An Open Letter from the Child of a Loving Gay Parent, http://www.thepublicdiscourse.com/2015/02/14370/ (accessed 14 February 2017).

[9]        Millie Fontana-Fox, Child of Gays Millie Fontana speaks at Parliament House, Canberra, https://www.youtube.com/watch?v=7g4vphO1SkE (accessed 14 February 2017).

[10]      Paul Sullins, 'The Unexpected Harm of Same-Sex Marriage: A Critical Appraisal, Replication and Re-analysis of Wainright and Patterson’s Studies of Adolescents with Same-sex Parents',British Journal of Education, Society & Behavioural Science, vol.11, no. 2, 2015, pp. 1-22, http://www.sciencedomain.org/download/MTA0NDNAQHBm.pdf (accessed 14 February 2017).

[11]      Castan Centre for Human Rights Law, Submission 63, p.

[12]      Office of the High Commissioner for Human Rights, International Covenant on Civil and Political Rights, http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf (accessed 14 February 2017).

[13]      Office of the High Commissioner for Human Rights, General Comment No. 18: Non-discrimination, http://ccprcentre.org/doc/ICCPR/General%20Comments/HRI.GEN.1.Rev.9(Vol.I)_(GC18)_en.pdf (accessed 14 February 2017).

[14]      Mark Fowler, Submission 57, p. 3.

[15]      Senator Mark Furner, Senator Ursula Stephens, Senator Helen Polley, Senator Alex Gallacher, Senator Catryna Bilyk, Senator Mark Bishop, Senator Glenn Sterle , Dissenting Report By Individual Labor Senators, https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2010-13/marriageequality2012/report/~/media/wopapub/senate/committee/legcon_ctte/completed_inquiries/2010-13/marriage_equality_2012/report/d03.ashx (accessed 14 February 2017).

[16]      Office of the High Commissioner for Human Rights, International Covenant on Civil and Political Rights, http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf (accessed 14 February 2017).

[17]      Ms. Juliet Joslin et al. v. New Zealand, Communication No. 902/1999, U.N. Doc. A/57/40 at 214 (2002).

[18]      Australian Human Rights Commission, Submission to the Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill, https://www.aph.gov.au/DocumentStore.ashx?id=d0a12a9a-5c3f-42eb-9519-2372396e2166&subId=462693 (accessed 14 February 2017).

[19]      Hämäläinen v. Finland [GC] - 37359/09 Judgment 16.7.2014 [GC]

[20]      Ms. Juliet Joslin et al. v. New Zealand, Communication No. 902/1999, U.N. Doc. A/57/40 at 214 (2002).

[21]      Ms. Juliet Joslin et al. v. New Zealand, Communication No. 902/1999, U.N. Doc. A/57/40 at 214 (2002).

[22]      Professor Patrick Parkinson, Submission 76, p. 6.

[23]      David Crowe, 'Same-sex marriage event off: threats to hotel staff', The Australian, 17 September 2016, http://www.theaustralian.com.au/news/nation/samesex-marriage-event-off-threats-to-hotel-staff/news-story/d45bd0f9e9a774fc3e3d0741f176da13 (accessed 14 February 2017).

[24]      Dennis Shanahan, 'Catholic bishops called to answer in anti-discrimination test case', The Australian, http://www.theaustralian.com.au/national-affairs/state-politics/catholic-bishops-called-to-answer-in-antidiscrimination-test-case/news-story/b98439693f2f4aa17aca9b46c7bda776 (accessed 14 February 2017).

[25]      Office of the High Commissioner for Human Rights, International Covenant on Civil and Political Rights, http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf (accessed 14 February 2017).

[26]      Parliament of Australia, The Australian Constitution Chapter 5. The States, https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/chapter5 (accessed 14 February 2017).

[27]      Parliament of Australia, The Australian Constitution Chapter 5. The States, https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/chapter5 (accessed 14 February 2017).

[28]      Office of the High Commissioner for Human Rights, International Covenant on Civil and Political Rights, http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf (accessed 14 February 2017).

[29]      Office of the High Commissioner for Human Rights, International Covenant on Civil and Political Rights, http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf (accessed 14 February 2017).

[30]      Dr Sharon Rodrick, Research Analyst, Institute for Civil Society Committee Hansard, 23 January 2017, p. 27.

[31]      Senator Mark Furner, Senator Ursula Stephens, Senator Helen Polley, Senator Alex Gallacher, Senator Catryna Bilyk, Senator Mark Bishop, Senator Glenn Sterle , Dissenting Report By Individual Labor Senators, https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2010-13/marriageequality2012/report/~/media/wopapub/senate/committee/legcon_ctte/completed_inquiries/2010-13/marriage_equality_2012/report/d03.ashx (accessed 14 February 2017).

[32]      Greg Sheridan,'Christian churches drifting too far from the marketplace of ideas', The Australian, http://www.theaustralian.com.au/opinion/columnists/greg-sheridan/christian-churches-drifting-too-far-from-the-marketplace-of-ideas/news-story/e641fab1f62b1a63b08cc1ec75634af5 (accessed 15 February 2017).

[33]      Dr Augusto Zimmerman, Submission 54, p. 9.