It’s agreed: legislating for same-sex Marriage would be neither quick nor simple if human rights are to be respected

Yesterday I tabled the report of the Senate Select Committee that had been examining the impact on religious freedoms should a Parliament ever decide to legislate to change the definition of marriage.

The Turnbull Government remains committed to the policy of a plebiscite so that the Australian people have the say on whether the definition of marriage should change, despite the defeat in the Senate last year.

Having blocked the Government’s legislation for a plebiscite, the Labor, Greens and Xenophon parties voted to form a Select Committee to examine the exposure draft prepared by the Attorney General as part of the plebiscite documentation.

The Committee took evidence from a broad range of witnesses, many of whom had vastly different views concerning the definition of marriage. Despite this diversity of views, the Committee reached consensus in a number of areas.

The committee confirmed that Australia is not being discriminatory by defining marriage to be between a man and a woman. The United Nations Human Rights Committee has made it clear that so long as a nation state has legislation to recognise and protect same-sex relationships-as Australia has-then the right to freedom from discrimination and equality before the law is fulfilled.

The committee also found that there is no specific right to same-sex marriage because under the International Covenant on Civil and Political Rights, marriage (ICCPR Article 23) is defined as being between a man and a woman. The European Court of Human Rights has made a number of judgements in recent years supporting this view.

The committee also found however that under law, there is nothing prevent a parliament to legislate to change the definition of marriage and that should that occur, the rights of individuals to their freedom of thought, conscience and religion (ICCPR Article 18) would be enlivened.

While the committee identified a few areas where we agreed on solutions (such as some terminology or the need for a broader approach to protect religious freedom rather than treating it as an exemption), the majority of the report identifies areas where the committee agreed that the issues dividing opinion were complex, requiring careful consideration if religious freedoms were to be protected and rights balanced.

The last time the Parliament considered issues of this complexity (2012), the then Attorney General abandoned the effort stating that “”There is a lot of work to be done and I am not going to put a timeframe on it. We are intent on getting this right, that is what it comes down to. Picking up all the suggestions that have been made requires detailed considerations. Meticulous attention must be applied to striking the appropriate balance between the right to freedom of speech and the right to be protected from discrimination. This is fundamental to our democracy”.

Balancing freedom of thought, conscience and religion with the right to be protected from discrimination will be equally if not more complex. Proponents of changing the definition of marriage who say: “Let’s have that vote. It’s pretty simple” or that it is “a simple overdue change that sends a powerful message” are putting our plural and tolerant democracy at risk.

Ends.