Australia: The refusal to provide for same-sex marriage does not breach the right to equality and non-discrimination

A shock outcome emerged during the release of the much anticipated Report of the Senate Inquiry into the Commonwealth Government’s Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill.

To the surprise of many, the Committee – comprising Coalition, Labor, Greens and NXT Senators – agreed on unprecedented commitments to religious freedom. Many of these would apply outside of the context of same-sex marriage and reach beyond current protections.


The Inquiry was not addressing the question of whether same-sex marriage should be introduced into law.

This is an outcome that has been largely overlooked in the mainstream media, but will certainly inform future Parliamentary debate.

A close reading of the report is difficult to reconcile with widely-reported claims that it represents a consensus for change to the definition of marriage. To the contrary, the Inquiry was not addressing the question of whether same-sex marriage should be introduced into law. It was established only to consider the implications for religious freedom if same sex marriage were to be so introduced.

For that purpose, the Committee had to consider whether the right to equality extends to marriage. Significantly, all Committee members agreed that “under current human rights instruments and jurisprudence, there have been no decisions that oblige Australia to legislate for same-sex marriage. That said, there has been no suggestion that there are any legal impediments to doing so.”

“The refusal to provide for same-sex marriage does not breach the right to equality and non-discrimination.”

The Committee observed that in Joslin v New Zealand, the sole case in which the United Nations Human Rights Committee (UNHRC) had considered the issue of same sex marriage, it had “determined under Article 23(2) that the right to marry under the International Covenant on Civil and Political Rights (ICCPR) is confined to a right of opposite-sex couples to marry due to the interpretation that the terms ‘men and women’ restricted marriage, by definition, to opposite sex couples.

“Given this definitional construct, the refusal to provide for same-sex marriage does not breach the right to equality and non-discrimination.”

Importantly, the Committee quoted University of Sydney Professor of law Patrick Parkinson’s comment that the conclusion of the UNHRC has important implications for religious freedom: “Since the right to marry a person of the same gender is not required by the ICCPR, and the principle of non-discrimination in Article 26 can be satisfied by providing equal rights other than the right to marry, the right to maintain religious beliefs and practices in relation to religious understandings of marriage is not limited by any right of a person to marry.”

The Committee did not reach agreement on whether the religious freedoms of business owners and employees should be recognised in same sex marriage legislation. The Committee noted Nicholas Aroney (Professor of Constitutional Law at The University of Queensland) and Dr Joel Harrison’s (Macquarie University Law School) concerns that “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).”

The report provides a very helpful overview of the demands of equality…

On this matter, and others on which agreement was not reached, the Committee Chair David Fawcett stated that “the Committee did agree that the issues dividing opinion were complex, requiring careful consideration if religious freedoms were to be protected and rights balanced.”

Turning to the consequential effects of same-sex marriage, the Committee raised the prospect of an anti-detriment clause as a means to protect the religiously convicted. This was in light of the “experience internationally and in Australia, where the same-sex marriage debate and/or the legalisation of same-sex marriage has led to adverse action against individuals who hold and manifest the religious or conscientious belief that marriage is between a man and a woman.”

The report provides a very helpful overview of the demands of equality and also the religious, free speech and associational freedoms which are enlivened in the marriage discussion. Significant agreement was reached on the necessary protections to religious freedom. Even in the areas in which agreement was not reached, the Report stands as a very comprehensive detailed statement of Australia’s international obligation. It will serve as a valuable reference point for future Parliamentary consideration.