LCA: Laws on same-sex marriage require ‘careful balance’

By Melissa Coade|02 February 2017

The Law Council of Australia has told a parliamentary inquiry that the exposure draft for new same-sex marriage laws must respect non-discrimination principles when weighed against freedom of religion protections.

A careful balance should be the focus of any amendment to Commonwealth marriage laws, the Law Council of Australia (LCA) has told a parliamentary inquiry.

Speaking of a proposed bill to legalise same-sex marriage in Australia, the legal representative body appeared before a senate select committee in Melbourne last week.

LCA president Fiona McLeod SC said the group supports moves that would see Commonwealth marriage laws changed to lift discriminatory barriers facing same-sex couples.

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Any amendments to federal legislation must be made carefully, to ensure that anti-discrimination principles are not eroded by the right to express religious beliefs, she suggested.

Ms McLeod added that there is international precedent in human rights law to support the view that freedom of religious expression should not override protections against discrimination.

“The freedom to express one’s religious beliefs must be carefully balanced where it intrudes upon other rights, such as the fundamental right to be free from discrimination on the grounds of sexual orientation or gender identity,” Ms McLeod said.

“Under international case law, protections against discrimination have taken priority over freedom of religious expression in the provision of secular and commercial services,” she said.

The LCA’s submission concerning the need to carefully balance human rights principles specifically objected to an exemption listed in the proposed law.

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The exposure draft bill includes a provision that allows ‘religious bodies and organisations’ to be exempt from making facilities, goods or services available for the purpose of solemnisation of a same-sex marriage. This exemption covers providers of photography and catering services.

“We believe that this draft provision, as with the draft exemption for civil celebrants, has no proper basis in human rights law and should be removed,” Ms McLeod said.

“This proposed exemption would erode fundamental principles of non-discrimination and represent a disproportionate extension of existing exemptions to discrimination laws for ‘religious bodies’ in defined and limited circumstances.”

The LCA put its recommendations to the parliamentary inquiry a few short weeks after the initial call for submissions.

A senate select committee invited comment on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill in December last year. The due date for written submissions was set about one month later, in early January of this year.  

The LCA’s national human rights committee, the Queensland Law Society and the Law Institute of Victoria all contributed to the submissions.

LCA: Laws on same-sex marriage require ‘careful balance’
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