FRANK BRENNAN. Same sex marriage and freedom of religion.


NZ Prime Minister Bill English was being interviewed by Fran Kelly on ABC RN Breakfast on Monday morning.  Fran asked him about same sex marriage which is now law in New Zealand. He stressed that freedom of religion is important. She observed: “You voted ‘No’ in 2013 but you’ve said if the vote was held now, you would vote ‘yes’. Does that mean that the New Zealand experience of marriage equality has been a positive one for your country?”  Prime Minister English replied: “It’s been implemented. There are a number of people taking advantage of it. We haven’t had quite the same challenges around free speech and religious freedom as here but I think it’s really important that that’s maintained. But it’s a pretty pragmatic approach really. It’s in law. I accept that that is the case: we have same sex marriage in New Zealand and we’re not setting out planning to change it.”

“There is a clear legal reason why New Zealand has not had the same challenges around free speech and religious freedom. That’s because they already had in place a national law recognising and protecting these rights. We Australians don’t. And that’s the thorny issue. That’s the issue being aired so constantly now by John Howard and Tony Abbott.  In the past, they have been strong opponents of any statutory bill of rights.

The New Zealand Bill of Rights Act 1990 provides:

  1. Freedom of thought, conscience, and religion – Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.
  2. Freedom of expression – Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
  3. Manifestation of religion and beliefEvery person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

We have no such provisions at a national level in Australia. Before, or at the same time as, legislating amendments to the Marriage Act, our politicians need to attend to this shortfall in Australian human rights protection.

I don’t think this is best done during an emotional national plebiscite campaign. I think it is better attended to by the Parliament once the public has given the go ahead for consideration of legal reform. Of course, the best way would have been for the government to publish proposed legal protections prior to the conduct of the plebiscite. But that wasn’t done.  The government has been on notice about this problem for some time.

Back in November 2016, the Minister for Foreign Affairs, the Hon Julie Bishop MP, asked the Joint Standing Committee on Foreign Affairs, Defence and Trade to inquire into and report on The status of the human right to freedom of religion or belief.  The committee received 340 submissions, including those from some of the nation’s leading academic constitutional lawyers.  For example, Professor George Williams wrote to the committee on 1 March 2017:

“Australia is exceptional. Indeed, we stand alone in being the only democracy without some form of national bill of rights incorporating protection of freedom of religion. The same problem applies to a number of other rights, including those that underpin our democracy, such as freedom of speech and association. Put simply, Australia does not protect freedom of religion and other rights as is thought appropriate in every other like nation.

“This should be remedied. Without stronger protection, freedom of religion, along with other basic rights, are vulnerable to abrogation by Parliament. In addition, public debates and policy discussions are not informed by legal structures and standards that ensure freedom of religion and belief is given the status in Australian society that it deserves.”

Professor Carolyn Evans, who was Dean and Harrison More Professor of Law at Melbourne Law School at the University of Melbourne at the time, told the parliamentary committee on 7 June 2017:

“We need a more comprehensive human rights act. I have been saying that for a long time. I do not have any naive assumptions that that will change quickly. It is part of the problem. We have cherry picked a couple of rights which have been given a very strong status, and others have been given a lesser status in various ways. The danger at the moment is that various religious groups say, ‘We need a religious freedom act,’ then the media say, ‘We need a media protection act,’ and you could end up multiplying the problem rather than resolving it. To me it makes sense to incorporate it all into a single act. That would not make the need for discrimination law simply disappear, because that is a very specific set of issues, particularly around employment and some core services. Ensuring all Australians have access to those fundamentals is still important. That is why I argue for a human rights act that includes not only religious freedom but other rights as well.

Those in the Liberal Party who are espousing a ‘Yes’ vote without further ado could blow their campaign, big time.  They need to get out there with a solid commitment to legislating for freedom of conscience, religion, belief, expression etc.  All equivalent countries such as UK, US, Canada and NZ have some form of national protection of these rights in place, constitutional or statutory.  We don’t.  So when something like same sex marriage comes along, there is a vacuum that requires attention.  Voters fall into four groups:

  1. Yes NOW
  2. Yes, providing you do X
  3. No, not until you do X
  4. No, Never.

If Malcolm Turnbull continues fudging it (with Bill Shorten’s support), the risk is that voters in category 2 will coalesce into categories 3 and 4.  But if they come out with a clear statement on the freedoms, those in category 3 could migrate to join categories 1 and 2.

This ABS optional survey has a long way to run, and it’s not just about same sex marriage.  Messrs Howard and Abbott have made sure of that.  Our politicians need to commit to legislative protection of freedom of religion once the ‘yes’ vote is in.  This legislative protection will not be part of the Marriage Act.  But it needs to be put on the books at the same time as any amendment to the Marriage Act.

Fr Frank Brennan SJ AO is CEO of Catholic Social Services Australia


Frank Brennan SJ is the CEO of Catholic Social Services Australia and the Rector of Newman.

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6 Responses to FRANK BRENNAN. Same sex marriage and freedom of religion.

  1. Avatar Dr John CARMODY says:

    Leaving aside the “Bill of Rights” question, I simple don’t understand the Brennan concerns.
    I simply do not see why a change in the civil and legal definition of “marriage” has the slightest bearing on religious freedom. Section 51 of the Constitution clearly gives the Commonwealth Parliament the power to make laws concerning “Marriage” and “Matrimonial causes”. This is bald and clearly stated; there are no caveats of qualifications about this power.
    Furthermore, Section 116 strictly precluded the Commonwealth from passing any act which precludes “the free exercise of any religion”. This also seems to be pretty clear and seems to deal with Dr Brennan’s concerns. I don’t see, at all, that any further legislation is necessary. Were “marriage equality” to be legislated, this would be a purely civil matter, without any influence on the prerogatives of the churches.
    Those advocating a “No” vote surely need to find other arguments. The one about religious freedom is plainly false and, indeed, seems intended as simply a “red herring”.

    • Avatar J Knight says:

      S51 does give those powers – what is at issue is whether the High Court – and indeed parliament- can uniaterally redefine what marriage without a s128 referendum and whether a majority of Australia’s voters would accept the divorce of marriage from the reality of marriage.

      I suggest anyone interested in this matter look at the 1975 Family Law Act s43.
      Clearly the High Court didn’t!

  2. Avatar Peter Johnstone says:

    Frank, you’re unnecessarily conflating two serious but essentially separate issues as is shown by your own intention to vote ‘Yes’, regardless of whether the government should “publish proposed legal protections prior to the conduct of the plebiscite.” Let’s just focus on treating people of different sexuality fairly and equally; marriage equality will send a powerful signal about the equality all. As Bishop Vincent Long has said, “we must commit ourselves to the task of reaching out to our LGBTI brothers and sisters, affirming their dignity and accompanying them on our common journey towards the fullness of life and love in God.” And yes, let’s continue to demand a bill of rights which will also protect the rights of people of different sexuality.

  3. Avatar J Knight says:

    It’s all very well to quote those lovely rights the NZ people have, but, surely if a NZ citizen was to be – on Father Frank’s sliding scale of the Media, Elites, Diabolical Index of Acceptability (MEDIA) – a “FB Category 4 patriot” and started to advocate for a change/repeal of the marriage laws in NZ those rights would be in conflict with the “FB Category 1 patriot” who is backed by force of law?

    Of course, we can rely on the High Court to sort that mess out? Oh for the days of Lionel Levy…not a lot has changed in terms of legal outcomes. That said, it just may be that “Lionel’s Law” – The Family Law Act (s43) that may see the High Court – currently in breach of the clause 5 provision of the Constitution preamble -and effectively in Constitutional schism – brought to heel?

    Unless the GG sees fit to try s61 (his own exclusive personal power – why the rest of the Executive and High Court feels it is the Executives is beyond me – as a means of defending the Constitution when Parliament and the Judiciary have failed in protecting s128 rights?

    Anyway, as a proper conservative, the NZ PM is clearly uncomfortable with his predecessor’s “Cameronesque” moment, but, in the absence of too many provocations (such as the removal of the NZ Family First’s charitable status) he will live with it to keep the peace!

    Meanwhile, when I go to the grocers I will continue to live in hope that when I ask for an apple I will not get an orange – that would be like SSM – divorced from reality!

  4. Not for the first time New Zealand is decades ahead of Australia in passing legislation designed to enhance and protect the rights of all its citizens. The debate over marriage equality is only the latest example. I once attended a Bar dinner in NZ with a High Court (equivalent) conservative Judge (circa 2001) who told me that he had originally been against a Bill of Rights, but experience had taught him that it his original concerns were misplaced. Oh that there could be a similar intellectual honesty among our politicians. Instead we have Abbott and Howard (among others) exhibiting precisely the opposite, and we are all much the poorer for it.

    • Avatar J Knight says:

      I think Bob Carr is a serious opponent to ‘rights’ being enshrined too.

      Not sure about NZ being decades ahead – seems strange that so many of them are prepared to time travel and call Australia home?

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