Edward Santow says ‘principles of non-discrimination and equality before the law demand that civil marriage be extended beyond heterosexual couples’

This article is more than 3 years old

This article is more than 3 years old

An international legal consensus is emerging that will demand marriage equality be extended beyond heterosexual couples, according to Australian human rights commissioner, Edward Santow.

Santow, who began a five-year term as commissioner in August, made the comments in a speech to the Equality Campaign’s interfaith forum in Canberra on Thursday.

Santow said after his address that the Australian Human Rights Commission (AHRC) opposed the same-sex marriage plebiscite because of the principle that human rights questions should not be determined by “majoritarian” methods.

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In the speech, Santow cited article 26 of the international covenant on civil and political rights, that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law”.

He said although some precedents suggested this did not protect marriage equality, those decisions were a “historical minority”.

“On the contrary: there’s a broad emerging consensus from respected and authoritative international bodies as well as courts in comparable jurisdictions to Australia, including the United States, that the principles of non-discrimination and equality before the law demand that civil marriage be extended beyond heterosexual couples.”

But Santow said that international human rights law provided only guidance on that point, not a clear-cut answer, and other rights, including freedom of religion, had to be considered.

Religious freedom was protected by the fact ministers of religion would not be required to solemnise a marriage, he said.

Santow said it seemed “very unlikely” the plebiscite will take place to resolve the same-sex marriage issue.

The plebiscite was blocked in the Senate on 7 November by Labor, the Greens, the Nick Xenophon Team and Derryn Hinch.

The prime minister, Malcolm Turnbull, has said the government has “no plans” to resolve the issue by another means but has never ruled out other methods of resolving it, such as the issue returning to the Coalition party room or a free vote on same-sex marriage.

“All sides of parliament now need to resolve how to move forward on the issue,” Santow said.

In comments to Guardian Australia, Santow said the “better view” of what international human rights law urges is that same-sex marriage be legal.

“What we’ve said is that equality before the law would be better reflected in Australian law if civil marriage equality were permitted by our Marriage Act, and proper protection of religious freedom were included in that legislation.”

Asked about Turnbull’s comments when introducing the plebiscite bill that whether the Australian people voted yes or no in the plebiscite it “will be the right answer because it is theirs”, Santow said it was difficult to comment directly on the speech.

“The orthodox principle of human rights law is that human rights reform should not be a matter of majoritarianism.

“A better way to make sure our laws are human rights compatible is through the ordinary process of parliament.”

He said the AHRC opposed the plebiscite, and had been clear for “several years” that a plebiscite is not the best way to achieve human rights reform.

“But fundamentally we’re more interested in the substantive issue.”

In a panel at the forum, Santow praised the government’s marriage equality bill exposure draft which proposed changing the definition of marriage to a union between “two people”.

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But he suggested it could be improved by making it clear no court would inquire into “trying the religious beliefs of a religious organisation”, to determine if their objections to same-sex marriage were genuinely held.

He said there were “difficult questions” about how far that objection could extend, and it could be “just as problematic” if it extended beyond marriage to “other issues”.

Marriage equality opponents, such as Marriage Alliance, have claimed legalising same-sex marriage would decrease religious freedom in other spheres such as increasing “PC bullying” in the workplace.

Santow said the AHRC would help promote respectful debate and said it was “unhelpful” for marriage equality advocates to label respectful opponents bigots or homophobes.

He said although social change in Australia is often prosaic rather than revolutionary, he hoped the principles of the “fair go” and egalitarianism would come to the fore in the next stage of the same-sex marriage debate.