International Human Rights and Anti-Discrimination Branch
Robert Garran Offices
3-5 National Circuit
BARTON ACT 2600
Fax: 02 6141 4925
From: The Celebrants Network Inc.
Submission re: Consolidation of Commonwealth Anti–Discrimination Laws
Specific area of TCN Inc concern.
• "Exceptions and Exemptions – anti-discrimination laws provide a framework to establish complaints of unlawful discrimination. However, not all discrimination is unlawful and there may be circumstances where it is appropriate to discriminate between people on the basis of attributes which would otherwise be protected. This section looks at key issues relating to exceptions and exemptions, including the use of a general limitations clause, inherent requirements and genuine occupational qualifications, religious exemptions and temporary exemptions." 1
The The Celebrants Network Inc is predominantly concerned about the way in which
- Australia addresses discrimination on the basis of religious belief in its Constitution, in its laws and its programs’ delivery
- The exemption based upon religious belief is used both by taxpayers’ monies and religious organisations to support and further discriminate on the grounds of "Different or No Religious Belief" (that in turn supports discrimination upon the basis of gender as well as other attributes described in the Universal Declaration of Human Rights Article 2 19482 )
- The Marriage Act 1961, Regulations and Marriage Program discriminate against independent civil and non-aligned religious marriage celebrants and the marrying public who choose to be married by independent celebrants
- The Discussion Paper fails to address the issue of discrimination on "no religious belief", especially given the multi-cultural and secular nature of the Australian community.
PAGE 43: 161. The Government does not propose to remove the current religious exemptions, apart from considering how they may apply to discrimination on the grounds of sexual orientation or gender identity.3
Page 9: 10. The Government has made it clear that this exercise will not lead to a reduction in existing protections in federal anti-discrimination legislation. In considering options for reform, the Government will keep the following principles in mind:
- a reduction in complexity and inconsistency in regulation to make it easier for individuals and business to understand rights and obligations under the legislation
- no reduction in existing protections in federal anti-discrimination legislation
- ensuring simple, cost-effective mechanisms for resolving complaints of discrimination, and
- clarifying and enhancing protections where appropriate.
So Australia does have an obligation to address this area that this Discussion Paper fails to address.
Also the Recommendations of the recent Human Rights Consultation Report4, specifically Recommendation 8 ‘Human rights in practice’ that (in part) states
The Committee recommends as follows:
- that the Federal Government develop a whole-of-government framework for ensuring that human rights—based either on Australia’s international obligations or on a federal Human Rights Act, or both—are better integrated into public sector policy and legislative development, decision making, service delivery, and practice more generally'
The intellectual proposition, that a person who has no religious belief can not be protected because the Australian Constitution only protects people with religious beliefs, is illogical. The opposite of "religious belief" is "no religious belief", "not an alternative religious belief".
Thus the government must address areas and practices where discrimination of "people with no religious belief" does exist.
There can be an argument made for the case that Australia's tolerance of difference in religious belief is admirable and in keeping with the spirit of the Universal Declaration of Human Rights Article 2.2 Certainly Australia does not have as strict a divide between Church and State as do America or the United Kingdom.
However one needs to appreciate the context in which
- The Constitution was written. i.e. late 1800 hundreds when people with no religious belief were uncommon, and thought to be "sinners' or "fallen from grace" or "criminals" anyway.
- The Universal Declaration of Human Rights Article 2 was written. At the end of World War 2 the blatant discrimination against the Jews, and other minority groups, on the basis of religion and race was undeniable. And in this context done by "non-religious" government/s. There are many examples of such abuses.
The underlying assumption is that people with non-religious belief already had their rights as human beings, but “no-religious belief” should not to be condoned or supported to deny people their rights as human beings if they held religious beliefs.
The measure under Human Rights Law is judged, is like any law, is how people behave in the real world.
Human Rights Law must be judged on fair, equitable and humane treatment based upon "All human beings are born free and equal in dignity and rights"4 and thus "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction" 2, not on some theory that does not translate into the real world.
In addressing the consolidation of these Acts, RDA (race) SDA (sex) DDA (disability) and ADA (age), the issue of religious discrimination must be addressed.
Many religions are patriarchal in nature and as such are discriminatory on the basis of sex/ gender. eg. religious beliefs such as "women are inferior" , "women and children as male property" and "women's roles only valid in the areas of sexual service to males, motherhood and domestic duties".
This also condones discrimination on the basis of marital status and age. Such attitudes do little to uphold human rights and prevent abuse of women and children (physical, psychological, social and spiritual). Some religions uphold marriage of girls and boys under the age of consent in Australia (ie 18 years or 16 years with court approval) and forced marriages. The latter may even be an extension of the rape of a woman that is compounded by the requirement that she then must marry her attacker.
Many religions also discriminate on the basis of race, poverty, class and disability viewing these conditions as "punishment form God for past or present sins" of the individual person, rather than a failure of care on behalf of the wider society to have fair and equitable systems for the management of the community's resources.
The Attorney General is also responsible for Family Law and funds a number of programs aimed at reducing Domestic Violence and other family related abuses. Thus the Department needs to be concerned about supporting belief systems that condone any abusive treatment of Australian citizens, especially women, children and people with disabilities.
The TCN Inc. assumes submissions from other organisations will explore these points in greater depth.
2. The exemption based upon religious belief is used both by taxpayers monies and religious organisations to support and further discrimination on the grounds of "Different or Non-Religious Belief" (that in turn supports discrimination upon the basis of gender as well as other attributes described in the Universal Declaration of Human Rights Article 2 19482).
The Attorney General must also take into account the increasing trend of state and federal governments to outsource and fund programs to the private or non-profit sector, where many of the non-profit organisations are religious or based upon religious belief.
In this way, tax payers money is being used to support and further discrimination rather than work towards the "Elimination of Intolerance and Discrimination based on Religion or Belief".
It can be argued that the tax benefits do likewise.
Another aspect of this discrimination based upon "religious belief" is the underlying assumption by many religious people, and especially the fundamentalist ones, that "people with no religious belief" are not ethical, lack "good (as in religious)" morals and therefore can not be trusted to play any major part in the local or broader community, social and cultural development of Australia.
The delivery of the Chaplains in Schools program was a major example of this underlying assumption. The difficulty in providing Ethics Classes in schools in NSW is another example.
Surely the most important attributes for a civilised society are courteous, fair and non-discriminatory behaviours practiced by all citizens, regardless of their beliefs in terms of the importance of the "after-life" and the concept of the "God" or "Greater Power" or whatever the "Mystery" actually is or not.
Such issues are of extreme importance in a democratic multicultural society such as Australia.
The TCN Inc assumes submissions from other organisations will explore these points in greater depth.
3. The Marriage Act 1961, Regulations and Marriage Program discriminate against independent civil and non-aligned religious marriage celebrants and the marrying public who choose to be married by independent celebrants.
The recent Consultations conducted by the Attorney General's Department have highlighted discriminatory aspects of the Commonwealth Marriage Act and specifically the way in which different classes of marriage celebrants are authorised and regulated under the Marriage Act.
Both the peak body the Coalition of Celebrant Associations (CoCA) Inc. and our association The Celebrants Network Inc. have raised these matters with the Attorney General's Department via submissions presented in January 2012. See Appendices 1 and 2 respectively for Summaries of Recommendations and links to their full submissions.
The TCN Inc. recommended:
That the Commonwealth Attorney General remove discrimination from the Marriage Act and Regulations, in principle and practice, based upon “non or neutral religious belief” as well as “religious belief” as regards the criteria for validation of the marriage by ensuring that the same criteria are required of all classes of marriage celebrants and all marrying couples to ensure that:
- all couples are treated equally with respect to the basic criteria for the validation of a marriage
- the wording of the key components of the marriage ceremony is in simple, plain English
- Compliance as regards Sections 45 and 46 does not question the validity of a marriage on the basis of the specific wording of the declaration
- all marriage celebrants are dealt with fairly and equitably as regards Compliance measures.
That, in addition to the CoCA guiding principles, the Attorney General applies the following principles in addressing Cost Recovery for the purpose of “increasing professionalism”.
- All marriage celebrants are providing a government service to the community on behalf of the Federal Government under the Marriage Act 1961. As such the aims and delivery of the program need to have the best interests of the community as its highest priority.
- All marriage celebrants and marrying couples need to be treated with the same respect and upon the same underlying principles, whether the ceremony is conducted within a religious context or not. Note marriage was originally in Western culture, and is in Australia, a civil (not religious) function governed by one Commonwealth Marriage Act.
- The Commonwealth Attorney General’s Office and its Department have a leadership role in the areas of justice for all citizens and the removal of all forms of discrimination.
- The Commonwealth Attorney General’s Department has a responsibility to ensure that all aspects of the Marriage Celebrant Program operate in a fair and equitable manner and that cost recovery does not use ‘loop holes’ in government policy to continue unfair practices.
- The primary profession through which marriage services need to be delivered is that of a family and community focused celebrant, whether religious or not, and where marriage ceremonies are part of a range of ceremonies delivered by the profession. That is, marriage celebrancy is a sub-set of the broader professional role of ‘Family and Community Celebrant’. i.e. Civil Celebrancy as a profession fits within the context of the three original professions of Ministry, Law, and Medicine.
- The potential for Civil Celebrants to assist other government goals in the areas of human rights, social inclusion, physical and mental heath, and the prevention of domestic violence and child abuse should not be adversely affected by the way in which the Marriage Celebrant program is perceived and administered.
- Compliance measures should be fair and should not be used to discriminate against independent civil marriage celebrants who should not have to meet more rigorous standards than those that apply to recognized religious celebrants.
- Compliance measures need to be based upon a well designed and non-discriminatory program that is designed to improve professionalism of the delivery of ALL marriage services, rather than building
The Commonwealth Marriage Act is one central piece of legislation around which the development of the fabric of our society can be influenced. The role of Marriage Celebrants in the delivery of marriage service to the Australia community is one that has been undervalued, and in regard to Commonwealth Appointed Marriage Celebrants devalued in the last decade. That is not to say that the Departmental officers are responsible to this situation. Rather the general devaluing of marriage and the lack of community education about the role of Commonwealth Appointed Marriage Celebrants, being a very new social program, has lead to major changes in the underlying principles upon which some marriage celebrants were appointed and treated.
The TCN Inc. argues that the "just a business model" of marriage celebrancy
- has been unsuccessful in meeting the aims of the 2003 changes
- treats classes of marriage celebrants, who provide the same service under law, differently in terms of appointment and compliance
- discriminates against Commonwealth Appointed Marriage Celebrants especially as regards conditions upholding their continued appointment
- discriminates against the marrying public, who choose the services of a Commonwealth Appointed Marriage Celebrants in a number of ways, but specifically Sections 45 and 46 of the Marriage Act.
To reduce this discrimination based upon "no religious belief" or "non-recognised religious belief", the TCN Inc. has proposed a number of recommendations, including that:
- a professional model of celebrancy be the basics of planning for all marriage services and the role of all marriage celebrants (Recommendation 2)
- State appointed marriage celebrants are professional celebrants who are "employed" by state (Registries of Birth, Deaths and Marriages) or by religious organisations (Recognised Religious organisations)
- Commonwealth Appointed Marriage Celebrants are professional celebrants "in private practice" , and that
- fees or recompense for services given, should not be the only criteria upon which to define the model of celebrancy.
- have the same basic level of training as regards Marriage Law, and Marriage Registration. (Recommendation 3)
- have Conflict of Interest provisions based on a professional model of celebrancy (Recommendation 4)
- be required to adhere to the same Code of Practice. (Recommendation 5)
- be required to complete Ongoing Professional Development (Recommendation 6)
- be required to utilize the Marriage Law and Celebrant Website’s “Celebrant Only” section for planning, program delivery and compliance (Recommendation 7and 27)
- be subject to the same procedures for information distribution about marriage, marriage related services, and complaints about celebrants. (Recommendation 8)
- contribute to Cost Recovery of the Marriage Law and Celebrant Section (Recommendation 28, 29 , 30 and 31)
- Form 13A be used as a strategy to increase the compliance of all celebrants in providing
- information about relationship education and support services,
- information about Marriage according to Australian Law
- information about the couple’s rights to complain about services supplied by the marriage celebrant,
- encouraging marriage celebrants to belong to celebrant associations or networks if they do not belong to a celebrant-related organisation. (N.B. Some celebrants’ associations do take religious as well as civil celebrants.) (Recommendation 9)
- the principles underlying the Length of Notice, Shortening of Time for Notice, and the Documentation required to be sighted by all celebrants be improvedd. (Recommendation 10)
- Section 42 of the Act be changed to recognise Australian passports in conjunction with Citizenship papers for overseas born Australian Citizens (Recommendation 11)
- improved procedures for all marriage celebrants be established to verify the identity of the parties applying to be married. (Recommendation 12)
- additional categories for Shortening of Time be granted for Established relationships and Pregnancy (Recommendation 13)
- the role of the Prescribed Authorities be more clearly defined (Recommendation 14)
- additional Classes of Prescribed Authorities be created available after-hours and weekends to process requests for Shortening of Time. (Recommendation 15)
- education and information for Prescribed Authorities and their Staff be improved (Recommendation 16)
- Section 47 of the Act be changed to grant all marriage celebrants the same freedom of choice in service provision (Recommendation 17)
- Section 46 of the Act be changed to require Authorised celebrants make their status clear and explain nature of marriage relationship (Recommendation 18)
- Marriage be defined as “Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, entered into voluntarily on the understanding that this relationship is for life.” (Recommendation 18)
- Should same sex marriage be approved that marriage be defined as “Marriage, according to law in Australia, is the union of two adults to the exclusion of all others, entered into voluntarily on the understanding that this relationship is for life.” (Recommendation 18)
- Section 45 of the Act to ensure the Form of all Marriage Ceremonies includes a simple consent process for validation of the marriage (Recommendation 19)
- processes to minimize identity fraud, not discriminate against people with "names by common usage" or 'overseas born citizens" etc be improved (Recommendation 20)
The TCN Inc submission:
- argues that the role of the modern professional celebrant (whether religious or civil) does include a community development and education function that could be better utilised by government to support human and civil rights and improve the community's awareness and understanding of their human and civil responsibilities.
- offers two practical strategies to extend the opportunities for ALL celebrants to engage with their communities, namely
- the availability of “blank” decorative Wedding Anniversaries Certificates with the Commonwealth of Australia (similar to Form 15) via either Canprint or the State Registry Offices. (Recommendation 29)
- the development of a Coming of Citizenship Age Pack to be utilised by all suitably celebrants to be available via Canprint and to include:
- an appropriately worded and designed Coming of Citizenship Age Certificate
- a copy of the Australian Constitution (and /or a Summary thereof)
- an Electoral Voting Pack including a Summary of the Australian Voting system
- a Citizenship (Human) Rights and Responsibility booklet
( Recommendation 31)
- recommends that, in addition to the CoCA recommendations on the Certificate IV in Celebrancy, the Attorney General refer this recommendation to the appropriate branches of her Department and/ or other government departments to advocate for the development of following new VET units to be available for students in a range of Certificate IV courses, especially in the Community Services and Health Sector, including students of the Certificate IV in Celebrancy.
The TCN Inc has made submissions promoting the role of Coming of Age Citizenship Ceremonies both at the level of family celebrations and at a community level via an annual Citizenship Ceremony on or near the 17th September each year.
- UNIT 1 Human Rights, Discrimination, and Citizenship – Evolution of separation of church and state; Human Rights’ history and examples of the ways that belief systems about the meaning of life and causes of human behaviour have impacted and still do impact the treatment of women, people with disabilities, people with mental illness, people vulnerable to life style pressures etc. Rights and Responsibilities of Citizens in a secular multicultural society
- UNIT 2 Spirituality, Religion, and Community - Relationship between belief, faith, knowledge, and behaviour; Secular (Civil) Spirituality, New Age and other Forms of Spirituality, Comparative Religion, Cults, Advantages and Disadvantages, Stages of Religious/Spiritual/Psychological Growth, Examination of spiritual and religious beliefs and their impacts on human rights and society.
- UNIT 3 Rites of Passage and Stages of Human Growth to Maturity (physical, mental, spiritual and social, cultural) - Symbolism, Dependence, Independence, Interdependence issues. Their relation to alcohol and other drug use, mental health, violence, etc. Examination of the SA program used in some schools, called The Rite Journey (a unique educational programme designed to support the development of self-aware, vital, responsible and resilient adults) http://theritejourney.com.au/
- UNIT 4 Role of Community Citizenship Celebrant - Role of a Community Citizenship Celebrant; Australian Constitution; Basic structure of Australia’s legal system; History and Law as related to Citizenship; Rights & Responsibilities of Citizenship; Citizenship Ceremonies and Programs; Knowledge of factors affecting the social and cultural development of all citizens; local community structures and their relationships with federal, state, and local government; research, liaison and referral skills,
- UNIT 5 Role of Civil Chaplain for schools, hospitals etc. - The role of civil chaplain; its benefits and limitations; support structures for the role; principles of empowerment of people to take responsibility for the well-being of self and others; problem identification and referral; knowledge and understanding of well-being structures; advantages and limits of providing emotional/spiritual support and leadership, crisis management principles; values clarification and analysis; leadership skills, motivational skills.
These submissions are available on the TCN Inc website:
- School Chaplaincy Report http://www.civilcelebrationsnetwork.org.au/submissions/706-school-chaplaincy-report
- National Preventive Health Taskforce http://www.civilcelebrationsnetwork.org.au/submissions/687-national-preventive-health-taskforce-submission
- Final HRC submission http://www.civilcelebrationsnetwork.org.au/submissions/331-final-hrc-subs
TCN Inc's Submission re Social Inclusion http://www.civilcelebrationsnetwork.org.au/submissions/833-social-inclusion-submission
Fundamental to all these submission is the premise that
- as a new country Australia needs to develop more 'mature' ways of celebrating major life rites of passage and community events
- civil as well as religious celebrants could play a better role in supporting and educating about human and civil rights and responsibilities
Such units would particularly be relevant to the Health and Welfare sector, Schools Chaplains and Marriage, Family and Funeral Celebrants.
Once available, then outsourced government programs could require that the managers and staff involved in government funded programs to have done suitable training in the same way that Occupational Health and Safety or other requirements are built into funding agreements.
The TCN Inc understands that social change takes time. However given the privatisation of much of our media, education, health and other services, the education in human rights needs a strategic community based approach that works with the community over time to raise standards.
4. The Discussion Paper fails to address the issue of discrimination on "no religious belief", especially given the multi-cultural and secular nature of the Australian community.
In the context of the discussion above the TCN Inc submits the following recommendations:
1. That the Attorney General facilitate a process to remove the discrimination on the basis of “no religious belief” in its Constitution, in its laws and its programs’ delivery.
2. That the Attorney General narrow the sphere of "exemption for religious belief' ensure that taxpayers' monies are being used to support and further discrimination based upon "no religious belief" or discrimination based upon "an alternative religious belief" to that held by the organisation or agency in receipt of government funding.
3. That the Attorney General narrow the sphere of "exemption for religious belief' to ensure that those organisations and agencies in receipt of government funding, have funding guidelines that ensure
- those bodies have submitted Code of Conduct upon which staff will be supervised to ensure recipients of government funded programs will not be discriminated against on the basis of sex, race, disability or age.
- require the managers and staff involved in government funded programs have specific training in the history, theory and practice of Human Rights and Responsibilities and the effect of Discrimination in general and as it relates to different religious beliefs in particular.
5. That the Attorney General Version facilitate with other Ministers, especially the Ministers for Citizenship, Health, Youth, Social Inclusion, Age and Mental Health, the planning and delivery of Coming of Citizenship Age Ceremonies at a family level via celebrants and at a community level with an Annual "Welcome to Community" Coming of Citizenship Age Ceremony for all 18 year olds on or near Citizenship Day on September 17th.
6. That the Attorney General implement the recommendations in their recent submissions Attorney General of both the peak celebrant body in Australia, The Coalition of Celebrant Associations (CoCA) Inc, and the The Celebrants Network Inc to remove discrimination in principle and practice against Commonwealth appointed marriage celebrants and the marrying public.
For further information, please contact us as below.
Chairperson TCN Inc
The Celebrants Network Inc.
PO Box 3113
Robertson NSW 2577
Phone: 02 4885 2393
1 Consolidation of Commonwealth Anti–Discrimination Laws - Discussion Paper Reference Page 7
2. Universal Declaration of Human Rights 1948 http://www.un.org/rights/50/decla.htm
Universal Declaration of Human Rights Article 2:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, status of the country or territory to which a person belongs, or other status. (2)
3 Consolidation of Commonwealth Anti–Discrimination Laws
- Discussion Paper Reference Page 40
4 Universal Declaration of Human Rights 1948
Universal Declaration of Human Rights Article 1"
All human beings are born free and equal in dignity and rights.
5. The Universal Declaration of Human Rights Article 16 states:
- Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
- Marriage shall be entered into only with the free and full consent of the intending spouses.
- The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
‘All are equal before the law and are entitled without any discrimination to equal protection of the law” (7)
“presumed innocent until proved guilty” (11)
“the right to leave any country, including his own, and to return to his country” (13).
Coalition of Celebrant Associations (CoCA) Inc Submission to Attorney General re: Cost Recovery and Professional Celebrant Fee.
The Celebrants Network Inc Submission to Attorney General re: Cost Recovery and Professional Celebrant Fee.