rights in a way that society both respects and recognises that all people have the human right to enjoy their religious beliefs but equally all people have the right not to be discriminated against because of their sexual preference. However, none of these rights is absolute and one set of rights does not trump the others. Sometimes that’s a very diffi cult and sensitive balance to achieve—achieving that balance is not going to please everybody.


Many would argue that marriage is just a legal defi nition in modern Australia. Do you think this is true in Australia today and is partly the reason why the current Marriage Act may be interpreted as discriminatory to same-sex couples?


As I also often represent the churches and people opposed to same-sex marriage, I have to do my job as a barrister and put all the arguments fairly, so I try to be neutral in saying sometimes what my personal views are—I try to look at what the legal issues or the human rights issues are. But at the end of the day when I’ve looked at all of the issues and I’ve looked at where we are as a modern society, and taking into account that human rights are fundamental in terms of ensuring our society operates fairly, if people feel that they are not being treated fairly and if people feel they are second-class citizens because of a particular immutable characteristic, then I think it’s very important that as a society we ensure that everybody is treated with dignity and equality.


It’s like a demarcation: it’s basically about having a respect for all points of view. Advocates on both sides of the debate have to respect that people are going to have beliefs and views that might be diff erent to their own.


Civil unions have been raised as a compromise for same-sex couples instead of allowing them to marry. Do you think this is an acceptable alternative to same-sex marriage or does it merely reinforce divisions in the community on this issue?


I don’t think it is an acceptable compromise in the long term.


In the short term, if the proposed amendments to the Marriage Act are defeated, and you want at least something in place, civil unions would be a good transitional compromise. It’s better than nothing but I accept for the same-sex community that it is not good enough.


Sometimes transitional arrangements can be helpful in allowing a society to get used to a state of aff airs and be more willing to accept stronger legal recognition further down the track. From a human rights perspective, a good example is Canada.


Canada introduced a statutory bill of rights to recognise human rights in 1960. After a period of time, Canada then moved to constitutionally entrench human rights in the Charter of Rights of 1982. It is highly unlikely that Canada would have taken the step to entrench human rights in the Constitution if there had not been a transitional period.


Is Australia likely to see any signifi cant reform in the area of same-sex marriage in the current term of Parliament?


I think it’s inevitable that there will be recognition for same-sex marriage. But the question might be when? Ultimately, it will be a social drive rather than a political drive that will determine a change in the law. By this I mean politicians will follow rather than lead the change.


The other reason I think it is inevitable is because same-sex couples can legally marry overseas and as that becomes more and more common there are going to be impacts, notwithstanding section 88EA of the Marriage Act which says overseas same-sex marriages must not be recognised. The government must address the consequences of permitting same-sex couples to marry overseas. If legally married same-sex couples live in Australia, then the law should also accord those couples the same recognition as other married couples, including the right to divorce.


In the common law and historically from a religious setting, the purpose of marriage is procreation. The religious argument is that married same-sex couples, absent of reproductive technology, are not capable, in that relationship, of procreation.


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