David Fawcett (SA, Liberal Party) Share this | Hansard source

by leave—I, and also on behalf of Senator Paterson, move amendments on sheet 8330 together:

(1) Clause 1, page 1 (lines 6 and 7), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment (Definition and Protection of Freedoms) Act 2017".

(2) Schedule 1, page 17 (before line 4), before item 63, insert:

62C Subsection 37(1 ) ( d)

Repeal the paragraph, substitute:

(d) any other act or practice of a body established for religious purposes, being an act or practice that is consistent with the doctrines, tenets or beliefs of that religion or is because of the religious susceptibilities of adherents of that religion.

62D At the end of section 37

Add:

(3) Despite any law (including any provision of this Act and any law of a State or Territory) a body established for religious purposes includes, and shall be deemed to have always included, without limitation, a body:

(a) that is a:

  (i) not for profit entity; or

  (ii) charity under the Charities Act 2013, including any public benevolent institution (regardless of whether any of the charitable purposes of the entity is advancing religion);

(b) where that body:

  (i) is established by or under the direction, control or administration of a body established for religious purposes; or

  (ii) is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; or

  (iii) is a body to which subsection (4) applies.

(4) A charity that has a charitable purpose pursuant to the Charities Act 2013 that is not advancing religion may be a body established for religious purposes through advancing that other charitable purpose:

(a) where that other charitable purpose is an effectuation of, conducive to or incidental or ancillary to, and in furtherance or in aid of, the advancement of its religious purpose; or

(b) where the advancement of religion is an effectuation of, conducive to, or incidental or ancillary to, and in furtherance or in aid of, that other charitable purpose.

(5) Subsection (4) does not limit the circumstances in which a charity that has a charitable purpose that is not advancing religion may be a body established for religious purposes through advancing that other charitable purpose.

62E Subsections 38(1), (2) and (3)

Omit "in order to avoid injury to", substitute "because of".

62F After section 38

Insert:

38A Determining when an act or practice is consistent etc.

(1) For the purposes of paragraph 37(1) (d), an act or practice is consistent with the doctrines, tenets or beliefs of that religion if the body established for religious purposes holds a belief that it is consistent with the doctrines, tenets or beliefs of that religion and that belief is not fictitious, capricious or an artifice.

(2) For the purposes of paragraph 37(1) (d), an act or practice is because of the religious susceptibilities of adherents of that religion if the body established for religious purposes holds a belief that it is because of the religious susceptibilities of adherents of that religion and that belief is not fictitious, capricious or an artifice.

(3) For the purposes of section 38, an act or omission is because of the religious susceptibilities of adherents of that religion or creed if the institution holds a belief that the act or omission is because of the religious susceptibilities of adherents of that religion and that belief is not fictitious, capricious or an artifice.

(4) A body or institution holds a doctrine, tenet or belief if it has adopted that doctrine, tenet or belief. Without limiting the foregoing, a body or institution may adopt a doctrine, tenet or belief by:

(a) including the doctrine, tenet or belief in its governing documents, organising principles, statement of beliefs or statement of values; or

(b) adopting principles, beliefs or values of another body or institution which include the doctrine, tenet or belief; or

(c) adopting principles, beliefs or values from a document or source which include the doctrine, tenet or belief; or

(d) acting consistently with that doctrine, tenet or belief.

38B Sections 37, 38 and 38A are intended to " cover the field "

(1) Despite any law, but subject to subsection (3), it is the intention of Parliament that, in order to recognise the protections, rights, privileges and entitlements of a body or institution to which sections 37, 38 or 38A apply, and to ensure that such protections, rights, privileges and entitlements are recognised equally and without discrimination in all States and Territories, sections 37, 38 and 38A operate:

(a) to cover the field in relation to those protections, rights, privileges and entitlements; and

(b) to provide a complete, exhaustive and exclusive statement of the law relating to those protections, rights, privileges and entitlements; and

(c) to exclude and limit the operation of the laws of the States and Territories in relation to those protections, rights, privileges and entitlements.

(2) For the avoidance of doubt, and without limiting subsection (1), but subject to subsection (3), despite any law, if a protection, right, privilege or entitlement granted, or a limitation provided for under section 37, 38 or 38A of this Act, is inconsistent with a protection, right, privilege or entitlement granted, or a limitation provided for, under a law of a State or Territory, this law shall prevail, and the State or Territory law shall, to the extent of the inconsistency, be invalid.

(3) The protections, rights, privileges and entitlements of a body or institution to which sections 37, 38 or 38A apply are in addition to the protections, rights, privileges and entitlements provided under any law of the Commonwealth or a State or Territory. Nothing in subsections (1) or (2) shall exclude or limit the operation of the laws of the Commonwealth or a State or a Territory that are more protective of those protections, rights, privileges and entitlements.

(3) Schedule 1, item 63, page 17 (line 27), omit "conforms to", substitute "is consistent with".

(4) Schedule 1, item 63, page 17 (line 28), omit "necessary to avoid injury to", substitute "because of".

As I move this group of amendments, I'd like to note that this is the last of the group of amendments that Senator Paterson and I have put forward, which is in quite stark contrast to the diatribe that's been directed against those of us who have voted 'no' in this. We were told that we were going to be filibustering, seeking to delay and frustrate the will of the Australian people. We have actually put forward considered amendments. We've been very disciplined in our contributions, seeking not to take every 15-minute block available but to make the case and then to answer questions or correct facts. Can I just say to senators present and to the Australian public that that, generally speaking, is characteristic—there are always exceptions—of how people in the community who support the traditional definition of marriage went about the campaign.

I struggle to think of a time when you saw people who support the traditional definition of marriage barricading events and seeking to prevent 'yes' campaigners from meeting or advocating or speaking. I struggle to think of times when 'no' campaigners interrupted meetings and had advocates jumping on stages with banners. I struggle to think of a time when on university campuses 'no' campaigners were overturning tables and threatening violence. So throughout this whole campaign right through to tonight, when we've been dealing with these amendments, I think the Australian public can look and see that those who support traditional marriage are far from the bigoted people who seek to visit violence on others or to unnecessarily delay and frustrate this process, that these amendments have been put forward in good faith because of genuine concerns that have been raised by members of the Australian community who gave evidence to the Senate select committee and who have been actively engaged in the 'no' campaign.

In good faith I'll move this last set of amendments, and I'll seek to have people actually listen to the debate. I'm disappointed, as are other members, that those opposite aren't able to exercise their conscience on this debate.