Alex Gallacher (SA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the bill as amended be agreed to.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

by leave—I and at the request of Senator Fawcett move amendments (1) to (10) on sheet 8327 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) Clause 2, page 2 (table item 2), omit the table item, substitute:

(3) Schedule 1, item 1, page 4 (lines 4 to 16), omit the item, substitute:

1 After section 2

Insert:

2A Objects of this Act

(1) It is an object of this Act to create a legal framework that:

(a) provides that marriage means:

  (i) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or

  (ii) the union of 2 people to the exclusion of all others, voluntarily entered into for life; and

(b) fulfils Australia's international obligations, and addresses matters of international concern, including:

  (i) protecting the rights of freedom of thought, conscience, religion, expression and association in relation to the holding, expressing, or acting on, certain beliefs; and

  (ii) preventing discrimination against people and entities in relation to holding, expressing, or acting on, certain beliefs; and

  (iii) making it unlawful for people or entities to be deprived of benefits, or to be subjected to detriments, obligations or sanctions, for exercising freedom of thought, conscience, religion, expression and association in holding, expressing, or acting on, certain beliefs; and

(c) protects freedoms described in subparagraphs (b) (i), (ii) and (iii); and

(d) eliminates, as far as possible, discrimination against persons or entities on the ground of religious or conscientious belief; and

(e) ensures, as far as practicable, that everyone has the same rights to equality, regardless of religious or conscientious belief, as the rest of the community.

Note: The objects of this Act relate to the marriage power and, to the extent that the objects provide for the protection of freedoms, to the external affairs power.

(2) For the purposes of paragraph (1) (b), Australia's international obligations include obligations under the following:

(a) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23), including Articles 18, 19 and 22;

(b) the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40), including Article 5;

(c) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5), including Article 13;

(d) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4).

(3) In addition, the elimination of intolerance and discrimination on the basis of religion or belief, including as evidenced by the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by the General Assembly of the United Nations on 25 November 1981 (resolution 36/55) is a matter of international concern.

2B Alternative constitutional basis for Part VAA

(1) Without prejudice to its effect apart from this section, Part VAA also has effect as provided by this section.

Corporations power

(2) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision:

(a) confined to a person that is a corporation (within the meaning of paragraph 51(xx) of the Constitution); or

(b) confined to a person:

  (i) who is an officer or employee of such a corporation; and

  (ii) in connection with the person's duties as an officer or employee that relate to the trading activities of the corporation as a trading corporation or the financial activities of the corporation as a financial corporation (as the case may be).

External affairs power

(3) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to giving effect to the international obligations and matters of international concern including those mentioned in section 2A.

Trade and commerce power

(4) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place in the course of, or in relation to, trade or commerce (within the meaning of paragraph 51(i) of the Constitution).

(5) Subsection (4) does not apply to the extent (if any) that its application would infringe section 92 of the Constitution.

Note: Section 92 of the Constitution requires trade among the States to be absolutely free.

Territories power

(6) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place wholly or partly in a Territory.

Telecommunications power

(7) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct is engaged in using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).

Banking power

(8) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place in the course of, or in relation to, banking (within the meaning of paragraph 51(xiii) of the Constitution).

Insurance power

(9) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place in the course of, or in relation to, insurance (within the meaning of paragraph 51(xiv) of the Constitution).

(4) Schedule 1, page 5 (after line 4), after item 2, insert:

2A Subsection 5(1)

Insert:

Commonwealth authority means:

(a) a Minister; or

(b) an Agency within the meaning of the Public Service Act 1999; or

(c) a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth enactment, not being an organisation that is registered under the Fair Work (Registered Organisations) Act 2009 or a branch of such an organisation; or

(d) a body established or appointed by the Governor-General, or by a Minister, otherwise than by or under a Commonwealth enactment; or

(e) a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth enactment, other than a person who, by virtue of holding that office, is the Secretary of a Department; or

(f) a person holding or performing the duties of an appointment, being an appointment made by the Governor-General, or by a Minister, otherwise than under a Commonwealth enactment; or

(g) an incorporated company over which the Commonwealth, or a body or authority referred to in paragraph (a), (b), (c), (d), (e) or (f), is in a position to exercise control;

(h) a federal court; or

(i) the Australian Federal Police; or

(j) a Norfolk Island agency as defined in the Privacy Act 1988.

entity: see section 5AA.

law, unless otherwise stated to the contrary, includes:

(a) a Commonwealth law; and

(b) a law of a State or Territory.

(5) Schedule 1, page 5 (after line 12), after item 4, insert:

4A Subsection 5(1)

Insert:

public authority means:

(a) a Commonwealth authority;

(b) a State or Territory authority;

(c) a local government body established by or under the law of the Commonwealth, a State or Territory;

(d) an officer or employee of any of the authorities mentioned in paragraph (a), (b) or (c), when acting in the capacity of an officer or employee of an authority;

(e) a person or entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of another public authority (whether under contract or otherwise);

(f) a person or entity declared by the regulations to be a public authority.

Note: A non-government school in educating students may be exercising functions of a public nature but as it is not doing so on behalf of the government it is not a public authority.

relevant belief:

(a) for a person: see subsection 5AC(1); and

(b) for an entity: see subsection 5AC(2).

relevant marriage belief:

(a) for a person: see subsection 5AB(1); and

(b) for an entity: see subsection 5AB(2).

religious body or organisation: an entity is a religious body or organisation if:

(a) the entity is a body established for religious purposes to which section 37 of the Sex Discrimination Act 1984 applies; or

(b) the entity is an educational institution established for religious purposes to which section 38 of the Sex Discrimination Act 1984 applies.

(6) Schedule 1, page 5 (after line 17), after item 5, insert:

5A Subsection 5(1)

Insert:

State or Territory authority means:

(a) a State or Territory Minister; or

(b) a Department of State of a State or Territory; or

(c) a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a law of a State or Territory, other than an association of employers or employees that is registered or recognised under a law of a State or Territory dealing with the resolution of industrial disputes; or

(d) a body established or appointed, otherwise than by or under a law of a State or Territory, by:

  (i) a Governor of a State; or

  (ii) the Australian Capital Territory Executive; or

  (iii) the Administrator of the Northern Territory; or

  (iv) a State or Territory Minister; or

(e) a person holding or performing the duties of an office established by or under, or an appointment made under, a law of a State or Territory, other than the office of head of a State or Territory Department (however described); or

(f) a person holding or performing the duties of an appointment made, otherwise than under a law of a State or Territory, by:

  (i) a Governor of a State; or

  (i) the Australian Capital Territory Executive; or

  (iii) the Administrator of the Northern Territory; or

  (iv) a State or Territory Minister; or

(g) an incorporated company over which the State or Territory, or a body or authority referred to in paragraph (a) (b) (c) (d) (e) or (f), is in a position to exercise control; or

(h) a State or Territory court; or

  (i) a State or Territory police force.

5B After section 5

Insert:

5AA Meaning of entity

(1) For the purposes of the Act, an entity means:

(a) an entity (other than an individual) within the meaning of section 184-1 of the ANew Tax System (Goods and Services Tax) Act 1999; and

(b) a non-entity joint venture within the meaning of section 195-1 of the ANew Tax System (Goods and Services Tax) Act 1999.

Note: The term entity includes body corporates, body politics, partnerships, unincorporated associations or other bodies of persons, trusts and superannuation funds.

(2) For the purposes of subsection (1), an entity is an entity regardless of whether:

(a) the entity is for-profit or not-for-profit; or

(b) the entity is a religious body or organisation; or

(c) the entity operates to make a profit or not.

5AB Meaning of relevant marriage belief

(1) A person holds a relevant marriage belief if the person holds:

(a) a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or

(b) any one or a combination of genuine religious or conscientious beliefs that are constitutive of, supporting of or a corollary of the belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, which beliefs may include, without limitation, any of the following beliefs:

  (i) a marriage that is not a union of a man or a woman is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person;

  (ii) the family structure of a man and a woman united in marriage with their children is a fundamental building block of human society, and this family structure has significant advantages for the nurture and raising of children;

  (iii) sexual relations should only occur within a marriage, understood as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life;

  (iv) the gender difference and complementarity of men and women is an inherent and fundamental feature of human society and is reflected in the gender difference and complementarity of a man and a woman united in marriage;

  (v) a fundamental feature of a marriage between a man and a woman is the modelling for children born from, or raised in, that marriage of the gender difference and complementarity of the man and the woman;

but for the avoidance of doubt, does not include the belief mentioned at paragraph 5AC(1) (b).

(2) An entity holds a relevant marriage belief if the entity has adopted:

(a) a belief mentioned in paragraph (1) (a); or

(b) one or more beliefs mentioned in paragraph (1) (b);

as beliefs the entity holds.

5AC Meaning of relevant belief

(1) A person holds a relevant belief if the person holds:

(a) a relevant marriage belief; or

(b) a genuine religious or conscientious belief that:

  (i) a same-sex relationship is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person; or

  (ii) the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth; or

  (iii) any one or a combination of genuine religious or conscientious beliefs that are constitutive of, supporting of or a corollary of a belief mentioned in subparagraphs (1) (b) (i) or (1) (b) (ii).

(2) An entity holds a relevant belief if the entity has adopted:

(a) a belief mentioned in paragraph (1) (a); or

(b) one or more beliefs mentioned in paragraph (1) (b);

as beliefs the entity holds.

5AD Determining when a belief is held etc.

(1) For the purposes of this Act, a person or entity holds a genuine belief, or holds a genuine religious or conscientious belief, or genuinely believes, if the holding of the belief (inclusive of the person's or entities beliefs as to the actions, refusals, omissions or expressions that are consistent with, a consequence of, made in connection with, based upon, constitutive of, supporting of, or a corollary of that belief)is not fictitious, capricious or an artifice.

(2) For the purposes of subsections 5AB(2) and 5AC(2), but without limiting those subsections, an entity may state or adopt a belief as a belief the entity holds by:

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

(b) adopting principles, beliefs or values of another entity which include the belief;

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

(d) acting consistently with that belief.

(3) For the purposes of this Act, if an authorised celebrant, chaplain or an authorised officer holds a relevant marriage belief or a relevant belief, then in holding, expressing or acting on that belief:

(a) whether or not another person who is to be married is a man or a woman is to be determined by the authorised celebrant, chaplain or authorised officer; and

(b) in determining whether the other person is a man or a woman, if the authorised celebrant, chaplain or authorised officer reasonably believes and genuinely believes that the current legal status of the other person as a man or a woman is different from the legal status of the other person as a man or a woman at the time of the other person's registration following the other person's birth, the authorised celebrant, chaplain or an authorised officer may disregard the current legal status of the other person's sex or gender, or their gender identity or intersex status.

5C After section 5A

Insert:

5B Act binds Crown

(1) This Act binds the Crown in each of its capacities.

(2) This Act does not make the Crown liable to be prosecuted for an offence.

5D Section 6 (heading)

Repeal the heading, substitute:

6 Interaction of Act with State and Territory laws

Act (other than Part VAA) not to exclude operation of certain State and Territory laws

5E Section 6

Omit "This Act", substitute "(1) This Act (other than Part VAA)".

5F At the end of section 6

Add:

Part VAA of this Act is intended to " cover the field "

(2) It is the intention of Parliament that, in order to recognise the protections, rights, privileges and entitlements of a person or entity that holds a relevant belief or a relevant marriage belief and to ensure that such protections, rights, privileges and entitlements are recognised equally and without discrimination in all States and Territories, Part VAA operates:

(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.

(3) For the avoidance of doubt, and without limiting subsection (2), if a protection, right, privilege or entitlement granted, or a limitation provided for under Part VAA 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.

(4) In addition, proceedings must not be brought against a person, and a person must not be convicted of an offence under a State or Territory law or otherwise be found to have contravened a provision of a State or a Territory law, if:

(a) a law of a State or Territory deals with a matter dealt with by Part VAA of this Act; and

(b) an act or omission by a person that constitutes an offence against, or a contravention of, that law is permitted by Part VAA of this Act.

(7) Schedule 1, page 10 (after line 6), after item 17, insert:

17A At the end of section 43

Add "(subject to Part VAA)".

(8) Schedule 1, page 15 (after line 26), after item 58, insert:

58A After Part VA

Insert:

Part VAA—Freedom of thought, conscience, religion, expression and association in relation to holding certain beliefs

Division 1—Protection of freedoms

88J Freedom to hold or express relevant belief

(1) Subject to subsections (2) and (3), a person or an entity has the right to freedom of thought, conscience, religion or belief in relation to holding or expressing a relevant belief, including the right to have or adopt that belief.

(2) Despite any law, it is lawful for a person or an entity to hold or lawfully express a relevant belief.

(3) A reference in this section to lawful expression of a relevant belief:

(a) does not include expression that would constitute an offence against or a contravention of, a law;

(b) for the avoidance of doubt does include expression that is not an offence against, or a contravention of, a law because of section 88KA.

88JA Freedom to hold, express or act on relevant marriage belief

(1) Subject to subsections (2) and (3), a person or an entity has the right to freedom of thought, conscience, religion or belief in relation to holding, expressing, or acting on, a relevant marriage belief, including:

(a) the right to have or adopt that belief; and

(b) the right to manifest that belief:

  (i) individually or in community with others; and

  (ii) in public or private; and

  (iii) in worship, observance, practice or teaching; and

  (iv) in any action or refusal to act.

Note: For the purposes of subparagraph (1) (b) (iv), examples include acting, or refusing to act, in the course of engaging in any of the following for the purposes of preparing for, solemnising or celebrating a marriage:

(a) a for-profit or a not-for-profit business;

(b) duties as an employer or an employee;

(c) activities related to community and public affairs.

(2) Despite any law, it is lawful for a person or an entity to hold or lawfully express a relevant marriage belief and engage in lawful conduct which manifests a relevant marriage belief.

(3) A reference in this section to lawful expression and lawful conduct:

(a) does not include expression or conduct that would constitute an offence against or a contravention of, a law;

(b) for the avoidance of doubt does include expression or conduct that is not an offence against, or a contravention of, a law because of section 88KA.

(4) This section does not imply any limitation on the rights of a person or entity to act on a relevant belief.

88K Protection from unfavourable treatment

(1) Despite any law it is unlawful for a public authority or a relevant person or entity within the meaning of subsection (2) to treat or propose to treat another person or entity unfavourably, or subject or propose to subject the person or entity to any detriment or disadvantage, obligation or sanction, or denial of any benefit, whether directly or indirectly, including, without limitation, in relation to any of the following:

(a) the employment of a person;

(b) the engagement of a contractor or volunteer;

(c) academic, trade or professional qualifications, accreditation or licensing;

(d) accommodation;

(e) education;

(f) the provision of economic benefits, including grants, funding or subsidies;

(g) the supply or acquisition of goods, services or facilities;

(h) the assessment or selection of a person or entity to be a supplier or acquirer of goods or services or facilities;

(i) the administration or enforcement of Commonwealth, State, Territory or local government laws and programs, including the granting of funding under those laws or programs;

because the other person or entity:

(j) holds or expresses a relevant belief other than a relevant marriage belief; or

(k) holds or expresses a relevant marriage belief; or

(l) engages in any lawful act or lawfully refuses or omits to engage in an act because the person or entity genuinely believes that the act or refusal or omission is consistent with a relevant marriage belief; or

(m) has a characteristic that appertains generally to a person or entity described in paragraphs (j), (k) or (l); or

(n) has a characteristic that is generally imputed to a person or entity described in paragraphs (j), (k) or (l); or

(o) associates with a person or entity described in paragraphs (j), (k) or (l) or associates with a group or is a member of a group which is an entity described in paragraphs (j), (k) or (l) or which includes a person or entity described in paragraphs (j), (k) or (l); or

(p) employs or engages as a contractor or volunteer (or has not refused to employ or engage as a contractor or volunteer) a person who is described in paragraphs (j), (k) or (l); or

(q) provides goods, services, funding, subsidies or other economic benefits to a person or entity who is described in paragraphs (j), (k) or (l) (or has not refused to do so); or

(r) acquires goods, services, funding, subsidies or other economic benefits from a person who is described in paragraphs (j), (k) or (l) (or has not refused to do so).

Note: Examples of detrimental action made unlawful by section 88K include the following:

(a) A public authority, such as a government agency, refuses to appoint or hire or promote or dismisses a person, employee or contractor because that person holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.

(b) A public authority, such as a government agency or private sector body exercising professional or trade accreditation functions on behalf of government or under statutory authority refuses to accredit or imposes disadvantageous conditions on an accreditation of a person or entity because the person holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.

(c) A public authority such as a local government or State or Territory or Commonwealth Government department or agency refuses to provide a grant or funding or provides it on disadvantageous conditions because the grant applicant holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.

(d) A government education authority, including a government school, or a private school when acting on the instruction of or in accordance with its funding contract with a government authority, suspends or expels a student or bans or refuses access to facilities or funding to a student club because the student or the student club holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.

(e) A public authority refuses to supply to or acquire from a person or entity goods or services or facilities or discriminates against the person or entity in a tender process because the person or entity holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.

(2) In this section, a relevant person or entity means a person or entity which engages in the conduct described in subsection (1) because it is caused or induced to do so by a public authority, including being caused or induced to do so:

(a) by a request, instruction or expectation of a public authority; or

(b) by a condition of a contract or arrangement with a public authority; or

(c) by a condition of direct or indirect funding by a public authority; or

(d) by a condition of a licence or permission granted by a public authority.

(3) It is unlawful for a public authority to cause or induce a relevant person or entity to engage in conduct described in subsection (1), including in the ways described in subsection (2).

(4) A request, instruction, expectation or condition of the following kind is void to the extent that it would cause or induce the person or entity to engage in conduct described in subsection (1):

(a) a request, instruction or expectation of a public authority directed to a person or entity;

(b) a condition of a contract or arrangement between a public authority and a person or entity;

(c) a condition of direct or indirect funding by a public authority to a person or entity;

(d) a condition of a licence or permission granted by a public authority to a person or entity.

(5) The reference in paragraph (1) (l) to engaging in a lawful act or lawfully refusing or omitting to engage in an act:

(a) does not include engaging in an act, refusal or omission that would constitute an offence against, or a contravention of, a law; and

(b) for the avoidance of doubt does include engaging in an act, refusal or omissio

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

It will be no surprise to Senator Paterson that the Greens will not be supporting any of his amendments in this tranche. In my role as education spokesperson for the Greens, I want to take issue with the element in relation to education. I find it extraordinary that you want to use this debate and this bill to wedge in provisions around what classes children attend. The Australian public have made their view extremely clear. They were asked if they wanted to allow couples, regardless of gender, the right to marry, and, overwhelmingly, Australians responded with a loud yes. That has absolutely nothing to do with the grasping-of-straws attempt that, with all due respect, Senator Paterson, you and others are trying to waste time in this chamber with today in bringing up other issues which just simply do not fit here.

You've said that this is a very narrow amendment and that it only relates to marriage. Well, hang on a minute; if you care about freedom of speech and if you care about parental rights, why wouldn't we have provisions that allow parents who are flat-earthers to say that their kids shouldn't go to geography classes or that allow people who don't believe in climate change to say that their kids shouldn't go to science classes? It is extraordinary that you want to start a trend where the education of children gets drawn into this political debate, an ideological debate, that you have lost and those who oppose marriage equality have lost. This has absolutely nothing to do with the bill before us, and we will be voting down these amendments.

I think parents right across the country are wondering why on earth Senator Paterson wants to bring in such ridiculous, draconian amendments into this process. You talk about freedom of speech and you talk about freedom of citizens, and these prescriptive amendments really do risk legislating cumbersome nanny state laws. That is what you're talking about here. On the next lot of issues that you don't agree with, are we going to have an amendment bill that starts saying children can't be taught the science of climate change or children shouldn't be taught about issues of respectful relationships—for example, encouraging young women and girls to make sure they don't put up with domestic violence in their relationships or with sexual assault? Where do you draw the line? This is purely ideological desperation, and these amendments should be rejected from the chamber.

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

I'm glad Senator Hanson-Young asked where we draw the line, because the line is actually drawn in article 18.4 of the International Covenant on Civil and Political Rights because it specifically refers to the obligation of states parties—Australia in this case—to ensure that parents can oversee the education of their children in accordance with their own moral convictions. Their moral convictions have nothing to do with climate change, the shape of the earth or any of the other issues that Senator Hanson-Young raised. They do, however, go to the fundamental beliefs that people have around marriage and the fact that marriage is between a man and a woman and the associated issues that go to their rights as parents.

So I will be supporting these four amendments that Senator Paterson has brought up. The freedom of expression is important. It's important to realise—and I said this in my speech on the second reading—that we're talking here about a view of marriage that has been around for millennia. In fact, when the Supreme Court in the US made their decision, they recognised:

Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.

The concern that is being raised, and was raised during the Senate select committee process by many of the witnesses, is that we have already seen actions by advocates here—Senator Paterson mentioned Archbishop Porteous in Tasmania and the two pastors there—and we've seen many cases overseas where action has been taken against people not because they've been discriminating but because they have expressed their view. In some of the cases, the action that has been taken against them is on the basis that in the future they might offend someone through expressing their view. So it's not even to do with discrimination; it's that in some future act they may offend someone, and therefore action is taken against them. I think that, if Australia is to be a plural country where people can have different views that are respected and legal, we can't make a change in the law which is going to enable the kinds of actions that we've seen with Archbishop Porteous and others to be more widespread in the nation.

The examples of detriment that we've seen overseas include things like graduates of a university in Canada who were refused registration. In the UK, an employee of a housing trust mentioned that he didn't think the state should impose its rules on places of faith and conscience in respect to marriage and, as a result, the housing trust sought to sack him. Because he'd been there for a while, they weren't actually allowed to sack him in the end, but they demoted him and reduced his pay. A Mr Ngole, a UK masters student, was expelled from his university because he took part in a Facebook conversation that was completely unrelated to the university or his course and expressed his view around traditional marriage. It was reported back to someone in the university. They then took the view that his view might offend someone in the future, and so they kicked him off his course at university. To the horror of people who supported him, who then took that to the High Court in an appeal, the High Court upheld that decision. So here we have a country based on common law, like Australia, which has allowed someone to be kicked off a course purely for holding a view that marriage should be between a man and a woman and because in the future he may offend someone by holding that view. I think any reasonable person in the street would say that that is an unacceptable abuse of state power, given that, as the US Supreme Court said, people of good faith around the world have for many, many years held that view and many—in fact in Australia, nearly 40 per cent—continue to hold that view.

The amendment also goes to keeping people free from being required to endorse views that they don't actually support. We've seen that occur overseas, but also here in Australia. In the UK, for example, the National Trust, a body you would think is a good conservative place, in actual fact decided all their employees needed to wear a badge for marriage equality. For those who decided that they didn't want to wear that badge because they didn't support that view, they were required to work at the back of facilities out of public view and they weren't allowed to come back to public-facing roles until they had reformed or changed their thinking on such issues. That is reverse discrimination. We've heard here people saying we don't want to see anything that will create new discrimination, and yet that's what we've seen in the UK.

Here in Australia, we've also seen similar things. In the Northern Territory, a teacher who expressed his view and his support for traditional marriage was issued a show cause notice by the education department. In Melbourne, a Commonwealth public servant was given a formal warning because he complained about being pressured by the department to participate in a gay pride march. People are free to march, but people should also be free to say, 'I don't wish to march because I don't support the view.' So the very freedoms that have allowed people who are pushing for this change—to speak, to march, to associate, to advocate for the change—are now being denied to people who wish to support the traditional view of marriage.

One last case, where we see this attitude starting to take place, was an IT manager in Melbourne. This is evidence that was brought before the Senate select committee. An IT manager was working, coincidently, on the software that supported the Safe Schools program, and he did his job diligently and well. He was a manager in the company. But when it came to expressing his personal view, he indicated that he wouldn't want his children involved in the program. For that, he was accused of creating an unsafe work environment and was sacked by the company. That has been taken up by lawyers and is being contested, but it gives you an example of the kind of totalitarian approach which is taken when people dare to hold a view that doesn't align with that which is, to use the 'coin', politically correct, or the view that is supported, importantly, by the state and territory discrimination law.

To give you an example of how this connection between a change in federal law intersects with state and territory law, I look at the procedure document issued to South Australian schools in November of 2016. This is a document which says at the top:

Please note this procedure is mandatory and staff are required to adhere to the content.

It refers back to the changes that occurred in the Commonwealth Sex Discrimination Act where gender identity and intersex status was included in that act. It then goes through to talk about the policies in schools and what principals do and don't need to do—and they talk about things like getting rid of heteronormative language, et cetera—but the part that is concerning is you have this dynamic of linking to a change in federal legislation. In the paragraphs of the instruction, it then points to the state anti-discrimination law and says, 'If you don't do these things, you are at risk of breaching this law … suggest you go and consult the legal department'—not once, but multiple times in the document. It's clear that they take a change in federal law and then use the state antidiscrimination law as a weapon to enforce the compliance of people, even if they don't agree. This particular instruction is concerning because one of the things it requires principals to do—in this case, it's to do with gender fluidity—is, if a child decides that he or she would like to transition their gender, then the principal is to ask the parent. But what this mandatory instruction of the state government says is, if the parent objects, the principal is to decide what's in the best interests of the child and to ignore the parent's wishes. It's an example of how a change in federal legislation, using the threat of state antidiscrimination law, will override the wishes of parents, who, under article 18.4 of the International Covenant on Civil and Political Rights, are guaranteed by human rights law the ability to oversee the education of their children in accordance with their own moral values.

The provision here for parental rights is actually an important provision. I know Senator Hanson-Young said the question wasn't about that. The question received 61.6 per cent support for change, and that's why we're respecting it and not seeking to filibuster—we're going to move this change through. But 62 per cent of Australians, regardless of how they voted, also said they thought protections were important. Probably the highest ranked amongst those were protections for parents to be able to oversee the education that their children are exposed to.

There is precedent for a head of power to use this. The amendment draws on the external affairs power, because we are a signatory to the ICCPR. If you go back in Australian legal history to when Tasmania was the last remaining state criminalising homosexual behaviour, the Commonwealth used the external affairs power to override state legislation so that homosexuality was legal throughout Australia, in accordance with our obligations under the ICCPR. So there is a very direct and relevant precedent in Australian law for us to use a Commonwealth provision, to the extent necessary, to override state and territory law—in this case, to implement article 18.4 to ensure the rights of parents that are guaranteed under international law.

So those three areas—freedom of expression, freedom from being required to endorse a position that you don't agree with, and parents' right to oversee the education of their children—and the antidetriment provisions protect people with a genuine belief. It's defined in the legislation, so it's not broad—it can't go to flat-earth things. It is around the belief that marriage is between a man and a woman and it doesn't allow any new discrimination. They protect. They're a shield that protect somebody from expressing a view that is legal today—certainly legal under any Commonwealth law after this bill is passed—but could offend state and territory antidiscrimination laws, as we have seen in Tasmania. So this amendment is intended not to allow discrimination but to act as a shield for people so they are able to have that genuine belief about the nature of family. This is the kind of thing that was envisaged in the Senate select committee report, where all of the senators agreed that there were issues that needed to be carefully considered and debated if we were to reach a sensible balance that allowed Australia to remain a place where a diversity of views is both valued and legal. I commend these amendments to the Senate.

Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I'm going to be very, very brief. I think it's no secret that I'm not a supporter of these amendments being moved by Senator Paterson and Senator Fawcett. But I do want to put on the record that I believe they are amendments that were put in good spirit and good faith, and I think some of the post-plebiscite commentary around some of these amendments has been quite unjust and quite unfair. I think it's very reasonable for us to be able to have these kinds of debates about where you draw the line on religious protection, and that good people are able to disagree on these matters.

Senator Seselja interjecting—

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Yes, that was clearly a speech designed for the ears of Western Sydney that have a narrow cast. I think it would be helpful for us to reflect on a few facts in this debate. And the simple fact is: the right of parents to guide the moral education of their children is an established right under international law. Nobody disputes that. Same with freedom of speech. Same with conscientious objection. These are fundamental human rights enshrined in international documents. What we are embarking upon with this legislation, potentially, is to compromise those fundamental rights in favour of something which has been shown time and again not to be a fundamental human right, namely, same-sex marriage. The international law on that is exceptionally clear. Does that stop a country from legislating for same-sex marriage? Of course not. It is not one of those fundamental international human rights. So what we have here is the Australian legislature seeking to establish a new right and, in so doing, compromising those very basic fundamental human rights that, thank goodness, we were all able to grow up with.

It is bizarre in the extreme that those who have celebrated the outcome of the postal survey did so on the basis of the embrace of—dare I say the word—diversity. But now that they've got a win in a postal survey—and I'll get to that later—they want to drop the blade on the D10 and just bulldoze forward without any concern about diversity. All of a sudden, diversity is no longer to be celebrated. There might be mums and dads concerned about the moral education of their children. Out the window! In my home state of Tasmania, Archbishop Porteous was taken, as it happens, to an antidiscrimination tribunal by an endorsed Greens' candidate who only withdrew it when she realised the consequences electorally, and they then ran for cover. But the simple fact is: surely, an archbishop—Julian Porteous—is entitled to circulate to the Catholic school community in Tasmania a well-considered document on the Catholic church's teachings on marriage. It wasn't a frolic of his own. It was a considered document signed off by all the Catholic bishops in Australia—it was from the Australian Catholic Bishops Conference—and given to students at Catholic schools to take home to their parents. This was considered by this Greens candidate as a huge affront to human rights.

Now, I take Senator Hanson-Young's point about the postal survey and what people voted for. Let's be very clear: they voted for the question, 'Should the law be changed to allow same-sex couples to marry?' Nothing more, nothing less—same-sex couples.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Why all these desperate amendments?

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

So, to try to read into this that, somehow by voting for same-sex marriage, the Australian people also overwhelmingly voted to denigrate parental rights, to denigrate the right to freedom of speech and to denigrate the right to freedom of conscientious objection is, to employ the words of the honourable senator, somewhat desperate. That is clearly not what the Australian people voted for.

What is more, as Senator Fawcett pointed out to us, in the same polls that predicted the outcome of about 61.4 per cent of Australians voting in favour of same-sex marriage, with even a bigger margin they indicated their support for these fundamental freedoms. That is what should be motivating us and exercising our minds in this chamber this evening. What is it that we want in Australia? Do we want diversity? It seems no longer so. Diversity was a great catchcry until you were able to convince a certain group of Australians that they should vote for this diversity, but, now that this diversity has been voted for, anybody with a contrary opinion should be shut down, closed down, no longer allowed to speak. And your seeking to tell us that we are voting for a nanny state is really as much of a case of pot-kettle-black as I have ever witnessed in this chamber. The simple fact is—

Senator Hanson-Young interjecting—

Despite great temptation, Senator Hanson-Young, I didn't interject during your speech. I would encourage you to extend the same sort of courtesy to those of us on this side. It seems, according to Senator Hanson-Young, that it's an extraordinary wedge.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I didn't say that.

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Check the Hansard. Yet again the Australian people will be able to say that often the honourable senator speaks and does not know what she is saying. I think that has now been confirmed. I took notes, Senator. I took notes of what you said. But, if you deny that you said it, I won't have to contradict what you said. I won't have to contradict what the honourable senator said.

But we have literally case after case. There is the academic Dr Stephen Chavura, in New South Wales, who has been confronted because of his views in relation to the issue of marriage. If we celebrate diversity, if we allow people to hold alternative opinions—just as for, what, a decade certain people continually said that the definition of 'marriage' ought to be changed to include same-sex couples; were they ever denied the right to be able to say that? No. They should be allowed to say it. In a free, democratic society, these issues will ultimately be determined by debate—robust ideas being sharpened off each other—and then the view of the people will be made known.

Similarly, shouldn't people who still hold to the view of marriage as being between a man and a woman today be afforded the same freedoms as those who advocated for a change in the law? Shouldn't people—as of tomorrow or whenever this legislation might get passed—have the right to argue that the law ought to be changed back? We might disagree with that view, we might agree with that view, but that is a fundamental freedom that we should have in our society, that we should celebrate in our society. If the view is, 'We've changed the law; therefore you are now no longer able to hold that point of view or advocate that point of view,' we are, sadly, moving into an era of Australian politics that I must say is not the sort of Australia that I would like to see.

I would like to see an Australia where we do have the capacity to have that diversity of views. People voted to change the law to allow same-sex couples to marry. That has already been extended and taken a liberty with by Senator Smith's bill, which takes it a lot further than what the actual question was on the postal survey form. Then to say that somehow that vote is indicative of the will of the Australian people to deny these fundamental freedoms is just so very, very sad. There is the case of the students at Trinity College that Senator Paterson referred to. They are being denied the right to practise their career as lawyers, not because their degree was deficient, not because their advocacy skills were wanting—no, nothing to do with that. It is on the one ideological ground that they were part of an institution where they were of the view, if I recall correctly, that sexual activity should not be engaged in until after marriage. That's a vow they signed up to. And, in a diverse society, shouldn't that be allowed? Why should somebody of that view be denied the capacity to represent the men and women of Canada in the courts of law? It's like a foster family in the United Kingdom—a wonderful Christian family, according to all of the reports, who had fostered many, many children, with great outcomes. Everybody said: 'How great is this? What a wonderful, loving family unit, doing this for children that need foster care.' All of a sudden, because of the change of law in relation to marriage, the couple were denied any more foster children because they mightn't teach them about the homosexual lifestyle or gender fluidity. Children in desperate need of a loving mum and dad in a foster family are denied that capacity for that one sole reason.

Let's make no mistake: when people were advocating for the 'yes' vote and claiming there would be no consequences, they knew what was happening around the rest of the world. Those of us that argued the consequences knew what we were saying. We want to protect Australia from some of those travesties—to protect the law students in Canada, for example, and to protect the foster carer family in the United Kingdom. The list around the world, sadly, is very, very large. Another example are the, I think, 19 Catholic adoption agencies in the United Kingdom that have had their charitable status changed or denied for one simple reason: they believe that children are best placed with a mum and a dad.

Whilst I accept that same-sex marriage will become part of the law of this country by the end of these two weeks of sitting, I am still very fundamentally of the view that, all things being equal, children are best brought up knowing the biological certainty of their parents and having the diversity of a male and female role model. Why else do people argue that we should have more women in parliament or on the Supreme Court benches? If all of a sudden women were no different from men, why EMILY'S List for the Australian Labor Party? There is a fundamental difference. In fact, the scientists tell us there are, I think, a thousand or more chromosomal differences between men and women. It's a biological fact that there are differences. The reason that people argue we need more women in parliament is that women are different and make a different contribution. They provide, dare I say the word again, 'diversity' for parliament, for the boards of companies and for the Supreme Courts. But, for the most important role in society, the socialisation of the next generation, that diversity is, all of a sudden, no longer required. I say that I believe, if at all possible, it is desirable, and that is why people that want to express those views should be protected. For the sake of the children and the next generation, I fully support the amendments.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I won't be supporting this set of amendments on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, but I do want to take this opportunity to deal with a number of definitional matters that have been raised that are in this general area. Hopefully the Senate will allow me that opportunity. The first of those is in respect to non-denominational religious groups and whether the bill as it's currently struck provides adequately for those religious groups. The current bill exempts ministers of religion and religious marriage celebrants from being required to solemnise same-sex marriages.

A religious marriage celebrant must be a minister of religion, and 'minister of religion' is defined widely in the Marriage Act already in a broad sense where it indicates that:

minister of religion means:

(a) a person recognised by a religious body or a religious organisation as having authority to solemnise marriages in accordance with the rites or customs of the body or organisation; or

(b) in relation to a religious body or a religious organisation in respect of which paragraph (a) is not applicable, a person nominated by:

(i) the head, or the governing authority, in a State or Territory, of that body or organisation; or

(ii) such other person or authority acting on behalf of that body or organisation as is prescribed;

to be an authorised celebrant for the purposes of this Act.

My advice is that this encompasses non-denominational religion groups. The problems and concerns that have been raised should be addressed by the current broad definition in the Marriage Act. If that's not adequately the case, I would hope that this can be something that we can see further resolved in the Ruddock review. But my understanding is that the broad definition within the existing Marriage Act should manage that problem.

The second problem that's been raised with me is in respect of religious facilities. This is the concern that chapels or churches in less traditional environments might suffer from not being adequately provided for in this bill. The current bill exempts bodies established for religious purposes from being required to provide facilities for the purpose of a marriage. My advice is that schools or other bodies can be organisations established for religious purposes, if that purpose is in their constitution. Where it is not clear the extent to which this is the case, organisations could include such purpose in their constitution if they so choose.

This interpretation or advice is not consistent with some suggestions about the Queensland Anti-Discrimination Commission tribunal decision in relation to St Vincent de Paul. The St Vincent de Paul case, I think, is particularly pertinent to our discussions now because, whilst I and Senator Abetz have concerns about some of what has occurred in overseas jurisdictions, this is perhaps one of the very few matters that have come to a decision that may relate to issues that we need to resolve between the Commonwealth and the state tandem antidiscrimination frameworks. It is a very complex area. It is probably an area that's going to test the minds of those in the Ruddock review process. But, as I have said, in relation to religious facilities my understanding is that the federal provisions provide broader scope for organisations to be regarded as organisations established for religious purposes. Indeed, I would be quite concerned if at the federal level such a narrow definition were ever adopted. I don't believe that there are the examples in the Australian jurisdiction that demonstrate that such a narrow definition has or could be adopted. As I said, my advice in relation to religious facilities is that a broad definition should allow the exemptions that are in this bill to ensure that, for example, a chapel in a school does not end up becoming the victim of, let's say, activism to make a point in relation to same-sex marriage.

We canvassed this issue in the second reading discussion. I think that there's quite a significant level of support for ensuring that the extremes of this debate don't continue and that we continue in a philosophy of that Australian ethos I mentioned, which is 'live and let live'. It's one of the things I am proud about being an Australian, that we do have that heritage, that we haven't gone down the same path as the United Kingdom or Canada or the US. Indeed, even, say, the Canadian cases, where they do have a bill of rights and protection for religious freedom, haven't actually delivered the protection needed in some of the cases that other senators have been citing. This is why the process that the Ruddock review will undertake is going to be quite fraught, because we don't necessarily want to follow overseas jurisdictions to get the outcome that we want to be able to apply here.

I think most of us value the community work and dedication that has been provided by organisations such as St Vincent de Paul and organisations that have been delivering education for decades—sorry, hundreds of years—in Australia. It is critical that they be able to continue to operate under the tenets of their faith.

I said in my second-reading contribution—not reported quite accurately, I see, in The Sydney Morning Herald

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

What a surprise!

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Thank you, Senator Abetz—that, in the context of the Prime Minister deciding to kick this issue down the road, we may have been able to resolve some of the issues with a bit more clarity. I think it's obvious from the earlier debate that there isn't now the numerical support for that. But I hope, very dearly, that the Ruddock review process will ensure that we don't deteriorate in Australia down to a place where an organisation like St Vincent de Paul is regarded as not being a body established for religious purposes. If there's one message I have for that review panel coming out of this discussion, I think, that would be the main one.

In relation to Archbishop Porteous, I noted Senator Paterson took less comfort than others in relation to that matter. My only reflection on that issue would be, unfortunately, that the attempt by Senator Paterson, Senator Fawcett and others to provide provisions in these amendments would equally be legally contestable. So whilst the Porteous case hasn't established any principles because it was withdrawn, I'm not so confident that even necessarily these provisions won't continue legal uncertainty, or indeed be challenged in a way which further complicates our already complex antidiscrimination framework.

I know that in the past there have been attempts to simplify our antidiscrimination framework to deal with its tandem nature and the differences between the state and the federal jurisdictions. It is a very complex and challenging area, but I hope, as a consequence of this debate and the Ruddock review, that the next time we look at a consolidation of an antidiscrimination framework, it's on the basis that we have strong general bipartisan support for religious freedom.

Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source

I just want to open by reflecting on the fact that the contributions from those opposite in this space are an example of what we need to be careful of. We know that there are members of the opposition who want to support these amendments, but they're denied the ability to do that. You won't see them in the chamber speaking, because the party has pulled the veil down on them in terms of making a contribution and expressing what they truly believe—

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

That's not true, Barry.

Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source

Well, the Leader of the Opposition made that very clear in an earlier debate today—

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

No, he didn't.

Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source

that a conscience vote—well, it's a 'she'; I'm talking about the leader in the Senate chamber.

Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Stop trying to be gender neutral.

Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source

But—good contribution, Sammy. Of the responses to all of these amendments, the one that confounds me absolutely, both from members of the opposition who are unable to make a contribution and those who might resist these amendments, is that around the rights of parents. For goodness' sake, it's around the rights of parents. For thousands of years people have fought within societies and family structures, of whatever form they may take, for these rights for which we're seeking simple protections, which will also be afforded to same-sex couples who may have children in their family unit in education, not just to do with matters around sexuality and sex education but on so many frontiers. Parents must always have the right to choose what teachings their children will be exposed to and what exercises they engage in. If they fundamentally do not believe in teachings or modules of education that their children are to be exposed to then they must have the right to insulate their children from those. That is their choice. That is the primal right of parents who are taking care of children who haven't reached the age of majority. It's as simple as that. I don't necessarily want to be one of the people who tie Safe Schools to this debate, but there you go: Safe Schools, a most horrible module of education. I can't even repeat some of—

An honourable senator interjecting—

I'll do what I find difficult and just ignore you. The fact of the matter is Safe Schools had some atrocious material in it. Even people in the LBGTI community resisted it. It was condemned. If this principle were to remain, parents would be able to choose to take their children out of the education system, because they do not want them to be exposed to particular teachings that are so inconsistent with their determined value base. We all have different value bases. Many elements of them are common to us all. I grew up in a Catholic household and a Catholic community and was educated at Catholic schools; I remain a tortured Catholic at 60 years of age. These are values that I have upheld, and they are a part of my life. They guide me in certain circumstances and have served me well, in my view.

If you tell me now that I can't be allowed to engineer the lives of my children or grandchildren—where I have responsibility for them, before they've reached that age where they can make their own minds up—particularly about what teachings they will be exposed to on these serious matters in educational forums, then I reject that. I've sat and tried to think of a government in my lifetime, in my life's experience in Australia, that has ever done this. They have never done this: until this point in time, parents have had the right to remove their children and protect them from particular teachings, without fear that they will be subject to actions of discrimination. I find it astonishing that amendments such as this are resisted. I love the contributions when someone is talking about freedom of speech and freedom of religion: 'We will go to the trenches supporting your freedom to practise a religion, except for these elements that aren't consistent with our argument now. We're happy for you to practise your religion, speak about your religion and express your beliefs, except in certain circumstances.'

I really urge my colleagues in this place—it's difficult because some are bound, apparently, by accepting conditions placed upon their ability to exercise their free speech and vote in accordance with their value systems—to think seriously about this issue. This is the cornerstone and the touchstone of a civilised society. We are charged with the responsibility to raise our children—in my case and in the case of many colleagues—on Christian values; Judeo-Christian values underpin our codified law. If you go back, the foundations, as we legislated in life, drew very heavily on Christian beliefs.

This set of amendments can cause no harm. If these amendments are not accommodated, the potential for harm exists. I will more than willingly go on the record to support my colleague Senator Abetz when he spoke about the result of the postal plebiscite. It was not a licence for us to ignore the concerns of the almost five million Australians who voted against the change to the Marriage Act. I said—like we all have, I suspect—in the last six or seven months, I will be happy after this fortnight if I can go all the way to Christmas without hearing the word 'marriage' again, to be honest.

I had experiences with people who indicated they were going to vote no because of their concerns around an absence of a debate around these protections. They were people who indicated that they were quite agnostic about two people of the same gender being married but they were not agnostic about the prospects that a change to the Marriage Act might create an environment that caused new forms of discrimination, as articulated by the colleagues. Suggestions that we should somehow push this off and kick it into the grass and come back next year have only been made by people who haven't been here struggling with the provisions of 18C for three years—minor amendments were required but couldn't be agreed upon in this place or in the other place. Imagine if we have to come back here and sit down and start to talk from scratch about religious freedoms and all the things that go with it? That push wasn't here before this. I think there are currently quite adequate provisions to protect from that.

I say as I close, we need to think carefully and steadily. This isn't a competition. This isn't a contest about what you get and what we don't get—about they're the yes-ies and they're the no-ies—so we should resist moderate, sensible, fair, justifiable provisions that protect people, particularly parents in the raising of their children. It is the most fundamental and primal consideration for parents who want to look after their children and we not only need but we have a serious obligation to consider them fully and carefully and so it's in that vein that I urge my colleagues to support these amendments.

Louise Pratt (WA, Australian Labor Party, Shadow Parliamentary Secretary for the Environment, Climate Change and Water) Share this | Link to this | Hansard source

I rise to speak against the hefty set of amendments which seek to insert the Paterson bill into our current cross-party bill, even though the bill that was announced by Senator Paterson was, indeed, roundly rejected by senior Liberals, including the Prime Minister himself. I do note that these amendments do not include the right for businesses to deny goods or services to same-sex couples getting married, but, despite this, we need to remember that what is in these amendments will have a very significant impact on the intention of the bill before us, which is to legislate for marriage equality. Indeed, what is before us undermines the principle of marriage equality significantly and does not implement marriage equality, and I will explain why.

It extends the right to discriminate against lesbian, gay, bisexual, transgender and intersex Australians in significant ways. For example, the extension of exemptions around relevant marriage belief is extremely wide in terms of marital status, family structure, sexual relations and gender difference. However, it restrains the relevant marriage belief on those topics to be a feature only of a marriage between a man and a woman. It does not extend the same right to hold a belief about marriage to others, such as me, who believe in marriage equality and who, like more than 60 per cent of the Australian population, have voted for marriage equality. So you are entrenching the meaning of a relevant marriage belief such that the belief about marriage to be held, and which you have a right to prosecute within the community, is constrained to this doctrinal version of marriage. It is a one-sided protection of beliefs, privileging one set of beliefs above others.

For example, it allows a person who believes in abstinence before marriage to remove their child from a class that teaches sex education but does not allow a person who believes that marriage is not only the union of a man and a woman to take their child out of a class that teaches this. Now, that is not what the Australian public voted for. What is worse in this respect is that we have what is colloquially known as a 'no-detriment' clause included in these amendments—essentially, a right to do anything if it relates to a relevant marriage belief. It provides a sword for establishing a new offence of victimisation for people who hold such beliefs, but there is no counterprotection for anybody else. Indeed, essentially, these are exactly the same reasons why we have now before us—and rightly so—a religious freedoms inquiry to be undertaken. That is where we can look at the appropriate balancing of beliefs, not just on the question of marriage but on all other matters. Why should marriage be privileged in this regard as a topic of religious freedom, where someone may withdraw their child from a class on the basis of a teaching about marriage but not on the basis of being served pork within a classroom? What is before us today simply makes no logical sense. We cannot look at the issues before us unless we look at a suite of rights and protections.

We note that the amendment also extends exemptions to organisations and prevents detriment in relation to charitable status and allocation of Commonwealth funding, and widely creates a right to dramatically extend the right to discriminate in a broad set of exemptions from discrimination. I and others on this side believe that what we have before us in these amendments is fundamentally at odds with the will of the Australian people, who have voted to reduce discrimination and not to extend it.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I rise very briefly to respond to some observations made by Senator Pratt and one observation made by Senator Collins. Firstly, I will address in aggregate the concerns raised by Senator Collins, which I suspect reflect the concerns of her fellow-minded Labor senators, as a no-voting Labor senator. In essence, Senator Collins was putting a great deal of faith in a future process, the Ruddock review, to provide the protections for religious freedoms and other freedoms that are not in the current law. While I'm very positive about the Ruddock review, and I think it is a very worthy initiative, I don't share Senator Collins's confidence that a future process, which is not yet even started, is something that we can rest our hat on in order to deliver the freedoms that she and I—I think—agree are necessary now. The simple fact is that the review is not due to be returned to the government until April, I believe, so in between legislating same-sex marriage and that time, there will be no protections. Even when the review is returned to the government, there is no guarantee that there will be consensus either within the government or within the parliament about how to address those issues. It is quite possible that the end outcome of the Ruddock review process will be no additional protections. That means that those Labor senators who do have concerns and who are going to vote with their party and not exercise a conscience vote that may or may not be available to them—it's not really clear—are putting a great deal of faith in an uncertain protection in the future.

Coming back to Senator Pratt's comments: they were measured and considered, as always—I appreciate that—but I think they were misinformed about this part of the amendments. Senator Pratt was concerned that they are, in some way, one-sided in that they protect people who only have a relevant marriage belief or a traditional marriage belief. The reason that is the case is that it is only people who have a traditional marriage belief who may have detrimental action taken against them, because there are only laws in existence in Australia which limit their freedoms on these issues—a concrete example is the Tasmanian antidiscrimination laws. The Tasmanian antidiscrimination laws do not prevent me going out in Hobart and saying anything I like about someone who has a traditional marriage belief. There is no restriction on that. There is a restriction in those laws about going out and saying whatever I would like or whatever anyone else would like to say about same-sex marriage, my belief in same-sex marriage or otherwise. That is currently restricted. It's one-sided in the sense that it is responding to our existing laws which are one-sided.

Senator Pratt mentioned, particularly, the example of classes. No-one has ever disputed, to my knowledge, that parents should have the right to remove their child from a religious instruction class, for example. Parents do that all the time. I'm aware of it extensively in my home state of Victoria. But it is not clear that parents have that same right to remove their child from a class that, for example, teaches the Safe Schools program and teaches values inconsistent with the values of marriage of the parents. It is one-sided in the sense that it is responding to the existing status quo, which is one-sided.

That equally applies to the antidetriment clause. Senator Pratt characterised the antidetriment clause as a sword, which I think is a very unfair and untrue characterisation of it. It is, as Senator Fawcett described it, a shield. All that it stops is detrimental action being taken against someone who has a traditional belief in marriage. What that means is that they cannot be unfairly treated based on their views or their values. It is a protection that already exists for people on the basis of their sexuality or their gender identity but which does not exist for people who have a traditional belief in marriage. It is a new provision but a necessary one, in my view.

Zed Seselja (ACT, Liberal Party, Assistant Minister for Social Services and Multicultural Affairs) Share this | Link to this | Hansard source

There are a couple of areas that I want to touch on before I get into some of the issues around parental rights, which I think are absolutely critical. They are one of the reasons I will be supporting this set of amendments moved by Senator Paterson, which are thoroughly in the best traditions of liberalism and conservatism, and I commend him for it.

I will make a couple of comments in relation to Senator Collins's contribution. It does appear clear that Labor is voting as a bloc, so it doesn't appear that there is a conscience vote. I think that is clear. Senator Collins was objecting before to Senator O'Sullivan's characterisation of that, and it's not clear how that came about. I know that Mark Dreyfus stated today that there is a Labor position on the amendments, so I think that is clear. What's gone on internally in the Labor Party is up to them, but I would just make this point: we now have a situation, as we discuss these amendments, where certainly on the Liberal-National side there is a conscience vote, but Labor has bound their senators on this. So we don't have a genuine conscience vote as we debate these substantive amendments that were moved by Senator Paterson and others. I think it is well worth reflecting on that. Whether or not that's because, as Senator Wong said, senators who felt differently from the party line didn't want a conscience vote or because it's been imposed on them is for those senators to say, but I think that is a disappointing aspect of this, because certainly the Labor Party has been arguing for a conscience vote for a long time on this issue. They've in fact had a mixed message where they have argued for a conscience vote but were going to bind their people after the next election regardless. Now it seems there isn't a genuine conscience vote as we discuss these things.

I say to those Labor senators who expressed a view raising some concerns about religious freedom and about some of these fundamental things we are debating that the point that Senator Paterson made is a very good one. The review is important. It will look at a lot of these things, but they have an opportunity now to stand up for these things as they relate to beliefs about marriage. These are not hypotheticals. We have seen enough examples in Australia now and certainly overseas, where the law has been changed, of people being discriminated against because of their views of marriage. That is indisputable.

I'm sure that some of our colleagues in the Greens and the like would be very comfortable with that discrimination. In fact, I think that case in Tasmania against Archbishop Porteous was brought by a Greens candidate, if I'm not mistaken. So the Greens' world view is that archbishops who express the view of their faith on marriage should be hauled before a tribunal. I take a very different view. I think most Australians would take a different view. We have an opportunity to vote today in support of that freedom of speech. We have an opportunity today to address that situation with Archbishop Porteous—which, of course, did happen before marriage laws changed, but let's just play that to the end. We've got a situation where an archbishop was expressing the views of his faith about marriage in what I think most Australians would argue was a very respectful way. That also happened to be and happens still today to be the law of the land in this country. So Archbishop Porteous, whilst he was dragged before that tribunal, had backing not just because he was expressing his religious view but because he was expressing the view of what is reflected in the law of the land. That won't be the case in a week or so from now, and what we have seen from left-wing activists is that they will use antidiscrimination laws to try to shut people like Archbishop Porteous up. They will absolutely do that. They've already demonstrated that they will, and they will be emboldened by it.

Most people who voted yes don't want to see those kinds of actions. Most 'yes' voters would be very happy for same-sex couples to be able to marry and for individuals to be able to express their freedom of speech in relation to their view of marriage. That's, I think, where most Australians would probably sit, but, with the way that our antidiscrimination laws are in our states at the moment, things often don't work out that way. And so supporting amendments that really support free speech and support the ability of the people to express their views and not have adverse action taken against them is, I think, thoroughly liberal and thoroughly important when it comes to freedoms in this country.

We've heard of some of the overseas examples, and I won't go over all of them, but I will point to one of them: the issue at Trinity law school in Canada. I don't think anyone would want to see us get to a situation in this country where, because someone goes to a faith based school, faith based law school or school for another profession which has a traditional and conservative view of marriage, they would somehow not be able to practise in their profession. I think that would be an outrageous restraint on freedom of religion. And we don't want to get to that point.

Again, I made the point earlier that we have this opportunity now, as we debate this bill, to make a decision. We've dealt with one part through the plebiscite, and that is: should same-sex couples be able to marry? The Australian people have said yes, so that's going to happen. Then the question is: Do we want to see some of the negative flow-on impacts that we've seen in other countries and the restrictions on freedoms and the pitting of one part of our community against another? Or do we want to take some sensible steps, some sensible safeguards, in accordance with international law, and say, 'Let's try to avoid that. Let's learn from other countries and try to make sure that in passing this we don't exacerbate that divide and the ability of some people to use our antidiscrimination laws effectively to shut people of faith up'? Yes, it's happened before. The fear is that it will potentially get worse in the future.

We saw the intentions of some in our community when it came to Pansy Lai. We saw the disgraceful targeting of Pansy Lai because she happens to have a view on marriage. In the view of some activists and the view of thousands of people who signed a petition, people like Pansy Lai shouldn't be able to practise as doctors, because they have a view of marriage that is currently expressed in our law but will not be in a couple of weeks time. I would argue that it will be harder for future Pansy Lais—or medical boards or others—to resist those kinds of things when the law of the land has changed. So putting in place some sensible safeguards seems to me to be very reasonable.

I want to make one other point in relation to Safe Schools and parental choice. When you ask virtually any parent faced with some of the material around things like the Safe Schools curriculum, whether a parent should know about that and have the opportunity to withdraw their child from those kinds of classes, you get an overwhelming response in the affirmative: that they should. As Senator Fawcett has pointed out, in accordance with their rights under the international covenant on the religious and moral instruction of their children, parents should be able to withdraw their children from those classes. This is something that is worth fighting for. People who are voting on these amendments would do well to consider whether they want to vote for that kind of situation, whether they want to vote against an amendment that would protect those rights.

No doubt we're going to hear from others who will argue the opposite. But go out there into the community and say, 'No, I don't support the right of parents to be able to withdraw their children from those types of classes,' and see how you go. During the campaign we saw the absolute distancing from things like Safe Schools, whereas some of the Greens senators in their contributions earlier this week said that we should absolutely bring the issue of Safe Schools and the issue of same-sex marriage together. It absolutely doesn't have to be, because we've got the opportunity here in this chamber, and when it's debated in the House of Representatives, to say, 'No, we do support parental rights.' I support parental rights. I think the vast majority of our constituents support parental rights in these areas. I would say to senators: demonstrate that you support those rights by voting for some of these amendments. Demonstrate that you don't want to see people discriminated against because of their views on marriage, whether it's in employment, whether it's in speech or whether it is in these fundamental issues of parents' ability to determine the moral and religious instruction of their children.

Those are pretty fundamental things for me. I think they have been pretty important things for us as a political movement at the centre-right of politics. The ideas of freedom of religion, freedom of speech, parental rights and freedom of conscience are fundamental to who we are as Liberals and Nationals. I would rarely hear at a branch meeting or from our supporters that we should water down protections when it comes to freedom of speech, freedom of religion and parental rights. It's very rare, in fact, that I've heard a supporter of the Liberal and National parties arguing for that, and, I think, with good reason, because these things are foundational to who we are.

So, Chair, I put to you and, through you, to senators that these amendments are well worth supporting. In fact, voting against them will send a very negative message about our views about some of these fundamental freedoms. To those Labor senators who have expressed some of these concerns—and we heard some of those concerns expressed in their speeches—I think it is bitterly disappointing that you don't have the freedom to vote according to your conscience when we were told by your leader that there would be a conscience vote. So I repeat: we have a conscience vote on this side and there will be a conscience vote, presumably, on some of the crossbenches, but there won't be a conscience vote on these fundamental issues in the Australian Labor Party. I think it would be better if there were, but I commend these amendments to the Senate.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

I just want to remind all of us here and those who may be listening at home that we are debating marriage, because anybody that has been listening in for most of the last hour and a half might think we have, in fact, begun the debate that we're looking forward to having sometime next year about the far-reaching, complex reform of our antidiscrimination laws. Yes, that's needed. But I want to remind you that we're here because the majority of Australians have said they want change in our marriage laws to remove discrimination so that lesbian, gay, bisexual, transgender and intersex people can share in the rights of marriage along with all other Australians. It's pretty simple.

A lot of what we've been hearing about is, as I said, much more far-reaching discrimination—in fact, it is entrenchment of further discrimination. In fact, it's using marriage as a Trojan Horse to try to implement the right-wing agenda of the right-wing warriors of the Institute of Public Affairs. This is not about marriage; it's not what the majority of Australians want us to debate today. I would be almost tempted to leave my contribution there, because all of the other points, and certainly the far-reaching things that are included in these proposed amendments, do not belong in the Marriage Act—full stop. There are some significant issues, some concepts, some debates that we almost certainly do need to have as a country. When does one person's religious freedom become another person's discrimination? That's basically what we're talking about—how do you weigh up people's freedom to manifest their religion? When does that then becomes a discrimination?

In other countries around the world, that's done through having a human rights act, a bill of rights or a charter of rights so that you can actually have the legal cases that say, on the one hand, 'This is my right to manifest my religion,' and say, on the other hand, 'By you manifesting your religion that way, you are discriminating against me as an LGBTI person.' That's where we need to be having that debate and resolving those issues. We cannot resolve it—and we shouldn't be resolving it—in the Marriage Act.

I want to quickly talk through some of the key themes that have been raised in the debate this afternoon. Firstly, there is the completely wrong assertion that anything that is in this bill is going to impact upon freedom of speech. There is nothing in this legislation that is going to impact upon people's freedom of speech. Once this legislation goes through the parliament, our legislation over freedom of speech is going to be as it was before. It's interesting that, of the legal cases that have been raised—and we've had a range of Australian cases that have been referred to—none have been through the full legal process. We've heard about Archbishop Porteous a number of times. That legal case was not completed under Tasmanian antidiscrimination law. It probably would be appropriate for a test case of that sort to be completed so that we then know where we stand under Tasmanian antidiscrimination law. But it hasn't been completed at the moment, so you cannot use it as an example as to how this bill is going to impact upon freedom of speech. The other cases we have been talking about are all in jurisdictions that have very different antidiscrimination laws. In fact, they all have bills of rights. They all have the ability to be judging whether someone's freedom of religion is impacting too detrimentally upon somebody else's rights. They are not applicable to the Australian situation, and nothing in this law is going to impact upon Australians' freedom of speech.

The second point I want to raise is about the incredibly far-reaching elements of the antidetriment laws that have been proposed here. They've been described as a shield—absolutely, they look like a shield. They mean that anybody would have the ability to say the most outrageous, offensive, bigoted things against lesbian, gay, bisexual, transgender, intersex or queer people, or about their relationships, their children or how fit they are to be parents, and no-one could take action against them. Under our existing antidiscrimination laws they would not be able to take action if this antidetriment clause were put in place. That would be enabling the most far-reaching discrimination against LGBTI people, far beyond anything we have seen or are experiencing currently in Australia. It would be an extraordinary development, not in antidiscrimination but in discrimination against LGBTI people, which is exactly what the Australian people did not want to see. The Australian people wanted to see removal of discrimination under marriage.

Finally, I want to go to the issue of so-called parental rights, which is the whole issue of what is taught in schools. Frankly, I see this as being a last-ditch effort to basically not accept that lesbian, gay, bisexual, transgender and intersex people exist. They exist in schools. Young kids know that they are trans. They know that they would like to affirm the gender that they really are. Whether parents like that, whether the schools like that, whether the authorities like that or support that, it doesn't negate the fact that they exist. We know that supporting young trans, gay, lesbian and bisexual people in our schools is incredibly important, because it does save lives. It's particularly the case where you have a young trans person or a young same-sex-attracted person whose parents are very unaccepting of their sexuality or their gender identity. They are the people who are most at risk. They're the people who most need the support of their school community, of their peers, because they are the people whose lives are going to be saved by having that supportive school environment. The sorts of discrimination against those young people that would come into place if these amendments were put into place would be extraordinary. It would almost certainly result in more young people taking their own lives. I know that's an extreme thing to say, but it is true. We know that having programs like Safe Schools in schools saves lives. It is shown; it is proven.

So that is what we are talking about. We are talking about accepting that lesbian, gay, bisexual, transgender, gender fluid, gender diverse, intersex and other queer people really exist and deserve to have the support of our society so that they know they are accepted by society, that they are valued and that they are cherished. That is what is under attack by the sorts of amendments that are being proposed this evening.

Concetta Fierravanti-Wells (NSW, Liberal Party, Minister for International Development and the Pacific) Share this | Link to this | Hansard source

I really am concerned about where the debate on the Marriage Amendment (Definition and Religious Freedoms) Bill is going. Senator Rice—really!—if you're going to make those sorts of statements you need to come in with some evidence. I'm sorry, Senator Pratt, perhaps I misunderstood you, but equating concerns about marriage to concerns about a pork chop—I mean, really! Is that what we have deteriorated to?

I would like to make some observations about the Ruddock committee. As senators will recall, Philip Ruddock and I were appointed in 2005 to embark on a national conversation about citizenship. As a consequence of that appointment, Philip and I undertook extensive consultation. It took us about a year to produce a report, and it took even longer for the recommendations to ultimately find their way into our parliament to be enacted as legislation. It is very disappointing—and I associate myself with the comments that have been made by other senators—to see members of the Labor Party who we know hold views and have expressed concerns in relation to this effectively being muzzled, because they're not allowed to exercise their conscience on this very important thing. Of course, they have now been told there's going to be this Ruddock report. But, rest assured, if you are going to do a comprehensive report and take a comprehensive look at this issue—which I think is a lot more complicated than the citizenship work that Philip and I did—it's going to take a long time. So we are not going to have recommendations coming to our chambers for a long time, and this issue is going to continue for all of that time. Some of you are saying, 'No, we don't want to put in any protections at this point.' Does that mean we are going to continue with this debate for the next year or two?

Senator Rice and others who have spoken: you too need to accept that, for some people, marriage between a man and a woman is a fundamental bedrock issue for their family. Many millions of migrants to this country hail from traditions and cultures where the family, and marriage between a man and a woman, has been the bedrock institution upon which their heritage has been founded for millennia. Many Australians of different heritages and faiths strongly believe this and want this to continue. They are very concerned about a change to the definition of marriage—and rightly so. They have a concern that their culture, which has been focused on the family, is going to change if marriage is redefined. Their concerns centre on the rights of parents in particular—I know because they have raised this directly with me in many different settings. Parents from different backgrounds want to raise their children and have them taught in schools consistent with their own culture and their own religion. Their concerns centre on their freedom to think and to speak their own cultural and personal views. Their concerns are centred on their faith. With many different faiths practised among Australia's diverse communities, and with many different faith based schools in Australia, their right to practise their faith freely and fully is absolutely of concern. These are the very people that those opposite profess to represent, especially in Western Sydney. I'd like to be a fly on the wall when people like Sam Dastyari and others—

The CHAIR: Senator Fierravanti-Wells, please remember to address senators by their correct title.

I'd like to be a fly on the wall when Senator Dastyari and others have the conversation with leading community and faith leaders in Western Sydney. What are they going to say to them?

They will say: 'We let you down. We're really not interested in your views. We're happy to have you. We're happy to stack you into our branches, but we're not interested at all in protecting your rights, listening to your concerns and affording you the protections that we know you deserve but that we are not prepared to give you, because we've been gagged. Sure, we want you to vote for us, we want you to stand in our booths and we want you to sit in our branches, but we're not going to be prepared to respect your religious views and most especially your concerns about issues pertaining to parental rights and issues in your schools.'

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I'm only going to speak for a short time, but I have been in here for 45 minutes listening to this, and I tell you what, Senator Fierravanti-Wells: if I were Senator Dastyari and I were speaking to the leaders of those religious minorities you referred to, what I would say to them is: 'The reason I've taken my stance on marriage equality is the same reason I support you: because I support minority groups. I support groups that have been persecuted and discriminated against in this country.' That's the simple answer to that question for Senator Dastyari. If he wants a simple answer, that's a good one. That's exactly what we're doing here today: we're trying to pass legislation that prevents discrimination.

I have listened to some absolute tripe in here about Christian values from your side of the chamber. As I said in my first speech on this topic, I was a practising Christian myself until my early 20s and, when I think of Christianity and Jesus, I think of love, I think of compassion and I think of understanding—everything that I'm not hearing from your side of the chamber today about LGBTIQ people in this country and elsewhere who have been discriminated against, who have been persecuted and who are under pressure.

So let's cut the crap—all the religious crap. There are a lot of people in here and outside this chamber who are religious and who do support equal marriage. It's not just those out there saying, 'We have to have our conservative values in place.' It's almost as if we've gone from 1,500 years of having a church-controlled state to a situation where suddenly now we might have a state-controlled church, where this legislation is somehow going to impact on the power of the clergy and religion in this country. We can accept everyone's views in here. We can accept diversity, but I'd like to see at least something from your side of the chamber here in this debate today that says there are Christians out there that believe in love, in compassion and in understanding other human beings for what they are. I'm very proud that I'm one of those people, and I'm sure there are lots of other Australians. So please, when you're addressing these issues, at least be equal and fair in your statements.

The CHAIR: Just before I give you the call, Senator Smith, I remind senators to make their comments to the chair and not across the chamber.

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

I'd just like to reflect briefly on what I thought was a correct sentiment from Senator O'Sullivan. Senator O'Sullivan said, 'We must think carefully and steadily about these issues.' While Senator O'Sullivan's reflection is accurate, it's misplaced in terms of the context in which he made it.

The discussion we're having here this afternoon brings into stark relief an important point that is often lost on many people. That is that the bill that's before the chamber is a marriage bill, full stop. It's a bill that gives effect to same-sex marriage while at the same time protecting people's religious views about marriage, full stop. The issues that have been raised here in regard to parental rights, no-detriment clauses and charities—which no-one has mentioned yet—are issues that I agree are worthy of more detailed and comprehensive examination. In fact, that is, again, what the Senate committee report said. It did not reflect on parental rights or Safe Schools. It did reflect briefly on the issue of the no-detriment clause and it said that these things deserve much more detailed and comprehensive examination, because they're actually new concepts in the Australian legal architecture. They are untested, they are unorthodox and they require careful consideration.

There is a solution. There is a pathway forward. I have heard many senators reflect on the suitability or otherwise of the expert panel. I'm a public and private enthusiastic supporter of the expert panel process. Just for my coalition colleagues: let's reflect on a couple of things.

The contentious 18C freedom of speech debate did not get resolved to everyone's satisfaction, but there was progress because the contentious and sensitive issue of free speech in 18C was put into a process—the Parliamentary Joint Committee on Human Rights process. Out of that process came a report; out of that report came legislative change. What we're doing here, what the government itself has done and what the cabinet has endorsed is to establish a very detailed and, I think, trustworthy mechanism, chaired by no other than Philip Ruddock, to address all of these issues and other issues. So there is actually a pathway forward to allow these more contentious issues—these issues that extend beyond the issue of this marriage bill—to be dealt with and to ensure that they're done in a very comprehensive and confident manner, using the skills of Father Frank Brennan, the skills of Professor Rosalind Croucher and the skills of some others on that expert panel.

If these issues are worthy, they are worthy of considered, calm and careful consideration—to again use Senator O'Sullivan's words. It is not right to construct a broad bill that captures parental rights concerns and no-detriment clauses, because that is not a responsible way to legislate for these issues. And more than that, to legislate on these sorts of issues, particularly the no-detriment clause provision, without more thoroughly examining the situation is bad policy.

People listening this afternoon can be forgiven; they might think we're re-prosecuting the postal survey campaign. But no-one doubts that for some people the issue of parental rights and the issue of Safe Schools are legitimate concerns. There's no doubt. The committee has reflected on this and it's in the report: there's no doubt that some people think that a more detailed examination of the no-detriment arrangements is worthy. The question is: do you do it in a knee-jerk, reactive way, where you give colleagues a matter of hours or a matter of days to consider your amendment? Or do you do it in a more thorough, considered manner, with trusted people who enjoy public confidence? People like Philip Ruddock. Over the last little while we've heard lots of things said. I don't doubt that they are issues worthy of further examination. But they are not worthy to be put into this bill this evening or tomorrow, because that is an irresponsible way in which to legislate.

I do have a lot of confidence in the expert panel process. I'd go so far as to say that the fact that the terms of reference have not yet been set for the expert panel is a good thing, because it does mean that these sorts of considerations at the conclusion this chamber's deliberation on this very narrow bill can be properly incorporated into the terms of reference and given the thorough examination that they deserve—because the issue of freedom of religion or religious freedom in this country extends beyond the lens of Christian religious freedom. Much of what we have heard here today is a discussion about Christian religious freedom. In a country like ours, the religious freedoms of others and other faiths deserve to be understood, discussed and accommodated. How we do that is complex, and I'm sure that coalition senators would agree with me, or at least concede that point: it is a matter that is going to require careful consideration. Parental issues should not be dealt with in a bill like this. No-detriment clauses which are untested, untried in Australian law, should not be imported into a bill like this. The responsible approach on these matters captured in this amendment are best dealt with through the expert panel process.

Now, it's worth noting as well that something that has not been touched on in contributions by others thus far is the protections that have been offered to charitable concerns, which are captured in this amendment. This was an issue that I was particularly alert to because it's worth noting that charities, as a matter worthy of attention, were not included in the government's exposure draft. You could make one or two conclusions or interpretations from that: they were overlooked or they were consciously excluded. The bill that's before us is silent on the issue of charities, so I took it upon myself, during the course of last week, to write to both the Australian Commissioner of Taxation and the Acting ACNC Commissioner to get clarity, to get certainty, that there was nothing in this bill that would adversely impact upon charities. I am pleased that they were able to provide timely responses to me, and I'm grateful to them for that. I'm happy to table the two letters that I received from the Taxation Office commissioner and the charities commissioner.

Before I do, let me just briefly capture some of those comments for the record. I asked the charities commissioner two questions. The first was whether a religious charity that currently holds and/or expresses a view of or a position on marriage will be able to continue to do so without any negative impacts on its charitable status following the enactment of amendments to the Marriage Act to allow same-sex couples to marry—that is, the future act. 'The short answer', the commissioner said to me, 'to this question is yes'. The second question I asked the charities commissioner was whether the lawful refusal to conduct a marriage ceremony, deliver goods or services, or hire facilities to same-sex couples or other couples in accordance with the future Marriage Act and current exemptions in federal, state and territory antidiscrimination laws would result in any adverse consequences in relation to an entity's charitable status. 'The short answer', he says in his correspondence to me, 'is no'.

For the sake of completeness, the Australian Taxation commissioner says:

… a religious charity holding or expressing a view of a religious nature (position on marriage) will not have an impact on DGR endorsement.

He goes on to say:

Similarly, lawful refusal to conduct a marriage ceremony, deliver goods and services or hire facilities in accordance with the Future Marriage Act will be unlikely to impact DGR endorsement. These activities would fall outside the scope of the general DGR categories and would not prevent DGR endorsed religious charities from fulfilling their DGR purposes.

There's an important point that has been overlooked in many of the contributions today: we are not legislating for same-sex marriage in the absence of religious protections, but we are legislating for same-sex marriage in our country while very, very conscious that religious protections already exist in other places of Australian law. And not only do they exist; they actually operate, and operate well, as demonstrated by the letters from the charities commissioner and by the letter from the Australian Taxation commissioner. I'd go on to say that the existence of these laws and the operations of these laws can give people great confidence in legislating for same-sex marriage and that, combined with the religious protections regarding people's views of marriage which are in this bill, they can give people great confidence.

There are two world views at play in this chamber this afternoon. One world view that I happily subscribe to is that by legislating for same-sex marriage, in the context of Australia's existing laws, nothing much happens except more people can enjoy the institution of marriage, can be embraced by their families and can enjoy the benefit of having one less plank of discrimination. The other world view is that somehow the world ends for Australians and Australian families. That's just not true. It is just not true. And you don't have to put your faith in Senator Smith or put your faith in anyone else; you just have to go to New Zealand, go to Canada, go to the United Kingdom and see people getting about their business and getting about their lives. It is not right to compare the Australian legal framework with the legal framework of other like nations. The existence of bills of rights and charters of rights significantly changes the application of laws in those countries. That was a point that was made at the Senate committee hearings. I understand that they are compelling debating points for people, but they are just not suitable and just not appropriate in this context.

The issue of the no-detriment clause is one worthy of great caution, again, because the Senate committee report did state that the current protections for religious freedom do need to be enhanced, most appropriately through the inclusion of 'religious belief' in federal antidiscrimination law. The Senate committee report does not say that these things should be ignored or overlooked; it provides a pathway. Importantly, though, the issue was not canvassed extensively during the inquiry and was not proposed in the government's own exposure draft. If the government was not proposing it in its own exposure draft, what does that say about not just the necessity of it but the legal risk that the government was or was not prepared to take? The committee report went on to say that further examination of the potential form and consequences of a no-detriment clause would be required before it could be recommended by the committee—a prudent approach for legislators.

That is not to dispute whether these are important issues for consideration. The point is that these amendments do not deserve to be supported because they do not fit into the marriage bill that is before this Senate chamber. They are worthy of more detailed consideration by the expert panel that's been established by the government and endorsed by the cabinet—a process that I personally have a lot of trust and faith in—because we have seen in recent times that when issues are put into such a process they are dealt with calmly and comprehensively. You can look at 18C and free speech as an example. People's needs and concerns can be properly met, understood and legislated for if the need arises.

I would point out that we have heard little or nothing in the contributions this afternoon about the deficiencies in Australia's current laws providing for religious protections. I challenge proponents of amendments to this bill by saying: that is your first task—what is the failing in the current legal architecture around religious protections? I will not be supporting these amendments.

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

I want to respond quickly to a couple of those comments. As senators would be aware, I chair the Joint Standing Committee on Foreign Affairs, Defence and Trade. Following on from the Senate select committee inquiry and the evidence there that said religious freedom wasn't adequately protected in Australia, the Human Rights Subcommittee has been conducting an inquiry. Whilst I can't talk to the content of the report, which will be coming out very soon, what I can say is that the evidence given to that inquiry, including by the Australian Human Rights Commission, indicates that the protections for religious freedom in Australia are indeed lacking, in both consistency and substance, and the interplay between federal and state laws is an issue. The United Nations' sixth periodic review of Australia likewise highlighted that Australia has very poorly implemented any protections for religious freedom in law. That is why we have the issue that state antidiscrimination provisions are the things causing detriment to people, not so much federal law. While Senator Rice made the point that nothing in this bill will lead to an issue for people of faith, it is the action of state and territory antidiscrimination laws that is already, even before the law has changed, causing issues. My colleague Senator Smith said, 'Why don't you go to New Zealand and see the sky hasn't fallen in?' You don't have to go that far. Just go to Tasmania.

We heard from Senator Rice that we should stop referring to Archbishop Porteous. I won't. How about we refer to Mr Markham and Mr Gee, two gentlemen who have been taken before the commission in Tasmania because they put forward their support for traditional marriage?

Unlike Archbishop Porteous, who had the Catholic Church, with relatively deep pockets, to fork out the tens of thousands of dollars for their legal fees, here we have two people who are genuinely not highly paid in the professions they do, and tens of thousands of dollars could indeed prove to be devastating for them in terms of their family finances, mortgages, houses et cetera. Figuratively, for those people, the sky may well fall in terms of what they are exposed to currently. This is not an overseas jurisdiction. This is happening right now in Australia to two people who have expressed their view about the traditional definition of marriage. So this is not a figment and not a forecast from somewhere else; this is happening right now. The concern with pushing things off into an inquiry, as we heard from Senator Fierravanti-Wells, and as has been acknowledged the last time we tried to align antidiscrimination laws, is that it takes a long time.

I have one other comment to Senator Smith, who said, 'This government bill.' I remind senators that it didn't go through the cabinet or the party room. It was not a government draft bill that was put out with the provisions for the plebiscite, which were not supported in this place. Finally, there is another amendment which deals with charities. I will talk about that in more detail later.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I want to add to Senator Fawcett's comments and expand on them about charities specifically. Senator Smith made the observation in his contribution that there had not been much comment about charities in this amendment. That's because this amendment doesn't deal with charities. It deals with charities in a tangential way, which I will go to. But, as Senator Fawcett said, there is a standalone charities amendment, on sheet 8329. I assure you we will be speaking at great length about charities during debate on that amendment and, particularly relevantly, about the ATO's letter and the ACNC's letter.

The way in which this amendment deals with charities is in one narrow sense. It's in section 88K, the anti-detriment clause, which protects individuals from unfavourable treatment. It says that, in the provision of economic benefits including grants, funding or subsidies, an organisation or individuals can't be discriminated against because they hold a traditional marriage belief. What that means is a government department, for example, which hands out grants cannot decline to provide it to an organisation or remove it from an organisation based solely on its view on marriage. As relevant and interesting as letters from the ATO or ACNC commissioners are, they have no power over the granting of government funding and it is not relevant to this part of the amendment. If you want to ensure that a government department or agency cannot take away a grant to an organisation—for example, a religious charity—because that charity has a view on marriage while also delivering services through that grant, then the only way to ensure that can't happen is by voting for these amendments.

The CHAIR: The question is that amendments (1) to (10) on sheet 8327, as moved by Senators Fawcett and Paterson, be agreed to.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

) ( ): (In division) Madam Chair, perhaps I'm a little late, but, again, can we vote on these amendments separately, because I agree with all but the last of the proposals here?

The CHAIR: Just so we're clear, do you mean amendment (10) on sheet 8327?

The right to remove children from schools. I do agree with that, but not in this bill.

The CHAIR: As I understand it, Senator Macdonald, it is clause 88R within amendment (8). You would need to seek leave because we are now in the division.

I seek leave to have that one voted on separately.

The CHAIR: Yes, you need the leave of the committee. Is leave granted? Sorry, Senator Macdonald, leave is not granted.

I didn't hear that, Madam Chair. Did someone refuse?

The CHAIR: Yes, Senator Macdonald. As you know, only the one voice is required, and there was at least one voice. Before returning to further amendments, I want to address the point of order taken by Senator Macdonald when the committee reported prior to question time.

It is appropriate for me, as Chair of Committees, to rule on points of order in relation to committee proceedings, although I appreciate that the timing of the proceedings meant it was opportune of Senator Macdonald to raise the issue when he did. Senator Macdonald had sought to have the question dealt with before question time further divided for a group of amendments before the committee on which the committee had already proceeded to divide. As noted in Odgers' Australian Senate Practice at page 283:

In practice, the chair divides a question … at the request of any senator, so that no senator is compelled to vote for or against two or more proposals in relation to which they may wish to vote differently.

It can be difficult to implement that practice, however, where the request to divide a question is not made prior to the question being put by the Chair. In addition, it is not possible for the Chair to divide a question once a division has been called on the original question unless leave is granted to call off the division. This is provided for in standing order 99(3).

As has now become clear, Senator Macdonald wished to vote differently on one amendment, which I understand has now been identified as amendment (7) on sheet 8326. As the question in relation to the amendment has now been determined, the vote cannot be put again except by leave. After my discussions earlier with Senator Macdonald, however, it is my intention to give Senator Macdonald the call, if he so wishes, so that he has an opportunity now to indicate on the record how he would have voted differently. Senator Macdonald, do you wish to take the call?

Thank you, Madam Chair. I appreciate the courtesy and also the courtesy of you speaking to me before. I think you indicated that, by leave, I could call for the vote to be reheld, but clearly it would haven't made any difference to the outcome. I did in taking the point of order make my point clear, but I appreciate the opportunity to make it absolutely clear on the previous set of amendments. The amendment dealing with the definition of marriage I would have voted against but for the other provisions, and that's why I wanted them divided. Similarly, while I'm on my feet, can I say in relation to the ones we've just dealt with now that, whilst I agree with the last of the amendments—about giving parents the right to take children out of school—I don't think it's appropriate in this legislation, so I would have voted against that on this legislation if we could have put the vote again. But the Labor Party refused leave to put the vote again, and so I've had to vote against all of those. That's probably not what I would have done had it been possible to divide them. Thank you for the opportunity, Chair.

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

I rise to address the amendments on sheet 8328, which should be fairly uncontroversial, I would hope. During the Senate select committee, the issue of chaplains—

Honourable Senators:

Honourable senators interjecting—

Cory Bernardi (SA, Australian Conservatives) Share this | Link to this | Hansard source

Could you resume a seat for a moment, Senator Fawcett. Honourable senators, I would ask that, if you have concluded your business in the chamber for the moment, you hastily make for the exists and keep your private conversations to a minimum. Before I call Senator Fawcett again, I perhaps might invite him to seek leave to move the amendments together if that were his wish.

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

by leave—I move amendments (1) to (13) on sheet 8328 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".

[short title]

(2) Schedule 1, item 2, page 5 (lines 1 to 4), omit subparagraph (b) (ii) of the definition of authorised celebrant, substitute:

  (ii) an authorised officer.

[consequential—authorised officers]

(3) Schedule 1, page 5 (after line 4), after item 2, insert:

2A Subsection 5(1)

Insert:

authorised officer means an officer (within the meaning of the Defence Act 1903), other than a chaplain, authorised by the Chief of the Defence Force under section 71A to solemnise marriages under Division 3 of Part V.

[definition of authorised officer]

(4) Schedule 1, item 4, page 5 (lines 9 to 12), omit all the words from and including "officer", substitute "authorised officer".

[definition of prescribed authority]

(5) Schedule 1, page 5 (after line 17), after item 5, insert:

5A After section 5

Insert:

5AD Determining when a belief is held etc.

  (1) For the purposes of this Act, a person holds a genuine religious or conscientious belief, or genuinely believes, if the holding of the belief (inclusive of the person's or entities beliefs as to the actions, refusals, omissions or expressions that are consistent with that belief)is not fictitious, capricious or an artifice.

  (3) For the purposes of this Act, if a chaplain or an authorised officer holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, then in holding, expressing or acting on that belief:

  (a) whether or not another person who is to be married is a man or a woman is to be determined by the chaplain or authorised officer; and

  (b) in determining whether the other person is a man or a woman, if the chaplain or authorised officer reasonably believes and genuinely believes that the current legal status of the other person as a man or a woman is different from the legal status of the other person as a man or a woman at the time of the other person's registration following the other person's birth, the chaplain or authorised officer may disregard the current legal status of the other person's sex or gender, or their gender identity or intersex status.

[determining when a belief is held]

(6) Schedule 1, item 6, page 5 (lines 18 and 19), omit the item, substitute:

6 Paragraph 21(2 ) ( b)

After "the chaplain", insert "or authorised officer".

[consequential—authorised officers]

(7) Schedule 1, item 22, page 12 (lines 12 and 13), omit the item, substitute:

22 Subsection 71(1)

After "a chaplain", insert "or an authorised officer".

[consequential—authorised officers]

(8) Schedule 1, item 23, page 12 (line 16), omit the heading to section 71A, substitute:

71A Officers authorised to solemnise marriages

[consequential—authorised officers]

(9) Schedule 1, items 24 and 25, page 5 (lines 20 to 25), omit the items, substitute:

24 Paragraphs 72(1 ) ( a) and (b)

After "the chaplain" (wherever occurring), insert "or authorised officer".

25 Subsection 72(2)

After "the chaplain" (wherever occurring), insert "or authorised officer".

[consequential—authorised officers]

(10) Schedule 1, items 27 to 56, page 12 (line 28) to page 15 (line 22), omit the items, substitute:

27 Section 74 (heading)

After "chaplain", insert "orauthorised officer".

28 Subsection 74(1)

After "the chaplain", insert "or authorised officer".

29 Subsection 74(3)

After "chaplain", insert "or authorised officer".

30 Section 75 (heading)

After "Chaplain", insert "or authorised officer".

31 Section 75

After "A chaplain", insert "or authorised officer".

32 Section 75

After "the chaplain", insert "or authorised officer".

33 Subsections 76(1), 77(1) and 78(2)

After "chaplain", insert "or authorised officer".

34 Section 79 (heading)

After "Chaplain", insert "or authorised officer".

35 Section 79

After "A chaplain", insert "or authorised officer".

36 Section 79

After "the chaplain", insert "or authorised officer".

37 Subsection 80(1)

After "a chaplain", insert "or authorised officer".

38 Subsection 80(1)

After "the chaplain", insert "or authorised officer".

39 Paragraphs 80(2 ) ( a) and (c)

After "the chaplain", insert "or authorised officer".

40 Subsection 80(4)

After "The chaplain", insert "or authorised officer".

41 Subsections 80(5) and (6)

After "the chaplain", insert "or authorised officer".

42 Subsection 80(8)

After "a chaplain", insert "or authorised officer".

43 Subsection 80(9)

After "the chaplain" (first occurring), insert "or authorised officer".

44 Paragraph 80(9 ) ( b)

After "the chaplain", insert "or authorised officer".

45 Subsection 80(10)

After "a chaplain", insert "or authorised officer".

46 Section 81 (heading)

Repeal the heading, substitute:

81 Power to refuse to solemnise marriage

Chaplain or authorised officer may refuse to solemnise marriage on any grounds

47 Section 81

Omit "A chaplain", insert "(1) A chaplain or authorised officer".

48 Section 81

After "the chaplain" (wherever occurring), insert "or authorised officer".

49 At the end of section 81

Add:

Chaplain may refuse to solemnise marriage on the basis of religious or conscientious beliefs etc.

  (2) To avoid doubt, a chaplain may refuse to solemnise a marriage despite anything in this Part or any law of a State or Territory, if any of the following applies:

(a) the refusal is consistent with the doctrines, tenets or beliefs of the religion of the chaplain's religious body or religious organisation;

(b) the refusal is because of the religious susceptibilities of adherents of that religion;

(c) the chaplain's genuine religious or conscientious beliefs do not allow the chaplain to solemnise the marriage.

Authorised officer may refuse to solemnise marriage on the basis of genuine religious or conscientious belief

  (3) Despite anything in this Part or any law of a State or Territory, an authorised officer may refuse to solemnise a marriage that is not the union of a man and a woman, if:

  (a) the officer holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; and

  (b) the holding by the officer of that belief does not allow the officer to solemnise the marriage.

Grounds for refusal not limited by this section

  (4) Subsections (2) and (3) do not limit the grounds on which a chaplain or an authorised officer may refuse to solemnise a marriage.

50 Subsection 83(2)

After "a chaplain", insert "or authorised officer".

51 Section 84 (heading)

After "a chaplain", insert "or authorised officer".

52 Paragraph 84(1 ) ( a)

After "a chaplain", insert "or authorised officer".

53 Paragraphs 84(1 ) ( b) and (c)

After "the chaplain", insert "or authorised officer".

54 Subsection 84(1)

After "the chaplain" (last occurring), insert "or authorised officer".

55 Paragraph 85(1 ) ( b)

After "a chaplain", insert "or authorised officer".

56 Paragraph 85(1 ) ( c)

After "the chaplain", insert "or authorised officer".

56A Subsection 85(1)

After "the chaplain" (last occurring), insert "or authorised officer".

[authorisation of officers / chaplains and authorised officers may refuse to solemnise marriages / authorised officers]

(11) Schedule 1, items 59 and 60, page 16 (lines 1 to 4), omit the items, substitute:

59 Subsection 99(3)

After "A chaplain", insert "or authorised officer".

60 Subsection 116(2)

Omit "celebrant or chaplain" (wherever occurring), substitute "celebrant, chaplain or authorised officer".

[authorised officers]

(12) Schedule 1, item 62, page 16 (lines 7 and 8), omit the item, substitute:

69 Paragraph 119(3 ) ( f)

After "chaplain", insert "or authorised officer".

[authorised officers]

(13) Schedule 1, item 63, page 17 (after line 24), after subsection 40(2AB), insert:

(2AC) An authorised officer in the Defence Force may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if the circumstances mentioned in subsection 81(3) of the Marriage Act 1961 apply.

[Sex Discrimination Act 1984]

The amendments here are relatively straightforward and, I would hope, uncontroversial. During the Senate select committee the issue of chaplains in the Defence Force, who have traditionally conducted marriages for servicemen overseas, came up. Whilst the initial discussion went to the fact that they are employees of the government and therefore should just carry out the law according to the civil definition of marriage, what became clear during evidence presented to the Senate select committee was that they are in fact appointed to that role by their respective denominations and therefore should and in fact do enjoy the same exemptions that apply to a minister of religion. That was accepted by the Senate report and indeed accepted by Senator Smith in his bill.

The workaround that the committee decided on was that the Chief of the Defence Force, if he had a force deployed overseas, should be able to appoint an officer to conduct weddings if there was a member of the Defence Force overseas who was going to get married. The purpose of this amendment is purely to recognise that, just as the Defence Force when it appoints somebody makes sure they have the relevant competence to do the task, the individual officer has the same human right under article 18 to their freedom of religion and belief. Therefore, the practical effect of this amendment would be that, before the CDF made that appointment, they would ask the officer concerned if they were happy to conduct same-sex weddings. If they were, the appointment would go ahead. If they weren't, because they do have that individual right to freedom of religion and belief, the CDF would make the appointment of another officer who was happy to do that.

As the bill currently stands, the CDF can make that appointment without taking regard of the individual's conscientious objection. Bear in mind that, unlike someone who works in a registry office, where this is the purpose they were employed for, in this case the officer of the Defence Force is employed in either the Air Force, the Navy or the Army for the primary purpose of conducting military operations, and this is a secondary duty. So the operational effect of this amendment would be that the Defence chief would need to check that the officer they wanted to appoint was happy to conduct same-sex marriage, and in that case that person would be appointed.

Louise Pratt (WA, Australian Labor Party, Shadow Parliamentary Secretary for the Environment, Climate Change and Water) Share this | Link to this | Hansard source

Currently the bill inserts a concept of 'marriage officer' into the Marriage Act to solemnise marriages within the ADF. This is an important principle. We oppose the amendments before us because in effect you are circumventing the very purpose of the legislation that's before us today, which is essentially that these military-appointed officers should operate in the same way that a civil celebrant does—that is, that they should uphold the antidiscrimination law and not discriminate in their practice as an officer within the military who is able to solemnise a marriage. We, as highlighted, did believe it was important that chaplains who are appointed within the military are not asked to do anything that is outside the official doctrine of their faith. So here we do not feel that we need to support these amendments.

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

I just make the point that this goes to the very heart of article 18.3, which is about limiting the manifestation of religion. It says that it must be necessary. In this case, if you have a force deployed overseas, the Chief of the Defence Force has a number of officers he or she could choose from to make this appointment, and therefore it is not necessary to completely override the individual religious or conscientious beliefs of any one officer when there are multiple officers in a deployment that the CDF could choose to make this appointment. So this would be an egregious breach of our obligations under international human rights law to completely override the individual conscience or belief of one person when there are many others on the deployment who could equally be appointed if they were happy to conduct the task.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

We will also be opposing this amendment. Senator Fawcett, I appreciate your explanation of why you feel this is necessary, but nonetheless what this is doing is allowing authorised officers to discriminate. The whole point of the authorised officers, as you have explained—and Senator Pratt and I were there when we had a discussion—was to have authorised officers so there was an alternative to chaplains and, if chaplains did not want to solemnise a marriage between LGBTI people, there would be somebody else who would be able to. It may be that the intent of what you are putting here is that you can choose the authorised officer that happens to suit, but what it means is that it gives the opportunity for any authorised officer to be able to not solemnise a marriage. That goes against the full intent of the whole concept of having authorised officers: that they are there performing a service just like a civil celebrant who is not in a Defence Force situation. So, as an authorised officer, it's their responsibility to solemnise marriages that are legal according to the laws of the land, without discrimination.

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

So, Senator Rice, on that basis would you accept an amendment if it were in a different form that said that the officer had the right of refusal and could refuse the appointment by the CDF if they had a conscientious or religious objection so that the CDF could appoint another officer who was happy to take the appointment?

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

I'll respond, but I'm not in a situation to respond to that and I think that the safest thing to do in these circumstances is to oppose this amendment, because there may be other consequences. Making legislation on the floor of the Senate is not an appropriate way of determining legislation. It really isn't an appropriate thing to do. We are looking at this amendment and we have realised—as it appears that Senator Fawcett didn't realise—what the concerns about this would be. We have realised that this is not an appropriate addition to this legislation.

Matthew Canavan (Queensland, Liberal National Party, Minister for Resources and Northern Australia) Share this | Link to this | Hansard source

I think this exposes the rank hypocrisy of those on the 'yes' side of this debate. I remember quite clearly, during the campaign, advertising from the 'yes' side of this debate that said—and I might be paraphrasing—something to the effect that a soldier in the military puts their own life on the line but can't marry the loved one of their life. But now those on the 'yes' side are not going to support an amendment that would allow Australians who are putting their lives on the line for this country to refuse to act against the faith that guides their life. They are fundamental principles that they adhere to. When these Australians are overseas, at risk of losing their own life, they deserve the minimum of respect that would allow them to not be put in the position of acting against their fundamental religious or conscientious views.

But we can tell that the other side are taking a winner-takes-all approach here. They are not interested in listening to the five million Australians who voted no. Indeed, they're not listening to the tens of thousands of Australians in the armed forces, who do things that probably very few of us here would ever have to contemplate: putting our own life on the line to defend our nation. They want to put those Australians in that position while they themselves safely go to bed every night without having to worry about their loved ones or their lives. They want to live under the protection and safety of our armed forces, but they don't want to respect those same Australians' fundamental religious or conscientious views. It is hypocrisy in the extreme, because they come in here and present themselves as being against discrimination, against prejudice, welcoming of all different views.

We've already seen on other amendments that they don't do that, but this is so stark—that the people in our defence forces can't have their fundamental religious or conscientious views respected. I can't believe we're in the nation's parliament traducing those fundamental rights in the way we're about to by opposing these very reasonable, narrow and limited protections to those Australians who are willing to put their lives on the line to protect the safety of our country and stand up for the fundamental rights that should exist in this country, including the right to religious freedom.

Cory Bernardi (SA, Australian Conservatives) Share this | Link to this | Hansard source

I want to put on the record how I found Senator Rice's contribution when she was put on the spot to justify her position. She was entirely unable to. She made an argument, which I'm very familiar with, that decisions have consequences. Gee, where have I heard that before? And sometimes it's right just to say no. Gee, I've heard that before, as well. But clearly Senator Rice made those decisions and those statements because she was hoist on her own petard. Her justifications for rejecting the amendments moved by Senator Fawcett were dismantled. They were shown as absolutely unrelated. When Senator Fawcett offered to amend his amendments to accommodate any concerns that Senator Rice had, she said, 'No; you don't make legislation on the floor of the Senate.' For goodness sake: where do you make it, if you don't make it on the floor of the Senate? What a foolish statement—hoist on another one.

The problem we have here is that these are very sensible amendments identifying very real concerns. I said during the second reading debate that I have no ill will. We lost, fair and square, and the 'yes' voters can do whatever they like on this. But, please, would you consider accommodating some genuine concerns around religious protections, around familial protections and around freedom-of-speech protections? That's all we ask. And it's abundantly clear that those on the 'yes' side of the chamber are not prepared to concede anything. They are not prepared to give an inch—something for which, during the campaign, they mocked and derided those of us who spoke up about the concerns of millions of Australians.

It saddens me because I know this is meant to be a joyous time for those who want to get married to their same-sex partners, when what they've for a long time been asking for is going to come to fruition. We've asked to be given the respect of having these very reasonable protections considered. And I'm ashamed to say, Senator Rice, that you've just exposed how weak, hollow and flawed your ideological obsession with this truly is. It is an indictment on you that you don't think it's okay to make—

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Senator Bernardi, please address your comments through the chair.

Cory Bernardi (SA, Australian Conservatives) Share this | Link to this | Hansard source

It's an indictment on senators, Chair, that they don't think the Senate chamber is the place to make legislation. If that's the case, you have to ask: what are they doing here?

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

As Senator Rice has raised her concern that the intent of this is to enable people who would be authorised officers to discriminate, I rise to make the point again that the intent of this is to lay down a competence check. If they are going to appoint someone to be the commander of a ship, the ADF, before they appoint someone, check if the person is competent to do it, have they had the training and do they have the requisite personality et cetera to command. Recognising that an individual could have the right of objection just means that they will seek the appropriate person to appoint. So the intent is not to allow someone who is appointed to then say, 'I'm not going to do it'. The intent is for that person to not be appointed if they have that objection to it.

As I said, there are many other options, but this goes directly to article 18.3—that is, any limitation must be necessary, and this is clearly not necessary. If Senator Rice is not prepared to make legislation on the floor of the chamber, then I would invite her, if this is going to be voted down, to go to her colleagues and to consider it before it goes to the House. If an amendment were moved in a different form, where we actually tell the ADF how they can and can't make appointments and said, 'Thou shalt not appoint someone who has an objection', if that satisfied the concern, then it would still at least achieve the outcome of respecting the individual rights—bearing in mind that human rights are individual rights, which would then mean that you could still achieve the outcome you want without offending the individual right of a person in the ADF.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I want to place on the record the fact I won't be voting for this amendment and to explain why. I suspect the origins of this amendment might be traced to my own Freedom to Marry Bill, which I introduced in 2014. My view is that a civil celebrant who is not a public servant, not an employee of the government, should be free to choose who they want to marry, and that includes the gender of the people who are seeking to be married. One of my amendments is intended to achieve that, and I think it's the best of the three or four options—I'm not sure how many there are now—available.

However, what we're talking about here are public servants. This amendment seeks to create a category of celebrants, non-chaplain Defence Force celebrants, and to allow them to refuse to solemnise a marriage if they have a conscientious belief. Now this is, I think, contrary to the liberal principle of equality before the law. Equality before the law says the government does not discriminate. That's a very important principle. For a civil celebrant to discriminate in private life is a completely different matter, and I'm actually very uncomfortable with the extent to which the government already intrudes into that area of private belief. It is a civil society matter, and the government should really think twice about sticking its nose in there.

But when the celebrant is acting on behalf of the government, they should not distinguish between the people who come before them. It doesn't matter if the military celebrant, the public servant celebrant, has a conscientious belief; they are still bound by their job. They are acting on behalf of the government. In my 2014 bill I provided for that by saying they have to find somebody else. If they can't find somebody else, they still have to perform the wedding. But if they can find somebody else and get themselves out of that situation, then I have no objections to that. I think that same position would still apply. But this particular amendment takes exactly the opposite approach, and for that reason, because I think the government should never discriminate, then I'm afraid I can't support it.

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

Senator Leyonhjelm again misinterprets the amendment. The amendment is to prevent the appointment. I would have thought, as a libertarian, Senator Leyonhjelm would have supported an amendment that prevented the forced appointment of someone who had a conscientious objection. The amendment is intended to highlight they have an individual right, so the ADF will choose someone else to make the appointment. Once they are appointed, as Senator Leyonhjelm said, they absolutely have an obligation to follow through and conduct the wedding, but the intention is to respect the right of someone to say, 'I prefer not to have the appointment, because of my belief.'

The CHAIR: The question is that the amendments (1) to (13) on sheet 8328, moved by Senator Fawcett, be agreed to.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

by leave—I move amendments on page 8329 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".

[short title]

(2) Clause 2, page 2 (table item 5), omit "Part 5", substitute "Parts 4A, 4B, 4C and 5".

[consequential—charities]

(3) Schedule 1, page 5 (after line 17), after item 5, insert:

5A After section 5

Insert:

5AA Meaning of entity

(1) For the purposes of the Act, an entity means:

(a) an entity (other than an individual) within the meaning of section 184-1 of the ANew Tax System (Goods and Services Tax) Act 1999; and

(b) a non-entity joint venture within the meaning of section 195-1 of the ANew Tax System (Goods and Services Tax) Act 1999.

Note: The term entity includes body corporates, body politics, partnerships, unincorporated associations or other bodies of persons, trusts and superannuation funds.

(2) For the purposes of subsection (1), an entity is an entity regardless of whether:

(a) the entity is for-profit or not-for-profit; or

(b) the entity is a religious body or organisation; or

(c) the entity operates to make a profit or not.

5AB Meaning of relevant marriage belief

(1) A person holds a relevant marriage belief if the person holds:

(a) a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or

(b) any one or a combination of genuine religious or conscientious beliefs that are constitutive of, supporting of or a corollary of the belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, which beliefs may include, without limitation, any of the following beliefs:

  (i) a marriage that is not a union of a man or a woman is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person;

  (ii) the family structure of a man and a woman united in marriage with their children is a fundamental building block of human society, and this family structure has significant advantages for the nurture and raising of children;

  (iii) sexual relations should only occur within a marriage, understood as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life;

  (iv) the gender difference and complementarity of men and women is an inherent and fundamental feature of human society and is reflected in the gender difference and complementarity of a man and a woman united in marriage;

  (v) a fundamental feature of a marriage between a man and a woman is the modelling for children born from, or raised in, that marriage of the gender difference and complementarity of the man and the woman;

but for the avoidance of doubt, does not include the belief mentioned at paragraph 5AC(1) (b).

(2) An entity holds a relevant marriage belief if the entity has adopted:

(a) a belief mentioned in paragraph (1) (a); or

(b) one or more beliefs mentioned in paragraph (1) (b);

as beliefs the entity holds.

5AC Meaning of relevant belief

(1) A person holds a relevant belief if the person holds:

(a) a relevant marriage belief; or

(b) a genuine religious or conscientious belief that:

  (i) a same-sex relationship is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person; or

  (ii) the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth; or

  (iii) any one or a combination of genuine religious or conscientious beliefs that are constitutive of, supporting of or a corollary of a belief mentioned in subparagraphs (1) (b) (i) or (1) (b) (ii).

(2) An entity holds a relevant belief if the entity has adopted:

(a) a belief mentioned in paragraph (1) (a); or

(b) one or more beliefs mentioned in paragraph (1) (b);

as beliefs the entity holds.

5AD Determining when a belief is held etc.

(1) For the purposes of this Act, a person or entity holds a genuine religious or conscientious belief, or genuinely believes, if the holding of the belief (inclusive of the person's or entity's beliefs as to the actions, refusals, omissions or expressions that are consistent with, a consequence of, made in connection with, based upon, constitutive of, supporting of, or a corollary of that belief)is not fictitious, capricious or an artifice.

(2) For the purposes of subsections 5AB(2) and 5AC(2), but without limiting those subsections, an entity may state or adopt a belief as a belief the entity holds by:

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

(b) adopting principles, beliefs or values of another entity which include the belief;

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

(d) acting consistently with that belief.

[determining when a belief is held]

(4) Schedule 1, page 15 (after line 26), after item 58, insert:

58A After Part VA

Insert:

Part VAA—Freedom of thought, conscience, religion, expression and association in relation to holding certain beliefs

88N Non -discrimination in the allocation of funding

(1) Despite any law, it is unlawful for the Commonwealth, a State, a Territory or a government entity to:

(a) decline to provide funding; or

(b) impose a condition on funding that is provided;

that discriminates against a person or an entity because the person or entity:

(c) holds a relevant belief or a relevant marriage belief; or

(d) acts, or refuses or omits to do an act, because the person or entity genuinely believes that the action, refusal or omission is consistent with the relevant marriage belief or relevant belief; or

(e) expresses the relevant marriage belief or relevant belief.

Note: For paragraph (1) (a), an example of funding is a grant made by the Minister under Part 1A of the Act.

(3) In this section:

government entity means:

(a) a government entity (within the meaning of the A New Tax System (Australian Business Number) Act 1999); or

(b) an entity established by or under a law of a State or Territory.

88O Charitable status

(1) An entity does not fail to satisfy the requirement in subparagraph (b) (i) of the definition of charity in section 5 of the Charities Act 2013 for the reason that:

(a) the entity holds, expresses or acts upon a relevant marriage belief or a relevant belief; or

(b) the entity refuses, or omits, to do an act because the entity genuinely believes that the action, refusal or omission is consistent with the relevant marriage belief or relevant belief.

(2) For the purposes of paragraph (c) of the definition of charity in section 5 of the Charities Act 2013, a purpose of an entity is not a disqualifying purpose (within the meaning of section 11 of that Act) for the reason that:

(a) the entity has a purpose of engaging in or promoting, or engages in or promotes, activities that the entity genuinely believes are in connection with, or as a consequence of, the entity holding, expressing or acting upon a relevant belief or a relevant marriage belief; and

(b) if it were not for this Part, the activities may be:

  (i) unlawful or contrary to public policy; or

  (ii) determined to be unlawful or contrary to public policy.

[non -discrimination in allocation of funding / charitable status]

(5) Schedule 1, page 19 (after line 13), after Part 4, insert:

Part 4A—Amendment of the Charities Act 2013

Charities Act 2013

68A After subsection 12(3)

Insert:

(4) For the purposes of this section, disregard the fact that an entity is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984.

Note 1: For example, a body that has a purpose of advancing social or public welfare may be registered under subparagraph (1) (c) regardless of whether it is a body established to advance religion under section 37 of the Sex Discrimination Act 1984. It may be both a body that has a purpose of advancing social or public welfare and a body established for religious purposes under section 37 of the Sex Discrimination Act 1984, but for the purposes of paragraph (1) (c) regard is not had to its status under section 37 of the Sex Discrimination Act 1984.

Note 2: For example, a body that has a purpose of advancing religion may be registered under paragraph (1) (d) regardless of whether it is a body established to advance religion under section 37 of the Sex Discrimination Act 1984. It may be both a body that has a purpose of advancing religion under paragraph (1) (d) and a body established for religious purposes under section 37 of the Sex Discrimination Act 1984, but for the purposes of paragraph (1) (d) regard is not had to its status under section 37 of the Sex Discrimination Act 1984.

Part 4B—Amendment of the Income Tax Assessment Act 1997

Income Tax Assessment Act 1997

68B After subsection 30 -320

Insert:

30 -325 Bodies established for religious purposes

A fund, authority or institution does not fail to satisfy the requirements for endorsement under Division 30 of this Act for the reason that the fund, authority or institution is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984.

Part 4C—Amendment of the Fringe Benefits Tax Assessment Act 1986

Fringe Benefits Tax Assessment Act 1986

68C After subsection 123C(2)

Insert:

(3) An entity does not fail to satisfy the requirements for endorsement in subsection (2) for the reason that the entity is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984.

68D After subsection 123D(2)

Insert:

(3) An entity does not fail to satisfy the requirements for endorsement in subsection (2) for the reason that the entity is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984.

[charities]

This is the amendment that was foreshadowed earlier in discussions in previous amendments and it relates to charities. It has a number of purposes but in essence its aim is to ensure that charities which are operating today, whether or not they receive public funding, can continue to operate as they do after this law changes. They can continue to seek public funding if they're eligible for it and they can continue to retain their tax status if they're already eligible for it.

Senator Smith has helpfully written to the Australian Taxation Office and the ACNC to seek their views on whether his bill affects the rights of those charities to continue to operate as they have, and I'm pleased to hear both of those commissioners have written back to Senator Smith—letters he's now tabled—saying that there is nothing in his bill which would change the status of the charities. That is a welcome but only limited reassurance to the operation of charities in this area. Of course, as it relates to the discretion of the ATO Commissioner or the discretion of the ACNC Commissioner—at least the current ones while they are still in their roles—we can take some comfort they might not take decisions to remove charitable status. What obviously is outside the remit of a commissioner of the ACNC or the ATO is any subsequent policy changes by parliaments or by government departments at the state or federal level, and that is not protected under the Smith bill. What is also outside their control is the operation of common law and any court cases that may occur in this area. And this is not an idle concern. It's a concern that we have seen in other jurisdictions who regulate charities in a very similar way to Australia.

I'm going to quote from the explanatory memorandum that accompanied my original bill, which remains equally applicable to the amendments in this section. It relates in particular to section 88O, which is included within this amendment on sheet 8329. It states:

Section 88O introduces protections to charities to address concerns that their charitable status will be affected by the introduction of same sex marriage. Australia shares the common law of charities with the United Kingdom, the United States and New Zealand. Based on recent experience in those jurisdictions there is a concern that a failure to provide religious or faith based charities with an ability to access exemptions in charity law in respect of the question of marriage will lead to the loss of charitable status, government funding where such is conditional on that status, and tax exemptions and concessions.

On 21 August 2017 the New Zealand Charities Registration Board deregistered Family First New Zealand, a body advocating for the traditional understanding of marriage, on the basis that it 'has a purpose to promote its views about marriage and the traditional family that cannot be determined to be in the public benefit in a way previously accepted as charitable'.

It's worth noting, before I go on, that Family First New Zealand is not a political party like the former entity here in Australia but a body akin to the Australian Christian Lobby, a third-party lobby group. The explanatory memorandum continues:

Furthermore, the common law requires that charities conform to public policy. In Obergefell v Hodges, Chief Justice Roberts stated that the tax exempt status of United States religious institutions that opposed same sex marriage “would be in question,” based on the reasoning of the Court in Bob Jones University v United States. This concern has prompted the United States Internal Revenue Service to issue a clarification that, for its purposes, it will not interpret the law to remove the tax exemption of religious charities. While there are distinctions in the law of charities between the U.S. and Australia, both jurisdictions have adopted the House of Lords decision in Pemsel’s case and prima facie there is no distinction that is material to the question of whether an institution’s position on same sex marriage would be considered to be relevant to a determination of whether it continues to meet the test that charitable institutions conform with public policy.

That's important because it is possible that a charity in Australia could lose its tax status in future not through a decision of the ATO or the ACNC but through a decision of the court. The explanatory memorandum continues:

The common law requirement that a charity’s purposes not be contrary to public policy was retained on the introduction of the Charities Act 2013 by section 11(a). In light of the foregoing, there are sufficient reasons to consider that an Australian charity’s position on the question of same sex marriage may be relevant to a determination of whether it meets the requirement of a charity at law. The Bill thus amends the Charities Act in response to these concerns.

I hope that these amendments are totally superfluous and totally unnecessary—that they pass, and sit on the statute book, and are never used. But the alternative—not passing them at all—opens up the risk that charities who are doing good work today, whom we all support and want to see continue doing that good work, may lose that status in the future. I suspect that people in this debate will say that that is a misplaced fear and that the chances of that happening are remote. But I'm not willing to take even a remote chance that some charities in future will lose their charitable status, their ability to receive tax deductible donations or their ability to receive government funding conditional on their tax status. I'm not willing to put that down to hope. I think it needs to be much more reliable than that. I think we need to put in actual measures here to ensure that's not the case. This amendment, unlike the other amendments considered so far, is genuinely uncontentious. Although I support the previous amendments, I understand why other senators may not. This one, I think, is genuinely uncontentious. It just seeks to ensure that a charity that operates today can continue to operate tomorrow as it does today and that this change in the law will have no effect on it. So I would urge all senators to carefully consider supporting it. Thank you.

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

On this amendment, some people have raised questions about whether or not this is a real risk, given what the taxation commissioner and charities commissioner have issued, but the reality is under the funding side of things. Funding for bodies often comes from state governments. What we are seeing in the Northern Territory is an active review by the state government over the exemptions which are available to religious bodies. At the moment around Australia, particularly under federal law, those are exemptions in legislation which roll on from year to year. What's being proposed in the Northern Territory means that the very status of a group as a religious body and having the exemptions that they do—therefore their status, their ability to employ people aligned with their philosophy and outlook on life and their potential to continue to receive state or territory funding—is being looked at. What we see in the Northern Territory is that they are looking at whether that should be removed on a permanent basis and then renewed on an ongoing basis so people have to rejustify why they should have those exemptions. This is not something that is just in overseas law; it's not something that's going to be solved by letters from the commissioner. This is something that goes to the very heart of how nearly two-thirds of the welfare in Australia is distributed through NGOs, many of which are faith-based bodies. It goes to the heart of whether we view these bodies as charities because they do charitable work, or whether we view them as religious groups who do charitable work as a result of their religious beliefs. These amendments are appropriate in the Australian context because we're already seeing mooted changes in the Northern Territory that go to the heart of whether those bodies continue to be recognised and funded.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

It was interesting to hear Senator Paterson say that he hoped his fears regarding the status of charities were unfounded. Senator Smith's confirmation from the charities commissioner that nothing in this bill would change the status of charities is all the confirmation and assurance that you need, because, once again, this bill is about marriage. This is about legislation to change the Marriage Act so that LGBTI people can marry. Anything beyond that—if there are subsequent policy changes to common law aspects—is well beyond marriage and well beyond what the consequences of this marriage legislation would be. Again, it may be that the status of charities is something that needs to be discussed in the review of religious freedoms by Mr Ruddock. It may be that when we have the complete overhaul of our human rights act and we end up with a bill of rights—as I hope we do—this issue would be addressed, but it does not need to be addressed in this marriage legislation.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Just to clarify, if it hasn't been done by one of my colleagues, Labor's position on these amendments: we oppose the amendment on sheet 8329. I think Senator Smith has already spoken to, and tabled, a letter from Mr Jordan of the ATO in relation to these issues. Our view is that these amendments stem from a baseless concern. We don't believe there's any reason for such charities to fear they will be impacted adversely if marriage equality becomes law. There have been some overseas examples thrown around by some of those opposite. I am advised these examples do not relate to the particular charity's stance on marriage equality, but, rather, were issues associated with antidiscrimination law in the UK. I am advised there is no reasonable parallel with Australia.

I am concerned—the Labor Party is concerned—that there are those opposite who are drumming up baseless fears in this debate. I again say that Labor does not have a problem with debate on issues of religious freedom; however, we do not believe this is the right time or place, for the reasons we have previously articulated. I would also make the point your Prime Minister has set up a process to deal with this, and it is of some concern that members of his own party appear not to trust a process which their Prime Minister has set up.

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I would like to hear from those opposite an absolute confirmation that they believe that charities that continue to hold to the view that marriage should be between a man and a woman only are entitled to continue to receive government funding and support without question. We've been told that what Senator Paterson and Senator Fawcett are seeking to put into the legislation is based on a 'baseless fear'. Well, let this be the test here in the chamber. Is it a baseless fear? Will the Greens and the Australian Labor Party commit themselves in this place here and now that charities will not be impacted and they would not want to see charities impacted as they have been overseas? It's all well and good to say the law's a little bit different in the United Kingdom and elsewhere. That's fine, but where do you stand on the principle? In the contributions from both the Australian Labor Party and the Greens, they were deathly silent on the issue, which makes me think it's not a baseless fear. Indeed, it is a fear that is worth protecting the charities against.

Let's not forget two-thirds or thereabouts of the charitable endeavours in this nation are actually undertaken by faith based organisations. So why is it that you would not want to protect these charities? Senator Wong and Senator Rice in absentia—I don't blame her for that; people do need to leave the chamber from time to time, but it would have been nice to have at least one Greens senator in here—could just give a nod of the head or an indication on the principle. Is it a baseless fear or not? Once again, there is studious ignoring of the proposition. Senator Wong is so deeply absorbed by the paperwork in front of her she is unable to say, 'This is a baseless fear and I will fight for the charities to continue to get government funding if they hold to the traditional view of marriage.' And this is the hollowness—yet again, very busy in the paperwork. I'd be interested to hear from Senator Siewert if she now, on behalf of the Australian Greens—

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Senator Abetz, direct your comments through the chair, please.

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Thank you. I would be interested to hear from Senator Siewert. Can you tell me where that is against the standing orders? I know you're wearing your 'yes' badge, Mr Temporary Chair. That, I would suggest to you, shouldn't be happening, but, that aside, that interruption was, you must admit, not within the standing orders. So I say that I—

The TEMPORARY CHAIR: Sorry, Senator Abetz. Just hold it there a moment. Which interruption are you referring to?

Your interruption, Mr Chair, when I invited Senator Siewert on behalf of the Greens to make a comment—

The TEMPORARY CHAIR: Senator Abetz, I made a ruling that you should direct your comments through the chair, not directly at Senator Siewert across the chamber. That is disorderly.

Yes, but I wasn't.

The TEMPORARY CHAIR: It certainly looked like you were.

If I want to hear from a senator who is representing the Greens, who happens to rejoice in the name of Senator Siewert, there is nothing against the standing orders to say that I cannot say that I want to hear from Senator Siewert or the Green representative in the chamber. There is nothing against standing orders in mentioning a senator's name.

The TEMPORARY CHAIR: Senator Abetz, I've made my ruling. Direct your comments through the chair. It is a pretty simple instruction.

But I have! Oh, my goodness!

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Point of order. I'm not sure that you understood. Senator Abetz is saying that he invites the Greens or Senator Siewert to answer this, that and the other. That is through the chair—

The TEMPORARY CHAIR: What is your point of order, Senator Macdonald?

Your ruling is wrong, as is your wearing of a badge that indicates a partisan view of the debate before the chair. You should be excused from the chair or you should take it off.

The TEMPORARY CHAIR: That's a fair enough point, Senator Macdonald. I didn't take that into account when I sat in the chair. I will take the badge off for you. Do you have another point of order in relation to Senator Abetz?

Senator Abetz was addressing through the chair and you've wrongly instructed him to do it. He wasn't addressing Senator Siewert directly—

The TEMPORARY CHAIR: I have made my ruling—

as you can well see.

The TEMPORARY CHAIR: Senator Macdonald! I have made my ruling. Sit down!

I was sitting down.

The TEMPORARY CHAIR: I have made my ruling, Senator Macdonald. Senator Abetz is to direct his comments through the chair so we can avoid having a disorderly chamber. Senator Abetz has the call.

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

It's funny, Mr Temporary Chair, that when I invited Senator Wong in exactly the same terms as I invited Senator Siewert there was no objection from the chair. I wonder why that might have been? Oh! Because this was a request of a Greens senator. Could I just invite you, Chair, to ask the President—

The TEMPORARY CHAIR: Senator Abetz, are you making an accusation of bias against the chair?

No. What I'm making is an observation that when I did exactly the same thing in relation to Senator Wong you remained deathly silent in the chair. I then turned my attention—exactly the same wording—to Senator Siewert and all of a sudden there was an eruption from the chair that this was against standing orders. I am just observing.

The TEMPORARY CHAIR: Just a moment. Senator Abetz, when you were talking to Senator Wong you were facing me. When you were talking to Senator Siewert you were facing the other end of the chamber. It's a fairly obvious point of order.

Senator Abetz interjecting—

The TEMPORARY CHAIR: I would ask you to reflect on that, Senator Abetz. Yes, it is.

Right. I'm looking at you, Mr Temporary Chair.

The TEMPORARY CHAIR: Thank you.

I invite Senator Siewert—is that in standing orders now, because I'm looking at your eyes rather than Senator Siewert's? Really! This is—

The TEMPORARY CHAIR: What is your point of order, Senator Abetz?

It's not a point of order. I am making a contribution.

The TEMPORARY CHAIR: You just asked me a question, Senator Abetz. Do you have a point of order?

Yes. What is the difference? You said I had to look at you when I was asking—

The TEMPORARY CHAIR: I said to direct your comments through the chair. I didn't say you had to look at me. I said when you were looking at Senator Wong you were also facing my direction. There is nothing complicated about that.

What's the relevance of facing in your direction or anywhere else? Look, let's get on with the substantive issue and not this sort of interference that has unfortunately occurred.

The TEMPORARY CHAIR: Sorry, Senator Abetz, take your seat. You have just made an accusation that I'm running interference when I'm trying to actually chair the committee. On what basis are you making that accusation?

Can I rephrase: delete the word 'interference' and insert the word 'intervention'. Now, the situation is that we were accused of having a baseless fear in relation to what might occur to charities. If that is a baseless fear, I invite those who are representing the Labor Party and the Greens in this debate, who happen to rejoice in the names of Senator Wong and Senator Siewert—and I will be looking at you, Mr Chairman, when I say the name 'Senator Siewert'—to tell us whether they believe that it is good public policy to allow the continuation of public funding to go to charities that are faith based and believe in marriage as being between a man and a woman. If we get that assurance from Senator Wong and Senator Siewert, on behalf of the parties that they are representing here this evening, then that would be a good indication of their good faith in this matter. But the studious way in which this request has been ignored by both party representatives is indicative to me of a very real concern that this is just a brush-off of the issue, hoping that people will not ask that fundamental question. So I invite Senator Wong and Senator Siewert, the representatives of the ALP and the Greens, to indicate to us what their position is in relation to the ongoing funding of faith-based charitable organisations that hold to the view that marriage ought be between a man and a woman.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I want to ask—whilst looking at you, Mr Temporary Chair—a question of Senator Wong, on behalf of the Labor Party, and Senator Siewert, on behalf of the Greens. And I repeat for Hansard and for anyone listening that I am looking at you, Mr Temporary Chair, not looking at them. Therefore, I'm not addressing them personally, and neither was Senator Abetz. I want to ask them what the downside of this amendment is. As many would know, this is not a debate that I've followed particularly closely. I've had people with me all day, and it's been hard to follow the proceedings in the chamber. But I listened to Senator Paterson's contribution earlier—and I'm not looking at Senator Paterson when I say that, I might say; I'm looking at you, Mr Temporary Chair. I heard Senator Paterson say that he hoped that this would be unnecessary, that it would never have to be accessed if it were passed into legislation, but just in case. And I've heard what Senator Rice, I think it was, and Senator Wong have said on the issue. What is the downside when putting this in? It might be superfluous, but it doesn't take anyone backwards from what I think Senator Wong and Senator Rice have indicated is the situation. Again, whilst looking at you, Mr Temporary Chair, I wonder whether the Leader of the Opposition in the Senate—and I'm not looking at her—could explain something to me. As I said, I haven't really been able to take part in this debate before. But she's talking about the Labor position—that the Labor position is this, that and the other. And I heard Senator Pratt say in a previous contribution that 'we' are saying this.

Now, I thought this was a conscience debate. Some of my colleagues in the Liberal-Nationals parties have been voting on one side of the argument and some of them voting on the other, because obviously they have a conscience vote. I've indicated twice already myself that, because of the way the amendments were put, it was a bit difficult for me. But I would have voted with Senator Smith's proposal on the definition of marriage—for reasons I won't go into, because that debate's been and gone. But I thought the other parts of that first amendment were things that I was in favour of. So I was prepared to vote for some of Senator Smith's bill and some of Senator Paterson's bill, to give them the common terms. So we on this side are exercising a conscience vote. But I haven't seen anyone in the Labor Party do that, yet I know personally—and I don't want to disclose any confidences—that a lot of people in the Australian Labor Party who have deep religious convictions are very uncomfortable with many of the positions that their leaders are stating: 'We in the Labor Party' say this, that and the other.

So I'm wondering: whilst the Labor Party in particular—I don't mention the Greens, because I don't know any of the Greens particularly well, and I don't want to, I might say—

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

That's reciprocal.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Well, that's good—whoever that interjection was from, Mr Temporary Chair; I'm looking at you, not naming Senator McKim, not responding to Senator McKim for his unruly and disorderly and contrary to standing orders—

Zed Seselja (ACT, Liberal Party, Assistant Minister for Social Services and Multicultural Affairs) Share this | Link to this | Hansard source

Don't look over there, Macca!

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I won't look at him.

Senator McKim interjecting—

I know it's okay for Greens senators to interject without being interrupted, but I won't respond directly to that interjection because I know that's against standing orders!

I don't know any of the Greens particularly well. I don't think—I suspect, but it doesn't really matter—that any of them have any deep religious convictions. But I do know members of the Labor Party who do have deep religious convictions, and I know they are very uncomfortable with many aspects of this bill. Perhaps this has been dealt with before, during the day, when I haven't been able to participate. Perhaps I've missed something. But when we have Senator Wong in this debate—and I'm not looking at her; I'm looking at you, Mr Chairman—and Senator Wong says, 'We in the Labor Party say this, that and the other in relation to this,' or, as Senator Pratt said earlier, 'We will not be supporting this,' I just want to know what happened to the conscience debate. What happened to the oft-talked-about comments made, I recall, by Mr Shorten that this should be a conscience vote of the parliament? We have one side of the parliament actually allowing a conscience vote—I've certainly done that, and my colleagues have certainly done that—and yet the Labor Party seem to be speaking as one voice. So I'm wondering if Senator Wong—and I'm not looking at her—might be able to indicate to the chamber what happened to the conscience vote that was so widely talked about in the run-up to this legislation? That's one part of my question.

The other part is that if Senator Paterson is correct, and he convinced me with his contribution, that there can be no downside to this bill, I would ask Senator Wong—and I'm not looking at her, or Senator Rice or Senator McKim; I'm not looking at either of them—

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Because they're not in the chamber!

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Well, I don't want to look! That was a rude interruption, Senator Abetz, but I'll take it because I wasn't able to look down there to see who was actually in the chamber. But I have snuck a glance: perhaps Senator Siewert and Senator McKim could explain on behalf of the Greens political party what the downside is? There may not be an upside—perhaps I can accept that—but, if this element were introduced into the bill, how does that take backwards any principled belief or position any of them might have in relation to this particular single aspect?

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

I would like to reflect briefly on a number of points. The first is that the expert panel process that's been established by the government and endorsed by cabinet is the right place to review people's hesitations or concerns about future risk, if they believe there is any future risk, around legislating for same-sex marriage.

The second point is the point that I made previously, and that is that this is a bill that deals with same-sex marriage and protects people's religious views about marriage, full stop. So it is simple and necessarily narrow in its construction. That is the right way in which to legislate for same-sex marriage in Australia.

Before I make my third point, it is worth noting as well that the Senate committee report reflected favourably on the idea of further exploring positive protections for religious freedom in Australia. So you could say, I think, with great confidence that the expert panel is a product of one of those issues—or a mechanism that the Senate committee itself identified. The Senate committee report said that there was common ground between many groups on the need for positive protection for religious freedom. There was widespread support from religious people, from LGBTI communities and from others that presented to the committee. So there was a view that there was a need for Australian law to positively protect those religious freedoms and that the best way to do that was by further detailed and comprehensive inquiry.

As I briefly mentioned before, I was curious as to why the issue of charities hadn't been included in the government's original exposure draft. As a result of the Senate inquiry, it's worth noting that the issue of charities wasn't further raised by any stakeholders. So, by design, there is no mention of issues around charities in this bill—nor does there need to be. There doesn't need to be because I went and satisfied myself not with unfounded concerns and not with potential risk; I sought the professional advice of the Australian Taxation Office and from the charities commissioner, and they, to my satisfaction, have confirmed for me that the risks that are being talked about are not real.

In addition to that, I would like to share and read into Hansard the attitude of Not-for-profit Law, the peak legal organisation responsible for the legal issues and the legal concerns around Australian charities. It says—and I'm happy to table this as well:

If a charity discriminates against same sex couples in accordance with the exemptions—

the exemptions as proposed in my bill—

there is no risk to its status as a charity. A charity would not lose its "public benefit" nature just because engages in legal discrimination under the exemptions, so there is no need to amend the Charities Act 2013(Cth) to protect charities which engage in legal discrimination.

Some charities will want to continue to promote the traditional beliefs about marriage, family and gender. There is no doubt that under Australian law, and under the Bill without the proposed amendments—

the proposed amendments being those that we're talking about here—

they can continue to do so, provided the current requirements are met. The requirements are that the advocacy is relevant to their charitable purpose, is not contrary to public policy, and does not amount to promoting a particular political party or candidate.

Some people are concerned about examples from the US, UK and NZ involving loss of charity status as a result of legislation to allow same sex marriage. Our law—

meaning Australia's law—

regarding discrimination and advocacy by charities is different to the law in these jurisdictions and so examples from overseas need to be interpreted carefully.

For example, some concern has been raised over the example in NZ of Family First being deregistered as a charity because in the opinion of the Independent Charities Registration Board it "has a purpose to promote its own particular views about marriage and the traditional family that cannot be determined to be for the public benefit in a way previously accepted as charitable".

This should not cause concern for Australian charities because our law on advocacy by charities is different to the law in other jurisdictions including NZ and US. Our law has recently been clarified by the Courts, in legislation and in guidance issued by the Australian Charities and Not-for-profits Commission.

On the basis that advocating for traditional marriage and/or engaging in legal discrimination would not be contrary to public policy, charities will continue to be able to advocate on issues relevant to their charitable purpose.

The point I'm trying to make is that I was curious about this issue. I went and tested the issue with informed views—the views of people responsible for these policies—and they've come back and reassured me, in writing. I'm satisfied. It is a matter that can be shared with the expert panel to give those people who are looking for it—or people who might like to put further hurdles in the way of the passage of same-sex marriage in our country—further reassurance, but I'm confident. I'm personally satisfied. This was an issue that was most curious to me, of all the issues I saw during the campaign. I might add that ACOSS has not come to the parliament seeking clarity. Not-for-profit organisations themselves have not come to the parliament seeking clarity. With those remarks, I seek leave to table this document.

Leave granted.

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

In response to Senator Smith and some of the points he and others have raised, in fact the Senate select committee did hear from charities, and particularly from lawyers who act for charities who have concerns in this space. I have certainly heard from them since. I regret the fact that when Senator Paterson, for example, offered to reach out and discuss this bill with Senator Smith on a number of occasions, that offer was never taken up, and so we haven't had the chance to talk through some of the representations that have been made to people who have worked to put this bill and this set of amendments together. I do recognise that at least some on the other side have been prepared to have a look at the amendments and consider them, and I welcome that input. I'm disappointed that they haven't seen fit to support them.

These points I was going to raise in the next amendments, on sheet 8330, but they go to the issue that Senator Smith raises about whether or not there is uncertainty about the status of charities. The definition of 'marriage' and the ability of a group to claim the protections of the Sex Discrimination Act because they are a religious body go to the very heart of the interplay between at least three different groups. This is not overseas; this is three different groups here in Australia where we see some history.

The first is the Australian Charities and Not-For-Profits Commission. They have adopted the interpretation that a body, to be a faith based public benevolent institution, must have a main purpose of providing benevolent relief in order to be registered as a PBI and cannot have a religious purpose. That's one group. That's their definition. Then we go to the Queensland anti-discrimination tribunal. They say an organisation like St Vincent de Paul is not established for religious purposes; therefore, it doesn't get any of the protections. So someone who seeks to have the protections as a religious body carrying out charity because of their religious convictions is caught between definitions of what their purpose is.

To compound things even further, in one case the Victorian Court of Appeal decided that it would insert itself into the process to determine what a religious group actually believed. So they started essentially dissecting their interpretation and telling the group what they did or didn't believe, which then leads to whether or not the group or the organisation in this case was held to be religious in nature or not. So an assurance from the taxation commissioner does nothing to address the uncertainty that arises because of the interactions between various authorities in Australia. These amendments are very straightforward amendments which seek to provide certainty about what a religious body is so that bodies know—particularly where they're established as religious bodies that conduct charitable activities—that they can have the assurance that they won't have these divergent and different interpretations by authorities.

Whilst I welcome the letter from the taxation commissioner, I note that in the United States one of the calls from one of the judges in the Supreme Court was that they in fact needed to have that kind of clarity from their taxation commissioner. It's great that we have got that. It doesn't address the underlying problem that we have a number of authorities who can make decisions that will impact on the status of these bodies. That's why these amendments are very sensible. There is no detriment to anyone arguing the case for same-sex marriage, but it provides certainty to groups who for decades in Australia have provided probably the bulk of welfare and charitable services to our community. They deserve the certainty that these amendments provide.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I just want to make one further observation about charities in this debate. It follows on from Senator Smith's comments. I understand why he's been reassured by the letter from the ACNC and the letter from the ATO, but I want to explain why I'm not reassured by them. The reason is that in the Charities Act 2013 there is a tension between two clauses that are very close together in the act. One is section 11(a) and one is section 12, and I will quote from them. Section 11(a) of the Charities Act says a charity is permitted to engage in 'promoting or opposing a change to any matter established by law, policy or practice'. That may give you reassurance that a charity could campaign for a change in the law or campaign for something that's contrary to the law. However, the very next section of the act, section 12, imports that common-law definition I was talking about before: a charity could be disqualified for 'engaging in, or promoting, activities that are unlawful or contrary to public policy'.

So there is an unresolved tension in the Charities Act 2013. On the one hand it says you can campaign for change. On the other hand it says you can lose your charitable status because you do something which is contrary to public policy. If the law changes to make same-sex marriage legal—as it will very shortly—then activity that is contrary to the new law may cause a charity to be disqualified from its legal status. Although I appreciate Senator Smith's view that these issues should be deferred to the Ruddock committee, deferring them to the Ruddock committee won't be adequate if in the meantime a charity is inadvertently disqualified from its eligibility for tax status and other protections because of something in the Charities Act. The Charities Act says charities cannot do things that are contrary to public policy. Public policy will be that same-sex marriage is legal. Therefore, a charity that continues to say same-sex marriage should not be the law may be in defiance of the Charities Act. That's why amendments to this bill are necessary. This amendment would not be in here if it weren't necessary. I genuinely believe this is an uncontroversial amendment. All it is doing is making sure that nothing unintended happens as a result of Senator Smith's bill. I know it is not his intention, nor the intention of any senator supporting his bill, for a charity to lose its status. But that may be an unintended consequence of this bill if these amendments do not pass.

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Can I quickly correct Senator Smith. He indicated there was a government exposure draft. I think the bill to which he refers never went to cabinet, never went to the backbench committee for approval and never went to the party room for approval. Was it an exposure draft? Yes. Did it have the imprimatur of the government? Absolutely not. Let's get that clear. That is why one suspects it had a number of defects, including failing to deal with the issue of charities.

I come back to the point that if these are baseless fears of no consequence whatsoever—yet we are accused of putting, I think the wording was, 'a further hurdle' in the way of same-sex marriage—and if there had not been any opposition, this amendment could have been waved through on the voices and we would already be discussing the next tranche of amendments. So why is it that people around this chamber are digging in to ensure that this amendment, which, according to them, is worthless, will be of no value because charities are already protected? Why spend all this time digging in so desperately to ensure that this amendment does not get carried? Again, I ask the representatives of the Australian Labor Party and the Australian Greens: do you believe that with a change in the definition of 'marriage' all charities that are religiously based or, indeed, have a view in relation to what the definition of 'marriage' ought to be should continue to receive public funding, support and, for example, the right to foster our children and provide a whole range of services? Sadly, the deathly silence, the refusal, the folded arms and the looking away all indicate to me that these alleged baseless fears are things that they are actually hoping will occur. If they're baseless fears of no consequence whatsoever, I would have thought they would have waved this amendment through on the voices and we could have moved on immediately. But this digging in—not wanting this amendment—highlights the problem and the very real need for this amendment.

Can I just remind Senator Smith that paragraph 3.140 of the committee report he refers to outlines the concerns of a Mr Mark Fowler, especially on the situation in relation to the common law and, as Senators Fawcett and Paterson have so eloquently described to us, the situation in relation to the various state laws and the matters that Senator Paterson referred to. Assurances are good. So I say to the Australian Greens and the Australian Labor Party: why not give the assurance now that, should anything of the nature that has been suggested occur, you will assist in ensuring the passage of emergency legislation through the parliament to overturn any such decision that would prevent these very valuable charities from being able to do their work and from obtaining public funding?

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I thank Senator Smith for answering the questions I actually put to Senator Wong and whoever happens to be running this for the Greens political party. I appreciate Senator Smith's explanation—although, having been convinced of that, I then heard Senator Fawcett explain that it doesn't cover the wide field. So I repeat my previous call: maybe there's no upside but if there's no downside why wouldn't we support this? If it's overreach, so be it; we can get this done and then move on to other amendments.

As I recall, Senator Wong was sort of saying that those who were promoting this amendment were ignoring or going contrary to the process set up by the Prime Minister—chaired, as I understand, by former colleague Mr Ruddock—which is looking into protections for charities. Should I take it from Senator Wong's comment that, if that inquiry comes up with a series of recommendations, the Labor Party will support those? My take on it is that Senator Wong is accusing those proposing these amendments of going against the Prime Minister's process. I assume she's saying, 'Let the process happen and that'll be the way it is.' Apparently Senator Wong speaks for everyone in the Labor Party, even though they are supposed to have a conscience vote and an individual view—and I know that's not the case in this particular bill, but, anyhow, that's another question. So will the Labor Party, for whom Senator Wong apparently speaks in this conscience vote, now commit to whatever Mr Ruddock's report comes up with?

I guess the Labor Party may say, 'We can't commit to something we haven't seen.' That didn't worry Mr Shorten a few years ago when he said, 'I haven't seen what the Prime Minister said, but I support it entirely.' I know the Labor Party has a bit of form on that. But, from Senator Wong's comment, I assume she's saying, 'We trust this committee that Mr Ruddock's leading, we trust the resolutions that will come up, and as we deal with these issues in another bill, or in another way, the Labor Party will support them.' Perhaps that could be confirmed. Whilst I do take an independent view on this, I appreciate what Senator Smith said in answering the question I asked of Senator Wong and the Greens political party. But Senator Fawcett has made what I think is a very telling response to that—that it doesn't cover the breadth and extent of possibilities in this. So if Senator Smith is able to comment on that, that might help the process.

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I'll give the Australian Labor Party and the Greens a third opportunity to respond to the issue of whether charities holding firm to the existing definition of marriage will not be prejudiced in any way, shape or form by a change in the definition of marriage. Where do the Australian Labor Party and the Greens political party stand on that issue? And if, after being asked three times, they remain silent three times I think the Australian people, sadly, have the answer. The fear that they describe as baseless is, in fact, very well founded, because the Australian Labor Party and the Greens are not willing to commit themselves to the defence of charities that hold firm to the current definition of marriage.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

Senator Abetz, I refer you to Senator Smith's previous speech.

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Well, we now have it on the record that Senator Smith speaks for and on behalf of the Australian Greens. That has a very interesting connotation to it. I'll be interested in seeing the further blossoming of that relationship but—

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

You're just grumpy because you're losing.

Alex Gallacher (SA, Australian Labor Party) Share this | Link to this | Hansard source

Order! Senator Abetz, you have the call.

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

If Senator McKim wants to interject in that arrogant style, he might actually take his proper seat in the chamber. There is nothing grumpy about seeking to defend the wonderful work of hundreds of thousands of Australian volunteers who dedicate themselves to the service of Australian charities, helping the poor, the needy and the oppressed in our community. To say that the defence of that somehow makes you grumpy—I would wear that as a badge of honour for and on behalf of all those people that do dedicate themselves and their money to these very vital charities.

Sadly, we have had no answer from the Australian Labor Party or the Australian Greens in relation to what they believe the policy position ought be in relation to the rights of these charities to retain their beliefs and still be the beneficiaries of public support to enable them to engage in the vast public good in which they involve themselves.

Concetta Fierravanti-Wells (NSW, Liberal Party, Minister for International Development and the Pacific) Share this | Link to this | Hansard source

I have a question if I may. Having heard the assurances this evening, what happens if your assurances are wrong and the charity loses its funding? What compensation and appeal mechanisms are then going to be in place for a charity, noting that it could be an aged-care facility, a hospital or any other institution, that has got ongoing services and those services are cut as a consequence? Can somebody explain that to me.

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

I've previously explained that I am satisfied by all of the inquiries I have made.

Concetta Fierravanti-Wells (NSW, Liberal Party, Minister for International Development and the Pacific) Share this | Link to this | Hansard source

Senator Smith, you might be satisfied but there are legal ramifications that flow. I'm sorry, but a simple assurance from you is not sufficient for a number of these charities. I've been involved in the not-for-profit sector for many, many years and I really do believe that those charities are entitled to a firm legal position. With all due respect, Senator Smith, I take your assurance and I take it on face value but I really think they deserve a bit more than a simple assurance.

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

You might have been absent, but there were assurances given by the Australian Taxation Office commissioner himself and the acting Australian charities commissioner himself.

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

In recent times we had the assurance of the Solicitor-General that certain people's constitutional situation was absolutely guaranteed! And it was bowled out by the High Court, seven-nil. We have the opportunity in this chamber to put this matter beyond doubt by simply supporting this amendment, which seeks to underpin and support the work of those hundreds of thousands—I dare say I should correct myself: millions—of Australians who work for these charities, doing untold good right throughout the community. They deserve protection, they're entitled to it and the silence of Labor and the Greens speaks for itself.

Sure, Senator Smith has provided us with a letter from a so-called expert, but in my life I've seen so many assurances and letters from experts—lawyers, accountants et cetera—who have all proven to be wrong. We can put this beyond doubt tonight by simply voting for this amendment. No longer having to rely on a letter here or an opinion there, we can simply put it beyond any doubt by supporting this amendment.

The only criticism I've heard is that it's unnecessary, or that it's baseless. What can be the harm in actually putting forward this amendment? If, as asserted, the fears are baseless, there will be an unused clause or clauses in the bill that will never see the light of day because charities will continue to be protected as we've been promised. There's no downside.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I just want to make what I'm sure now will be my final observation on this issue, which is of course that the Australian Taxation Office and the Australian Charities and Not-For-Profits Commission are members of the executive. It is their role to apply the law as they understand it. It is not their role to decide what the law is; that is the role of the courts. There have been many times in the past where the ATO, for example, have incorrectly applied the law and the courts have subsequently corrected them and directed them to apply the law in a different way. So an assurance from a current commissioner of the ATO that this is how he intends to apply the law while he is at the ATO only speaks to his time at the ATO and does not speak to how a court will choose to interpret this law.

It's our job as parliamentarians, as Senator Abetz says, to put these matters beyond doubt. If we want to have more assurance than just the word of the current ATO commissioner, if we want to be absolutely sure that these charities will continue to enjoy after this bill passes the same legal protections that they do today, there's only one path to do that and that is by voting for these amendments.

The CHAIR: The question is that amendments (1) to (5) on sheet 8329, moved by Senator Paterson, be agreed to.

David Fawcett (SA, Liberal Party) Share this | Link to 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.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

That is not true.

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

On these amendments?

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

That is not true.

Honourable senators interjecting—

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

My intent there was not to raise a howl of protest but to note the fact we have tried in good faith to put forward amendments, but there have been many times—exemplified by the objections that have been raised, which have indicated that some people have clearly not read the amendments, understood their intent or listened to the explanations—that the votes have continued to retain the starting position. If in this chamber of all places we can't actually engage in sensible dialogue, listen to each other and have reasoned arguments then I do fear for the future of where this might go.

The last amendment addresses an issue that we touched on before, religious organisations. Much of the protection that people have talked about in this debate that goes to religious organisations rides on the fact that they are recognised as a religious body. We have seen that there have been interventions, for example, by courts, tribunals or other bodies that have made determinations about whether or not people are in fact a religious body.

If I go to the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, which was proclaimed by the General Assembly of the UN in resolution 36/55, the declaration provides that 'the right to freedom of thought, conscience, religion and belief' includes the freedom to 'establish and maintain appropriate charitable or humanitarian institutions'. The ability of those institutions to control the appointment of their staff and leaders is important if they're going to maintain their faith based character.

What we've seen in Australia is the action of courts—I mentioned in the debate on the last group of amendments the actions of the Court of Appeal in Victoria in the Cobaw case, where they inserted themselves between the body and the members of the body to decide what those members did or didn't believe. It's not the role of courts to determine what a religious body does or doesn't believe so they can determine whether or not they have the protections that being a recognised religious body would bring.

Also, despite what the UN says under international law about the right of religious bodies to create charitable bodies, we've seen the national charities commission intervene. In Queensland, the Anti-Discrimination Tribunal said that the St Vincent de Paul Society was not a religious body. I think that defies common sense. Anyone who knows Vinnies knows that they do the charitable work they do because of their faith. They reach out with compassion to help people. But that decision of a tribunal removes the status of being a religious body and therefore removes all the protections that people have been saying in this place will flow to a religious body. So the purpose of these amendments is not some abstract link to a foreign law; it's linked to very real examples here—what happened with the courts in Cobaw and what happened to St Vincent de Paul in Queensland, where they were determined to not be a religious body, which then directly impacts on their ability to employ people and ensure, for example, that the president of Vinnies is a Catholic, which maintains consistency with their faith and their approach. It directly goes to the protections that people have talked about here for those who wish to hold their religious view of marriage.

So these amendments shouldn't be controversial. They relate to real cases in Australian law. They protect the charities and provide certainty to charities around whether or not they will be regarded as religious bodies. As I say, these are drawn from the international guidance that says religious bodies can establish an organisation for charitable purposes but they are religious by nature. We're just seeking the certainty for those bodies in law. I commend these amendments to the Senate.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Senator Fawcett speaks of sensible dialogue. I do acknowledge he and I have very different views on these issues, but I think he is someone with whom we can have a sensible dialogue. I serve on the Parliamentary Joint Committee on Intelligence and Security with him, and in that context we often have different views, but we can have a sensible dialogue. I don't think that some of the senators who have risen in support of your amendments have followed your example, Senator Fawcett, and I think perhaps the recent hour of debate might demonstrate that. But I agree with you that these are matters that should be considered carefully, and we have. Labor senators have, including those who have a view different from mine and that of many in the Labor Party on the issue of marriage equality. I think they've formed a view. They have not sought a conscience vote on the amendments, and attempts to denigrate them for that, I think, are unworthy.

The reality is that those who are moving these amendments not only have not convinced the Labor Party but also have not convinced their own colleagues. These are amendments that essentially are drawn from Senator Paterson's legislation, which he didn't even introduce and which was criticised—or not supported—by the Attorney-General and the Prime Minister. So you did not gain the support of your own Prime Minister or your own Attorney-General for the legislative provisions that you are now seeking to amend this bill with—and that's fine. I mean, people make their own judgement about whether they're right or wrong. But I make that point because some of this debate has proceeded as if this is an entirely partisan issue. The reality is that it hasn't been a partisan issue. People of good conscience from different parties have considered these amendments, have considered Senator Paterson's bill and have come to a view that we don't believe these amendments should be supported or that the bill should proceed.

Very early in this debate—I can't remember when we started the committee stage now—I made the point that there is a distinction between the absolute right to hold a belief and a limited right to act in relation to that belief. There is a legislative and philosophical task that we as legislators and the Senate as a legislating chamber need to consider, which is: how do we, in the secular state, deal with, protect and respect the right of people to hold certain religious beliefs, and how does that interact with the principle of equality before the law and the law applying universally to Australians? This morning I said it is a big thing to make a decision as a parliament that the law will be applied differently to different Australians because they have different religious beliefs. There have been occasions on which we have done so, which I referenced this morning in relation to the Sex Discrimination Act, and I think other senators have referenced them in the debate. Extending those exemptions—that is, extending the differential treatment of particular Australians before the law because of their belief—is complex. It is a substantial task, and I put to you, Senator Fawcett, that it is not the task that should be undertaken in the context of this legislation.

The second amendment, for example—I think amendment (1) just relates to the name change, which has been dealt with previously—seeks to amend the Sex Discrimination Act to substantially change long-established protections against discrimination. Currently there is permission for religious bodies and educational institutions to discriminate under section 37(1)(d). Amendment (2) would greatly extend that carve-out by removing the requirement to avoid injury to the religious susceptibilities of adherents of that religion. The words 'avoid injury' would be replaced with a far more nebulous term, 'because of'—a term that provides no requirement for the avoidance of harm. The amendment would also greatly expand the range of organisations that can take an advantage of the carve-out from antidiscrimination law in section 37 of the SDA by radically widening the definition of a body established for a religious purpose. Finally, the amendment seeks to effectively ensure the roll-back of federal antidiscrimination laws proposed in these amendments by covering the field—that is, to exclude the operation of all state and territory antidiscrimination laws in the same area.

Whatever your views about the merit of it—and I appreciate that Senator Fawcett has different views—this is a set of amendments that go to substantially widening the differential application of the universal law under the Sex Discrimination Act. That is what it does. If we are to do that, that is something that should be considered very carefully, and we on this side of the chamber do not believe it is appropriate to consider this in the context of the legislation to give effect to marriage equality and to give effect to the vote of the Australian people to lessen, not increase, discrimination. Our position is that the primary purpose of these amendments, for the reasons I've outlined, is to substantially roll back long-established federal protections from discrimination contained in the Sex Discrimination Act. We do not believe this is consistent with the result of the postal survey, but, more importantly, we do not think this legislation and these amendments are the way in which we should deal with what is, frankly, a controversial and complex issue.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I rise in support of the final amendment moved by Senator Fawcett and I, and I want to reassure senators that the ambition and scope of this amendment is much narrower than I think Senator Wong believes it is. Effectively, what this amendment seeks to do is to make sure that an organisation that may currently be classed as a charity established for welfare purposes, but which is also religious in nature, is able to access all the existing protections that a religious organisation does. It doesn't seek to include any new protections. It doesn't seek to widen any existing protections. It just seeks to ensure an organisation that is substantially religious in nature can access the protections that other religious organisations already have.

To put a particularly fine point on that, I refer again to the explanatory memorandum to my bill and quote from it, because I think this is an extraordinary case. Some of you—in fact, I'm going to go out on a limb and say I suspect all of you—are familiar with the work of the charity called St Vincent de Paul Society. The EM states that the Queensland Anti-Discrimination Tribunal held that St Vincent de Paul Society is not a body established for religious purposes under the Queensland Anti-Discrimination Act 1991, with the result being that 'St Vincent de Paul could not require that a president of a local conference be a Catholic'. Does any senator seriously think that St Vincent de Paul Society is not a religious organisation? I think they have a fairly good hint in their name that they are a religious organisation: St Vincent. It is a fairly good advertisement that it is a religious organisation that was established for a religious purpose. It was established by good people, who happened to be Catholic, who want to do good works in the state of Queensland. Yet an Anti-Discrimination Tribunal decision in Queensland has found it is not a religious body. That decision means that they are not eligible for the protections that do exist for religious bodies. I think that is absolutely absurd. This is clearly a religious body, established for religious purposes, that also does good work in the welfare space.

We hope that they are able to continue doing that work and we want to make sure they are able to continue doing that work. This amendment seeks to establish that clearly religious organisations, like St Vincent de Paul Society, are classed as such and access the existing legal benefits and protections of being so.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

It is very clear from these proposed amendments that what is being attempted goes far beyond what needs to be done to protect religious freedoms or sensibilities in the Marriage Act. It is very clear. You only have to look at what is being amended. The act that's being amended is the Sex Discrimination Act. When we had our Senate inquiry earlier this year we talked about the interaction between marriage and, potentially, our antidiscrimination laws. The agreement we reached—and it was reflected in the consensus report—was that, in order to ensure that religious freedoms were protected, and how that balanced up with our antidiscrimination laws, we probably did need to look at our antidiscrimination laws. We needed to look at how well religious freedom was protected. My recollection, my understanding, was that we agreed by consensus that we weren't going to try to do that through this marriage legislation. Indeed, that's the process that has been continued. Even with the Prime Minister's appointment of Mr Ruddock to the religious panel looking at religious freedoms there is an acceptance that we don't need to do a wholesale review of the Sex Discrimination Act through the legislation. In fact, not only do we not need to do it but it is wrong to try to do it through the Marriage Act. It doesn't need to be done and it is wrong to try to do it through the Marriage Act.

I think one of the benefits of the debate we have been going through is that there is a greater awareness of the potential conflict between protecting people's ability to manifest their religion, and how that conflicts with other people's rights. I have said this a number of times this evening already. How that needs to be resolved is to be in the context of our antidiscrimination laws. The Greens are on record as saying: 'Bring on that debate in our community. Bring on that discussion.' We have a hotchpotch of antidiscrimination laws at the moment. We need to have a coherent, comprehensive set of antidiscrimination laws, of human rights laws. We need to have a bill of rights, or a charter of rights. That's where all of these potential changes should be debated through and potentially adopted. It does not need to be done through the Marriage Act.

The Greens believe that the existing religious provisions in the Sex Discrimination Act actually go too far, but we, in our contributions to this debate and in the amendments that I'm going to be moving later on, haven't attempted to unwind those provisions because we know that doing that would mean we would not end up with a marriage bill that is likely to pass through this parliament. This whole process has been about trying to put together legislation that has got the best chance of passing through this parliament.

Some of the existing provisions in the Sex Discrimination Act that we think go too far include, for example, that church-owned businesses are able to discriminate. We say, 'No, we don't think that's appropriate; a church-owned business that's operating a commercial business shouldn't be able to discriminate.' There are provisions that say religious schools are able to discriminate about who they employ as teachers and are able to discriminate based on a teacher's sexuality or gender identity. In fact, after this legislation goes through it is going to be quite legal, if a teacher at a religious school wants to get married and they are in a gender diverse relationship, for them to be sacked. That is what our existing Sex Discrimination Act will allow. We think that goes too far, but that's the existing law.

For the purposes of getting equal marriage through this parliament and of removing discrimination in marriage, we've said, 'No, we won't try to go there; we won't try to resolve those issues here.' But that's what this amendment is trying to do. It is really trying to rewrite our antidiscrimination laws by stealth to vastly expand what the meaning of a religious organisation is and, as a consequence, vastly expand the amount of discrimination that would be potentially inflicted upon lesbian, gay, bisexual, transgender or intersex Australians.

We are on the cusp of getting marriage equality through this parliament. We are on the cusp of doing that because there have been a lot of people, from all sides of this parliament, who have worked together. We had some commentary earlier that I was supporting the contribution of Senator Smith in this debate. Absolutely I'm supporting the contribution of Senator Smith in this debate, and I've been supporting the contributions of Senator Pratt and Senator Wong as well, because we recognise that, to get legislation for marriage equality and to remove discrimination in marriage, we need to be working together. That's what the bill, as it stands, aims to do. With amendments like these bolted onto it, it would just increase discrimination and absolutely would not have the support of the senators in this place, of the majority of the members of the House of Representatives, or, indeed, of the majority of Australians.

Matthew Canavan (Queensland, Liberal National Party, Minister for Resources and Northern Australia) Share this | Link to this | Hansard source

I won't take up too much of the Senate's time as many of the substantive issues have been dealt with in other contributions to my own and to other amendments.

I was listening to Senator Wong, and I got from Senator Wong that what has happened in the Labor Party on a bunch of these amendments is that they have independently come to the same position—I think they have 25 senators, 25 independent minds, at the moment in their group—on these amendments. Now, it is a possibility that has occurred, but I think we should bring some quantitative rigour to the likelihood of such a circumstance that 25 independently minded human beings might come to that position.

To do that we can use a very simple Bernoulli distribution—I have been informed about it by my good colleague Senator McKenzie—using binomial probability. What is the chance of that happening? Out there in the general population, 60 per cent of people voted yes and 40 per cent voted no. So the likely situation is that around 40 per cent of the Australian population probably supports the amendments that are being moved here—

Derryn Hinch (Victoria, Derryn Hinch's Justice Party) Share this | Link to this | Hansard source

Thirty-eight!

Matthew Canavan (Queensland, Liberal National Party, Minister for Resources and Northern Australia) Share this | Link to this | Hansard source

I'm happy to put 38 or 62 into the calculator for you, Senator Hinch, through you, Chair. We can work that out because we have 25 different independent trials, apparently, with a probability of roughly 0.62, according to Senator Hinch. You get an outcome of 0.0000234. That is the probability that 25 independently minded Labor senators have all come to the same conclusion—0.0000234! That's one possibility. It's a pretty slim possibility. That's one potential outcome, by using the well-established Bernoulli distribution. I should say that that conclusion assumes that all of the trials—in this case, all of the decisions—are independent of each other; they're not dependent on each other.

If that assumption fails, there's the other outcome: maybe the decision over there was dependent on other people's decisions. Maybe all 25 weren't independent trials. Then it would be a much more likely outcome. I think that what we can really see over there tonight is that there have not been 25 independent decisions made by the Labor caucus. They have come together as a lot, they have been dependent on each other and, unfortunately, once again, whether it's a minority view or not, the Labor Party do not allow the freedom of expression of individual senators into this place. In my view that is an unfortunate narrowing of our democratic debate.

The debate tonight, I think, would have been a lot richer for contributions from some Labor senators who I know have certain conscientious viewpoints on many of these issues. It would have been a richer debate to hear from that rich tradition within the Labor Party that would otherwise normally stand up on these issues. I actually don't believe that there's been this random event with a probability of well under point zero zero something per cent where they've all independently come to the same decision. I think what's actually happened is that the Labor Party has enforced its traditional discipline on its members and, unfortunately, deprived the Australian parliament and the Australian people of the viewpoints of individual senators in their party room on these very important and weighty issues.

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

I would like to put my position on the record just very briefly. Before I do, to continue from Senator Fawcett's opening remarks, I want to acknowledge the good faith in which all members of this Senate have come forward in the debate, particularly my coalition Senate colleagues in prosecuting their case and their view in regard to Senator Fawcett's and Senator Paterson's amendments. I think this highlights that there are areas in these very sensitive and, at times, difficult issues that are obviously very contested. It's, therefore, appropriate that parliament deal with these issues and that parliament deal with them in a way that is respectful and considered. We shouldn't actually be surprised that issues around the interpretation of international laws, the interpretation of their import in our domestic lawmaking and the interpretation of where best to balance rights are contested issues. I know that Senator Paterson, Senator Fawcett and I are governed by different sorts of principles in this issue, though I'm sure we share very, very similar approaches to those principles generally. But this is a difficult and sensitive issue. I just wanted to reflect on that.

Of course, it is important for parliament to debate these things. Sometimes debates can be tough; sometimes they can be time-consuming. But the task for us in this particular circumstance, in this particular context, is to challenge ideas as best we can—to put ideas forward and try to seek the support of each individual senator one by one.

But in regard to this particular amendment: in all frankness, I can't come to any other conclusion but the conclusion that this does actually dramatically alter and unwind discrimination laws in Australia. I say that because it actually lowers the threshold for discrimination in our country in a number of ways. It does that by amending the religious exemptions, by stating that an act or practice is consistent with religious exemption grounds where:

… that belief is not fictitious, capricious or an artifice.

It lowers the threshold for discrimination by amending the test of conformity with religious belief to being consistent with religious belief. It lowers the threshold for discrimination by amending the test of 'in order to avoid injury to religious susceptibilities' to 'because of religious susceptibilities' and allows a religious doctrine, tenet or belief to be adopted by a religious body, including in its statements, documents or acts. So, when I look at the detail of what's proposed, I come to the conclusion that this is actually lowering the threshold for discrimination and, therefore, allowing or widening discrimination.

My final contribution is a brief one. Just let me put on the record my understanding of the Queensland situation as it was shared to us earlier. My understanding of the Queensland situation—bear with me—is that a body established for religious purposes is the test in the federal law, which differs from the test in the St Vincent de Paul decision. Walsh v St Vincent de Paul Society Queensland (No. 2) of 2008 was a case about whether a body was a religious body in relation to section 109(1)(c) of the Queensland act relating to 'the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice'. This is a narrower test than the body established for religious purposes in section 37(1)(d) of the Sex Discrimination Act 1984 of the Commonwealth, which has been replicated in the bill before the Senate chamber now.

In deciding whether St Vincent de Paul was a religious body, the tribunal looked at the constitution documents and decided that it is not a religious body. I might just briefly read from the statement,

It is a Society of lay faithful, closely associated with the Catholic Church, and one of its objectives (perhaps its primary objective) is a spiritual one, involving members bearing witness to Christ by helping others on a personal basis and in doing so endeavouring to bring grace to those they help and earn grace themselves for their common salvation. That is not enough, in my opinion—

said the arbitrator—

to make the Society a religious body within the meaning of the exemption contained in sub-sections 109 (a), (b) or (c).

77.   Likewise, and despite the particulars which have been provided of the functions of the president relied upon, and the religious observances and practices said to be relevant, it does not seem to me that the fact that a conference president performs some functions (such as leading prayers) and has some duties (among a long list of duties), some with spiritual aspects and some with practical aspects, means that what happens at conference meetings, or what the president does in the discharge of his or her duties, involves "religious observance or practice".

Section 47B of the bill that's before the Senate chamber now and section 37(1)(d) of the SDA allow any body established for religious purposes to discriminate in the provision of goods or services in accordance with their doctrine. Section 37 also protects the ability of bodies established for religious purposes to hire, fire and discipline employees in accordance with the doctrines, tenets and beliefs of their religion or to avoid injury to the susceptibilities of adherents to that religion. I just put that on the public record just as an alternate view and descriptor to that Queensland case that was cited.

In conclusion, I will not be supporting this amendment.

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

Briefly: I thank Senator Smith for that. I do note that he's actually made our case in that it was the opinion of the arbitrator that he didn't believe that St Vincent de Paul was a body for religious purposes. I take you back again to the UN, which said a body for religious purposes can establish a body for charitable purposes, which is what St Vincent de Paul had done. The concept of the president of the chapter being a Catholic, to put it in this context, would be like saying we should say to the Labor Party, for example, that they should allow someone who was a Liberal Democrat to be the Leader of the Opposition here because they can actually fulfil the practical functions of running the chamber. The fact that they disagree completely in terms of the policy and the approach and on being the voice for the Labor Party here means it would never happen. Of course it would never happen. That's the same argument that the president of an organisation like St Vincent de Paul is supposed to speak to the character of the organisation, what their values are, what they stand for. And the decision of that arbitrator says, 'Well, no, as long as they can sign the paperwork and put a rubber stamp on something, they'll do.' There are not too many other areas in life where we would accept that. The point is this amendment looks to give these charitable bodies the certainty they need, because what we will see in evidence here is that the vagaries of an individual's assessment means that their status is not certain.

The CHAIR: The question is that amendments (1) to (4) on sheet 8330, moved by Senator Fawcett, be agreed to.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I, and also on behalf of Senator Canavan, move government amendment (1) on sheet 8333 revised:

(1) Page 3 (after line 5), after clause 3, insert:

4 Protection of religious freedom

Nothing in this Act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching.

Cory Bernardi (SA, Australian Conservatives) Share this | Link to this | Hansard source

On a point of order. Senator Hanson was on her feet for at least two minutes before you asked Senator Brandis and you made the concession to him. Senator Brandis then pulled the stunt as 'I'm Leader of the Government.' This is not a government bill; it is a private senator's bill. You should do exactly the right thing and ask Senator Hanson to move her amendment.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

That was exactly what I intended to do, but then I was advised by the Clerk and also by the Leader of the Opposition in the Senate that the Leader of the Government has precedence, so I gave the call to the Leader of the Government.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The first of the two amendments standing in my name and in the name of Senator Canavan is an amendment designed to fulfil the government's commitment at the time of the marriage postal survey to ensure that there be strong protections for religious freedom in any private senator's bill that the government facilitated through the parliament. It provides, very simply:

Nothing in this Act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching.

Let me reiterate what I've said many times in the course of public discussion of this issue. In my view, there is absolutely no inconsistency between marriage equality and religious freedom—none whatsoever. By passing the bill introduced by Senator Smith, as I feel sure this Senate will either tonight or tomorrow, we are making no inroads on religious freedom whatever. I have deliberately refrained from participating in the debate on or, indeed, from voting on the various amendments moved by Senator Fawcett and Senator Paterson not because in my view many of them are not valuable amendments—not all of them but many of them I agree with—but rather because, as I have always said during the course of this debate, the issue before the Australian people during the marriage law postal survey and, therefore, the issue before this parliament today is a very simple proposition: should the law be changed to allow same-sex couples to marry?

The Australian people, as we know, overwhelmingly affirmed that the answer to that question was 'yes' and this chamber, I believe, and the other place, I expect, will be obedient to their wishes and overwhelmingly affirm that the law should be changed to allow same-sex couples to marry. I was of the view, and it remains my position, that that very simple proposition should not be complicated by a broader debate on the appropriate reach of antidiscrimination law. That is a matter for another day.

The Prime Minister has already announced that there will be a review headed by the much respected former Attorney-General, the Hon. Philip Ruddock, to examine the extent and adequacy of religious protections in Australian law. It may be that the Ruddock review identifies that there are inadequacies in religious protection in Australian law, and, if it does, then next year the parliament will deal with them. But, with all due respect to my friends and colleagues Senator Fawcett and Senator Paterson and to those of my colleagues from the government benches who supported their amendments, I think next year, following the Ruddock review, is the time to deal with those issues and today—in the Senate this week and in the House of Representatives next week—is the time to deal with the very straightforward question: should the law be changed to allow same-sex couples to marry?

That having been said, I also believe that, during the debate over the same-sex marriage survey, there were a number of very misleading statements made from the 'no' case that the effect of enacting marriage equality would be to impinge upon and to entrench upon religious freedom. In my view, those statements were wrong. As I said at the start of this contribution, in my view there is no inconsistency, whatsoever, between marriage equality and religious freedom. That is so for a very simple reason: what we are dealing with today, what Senator Smith's bill is dealing with, is the secular definition of marriage—the definition of marriage contained in the Marriage Act.

It has always been the case that we have recognised that there is a secular definition of marriage but also recognised that different churches and different religious faiths may have their own definition of marriage, which is narrower, and that those two propositions stand completely consistent together. Let me give you an example in the case of the church of which I am a member, the Catholic Church. The Catholic Church has always taught that divorce is not recognised by Catholic doctrine, so the Catholic Church teaches that in its schools and the Catholic Church will not conduct the ceremony of marriage according to its rites of liturgy for a couple of whom one or other is divorced. That is inconsistent with the secular definition of marriage in the Marriage Act, because it is narrower, but nobody has ever suggested that there is any inhibition on the Catholic Church teaching, according to its doctrines and tenets and teaching, its own understanding of the meaning of marriage according to canon law. Nobody has suggested that. Equally, when Senator Smith's bill is made law, nobody could possibly suggest that there would be any inhibition on the Catholic Church, any other Christian church or any other religious faith's teaching that, according to its doctrines, tenets and theological convictions, a marriage is between a man and a woman. That is entirely a matter for the church. That reflects the church's definition and the church's understanding of marriage. That is not what we are here concerned with. What we are here concerned with is the secular definition of marriage. So there isn't, as I say, any inconsistency, whatsoever.

You may think that the amendment that I move is strictly unnecessary. But I am concerned that there are many people—I know people who have engaged with me in this discussion—who have been misled by some of the wilder and more extravagant claims made by advocates of the 'no' point of view that by enacting Senator Smith's bill, in some way, there will be an imposition on religious freedom. So I move this amendment to put it absolutely beyond doubt that the effect of this bill will be to make no imposition, no limitation, no inhibition upon religious freedom.

The words I have adopted to describe the right which is protected are words taken straight from article 18.1 of the International Covenant on Civil and Political Rights, which protects the right of a person to manifest his or her religion or belief in worship, observance, practice and teaching. The amendment does not transport into Australian law or enact article 18.1. I am, as colleagues will know, not a supporter of a bill of rights, and this is not the germ of a bill of rights. What it does is adopt some well-understood language of description from an international human rights instrument to describe those aspects of religious freedom that ought to be protected. And, by the qualifying words 'in a lawful manner', the amendment puts it beyond doubt that it doesn't derogate from any other Australian law, because that which is protected is the exercise of a right of worship, observance, practice and teaching only if it is consistent with Australian law, federal and state—only if it takes place in a lawful manner.

So to those who say that we are opening the door to, for instance, Sharia law: if there are any aspects of Sharia law that are not lawful according to Australian law then this provision would ensure that they remain unlawful according to Australian law. Nor does this amendment in any way derogate from federal or state antidiscrimination laws. I want to emphasise that point, because I've heard dishonest claims made during the course of the day that in some way this amendment might have that effect. But because of the qualifying words 'in a lawful manner', it cannot. The words are words of reassurance. To those who may have been caused to have misgivings during the course of the debate, that in some way Senator Smith's bill derogates from religious freedom or somehow limits it: it does not. And if anyone has any doubt about that, the inclusion in the bill of these words will serve to remove that doubt entirely.

Now, I doubt that there would be anybody in this chamber quite so dishonest as to suggest that the inclusion of this amendment was meant to in some way limit or derogate from the effect of Senator Smith's bill. Plainly it does not—unless you accept that religious freedom cannot sit side by side with acceptance of marriage equality. They can sit side by side; they do sit side by side. They are entirely consistent with one another, and this amendment puts that proposition completely beyond doubt.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I'm going to speak very briefly in support of the amendments that Senator Brandis and Senator Canavan are bringing. I think Senator Brandis has put it very well, and there's not much that needs to be added to what he said. This is in a sense just a symbolic act to reassure anyone who may be concerned that there will be any adverse impacts on religious liberty from this bill that they need not worry, that there is no adverse impact. As Senator Brandis put it, this amendment is to put beyond doubt that there are no negative impacts. I hope it will pass. I urge to senators to support it. I have to say, given the way Senator Brandis has described it and how modest it is, it would be a troubling thing if this did not pass, given how uncontroversial it is and how modest it is in its scope. It might give rise to some concerns if something even this reasonable were voted down, so I certainly hope it is not.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Senator Brandis has moved amendment (1) on sheet 8333, which, as we on this side of the chamber understand it, appears to reflect one aspect of the ICCPR into Australian law. We think it is an unusual and novel proposal. We believe it has uncertain legal effect, some have asserted to us potentially far-reaching. On the one hand, Senator Brandis and others have suggested this is of minor or cosmetic or inconsequential effect. One wonders then on what basis there is a reason to put it into legislation.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

Or oppose it!

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I intend to oppose it. We intend to oppose it. I'm just explaining why, Senator Paterson. As has been pointed out by a number of legal advisers, and also referenced in some of the documentation provided by the Human Rights Law Centre, there are some questions about the extent to which there may be unintended adverse consequences in relation to this amendment. I would also make the point that we find it somewhat odd that one would cherrypick the ICCPR in this way. For example, article 18.1 is singled out but not article 18.3, which states:

Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Obviously, 18.3 constrains to some extent the rights articulated in 18.1 and reflected in the amendment that Senator Brandis has spoken to. I also note that article 26 of the ICCPR commences as follows:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.

I pick up those two aspects of the covenant because it seems to us on this side that there's obviously, certainly in this chamber and to some extent in the community, an interest in discussing the place of religious belief and the way in which the law might safeguard better the right to have such a belief—the right to hold beliefs—and a discussion about the extent to which that belief might affect the application of Australian law. However, as I have said on a number of occasions today, that is a reasonably complex and at times controversial discussion, and it is certainly a discussion that goes quite directly to the way in which religion is dealt with in a secular state and to the extent to which absolute belief, and limited protection under the law for that, need to be balanced.

The Labor Party's view reflects to some extent Senator Brandis's introduction to this amendment, which is that this is a matter that rightly should go through the process that Prime Minister Turnbull has established. We believe that an amendment of this sort would better be considered in the context of that process. For that reason we will be opposing this.

Matthew Canavan (Queensland, Liberal National Party, Minister for Resources and Northern Australia) Share this | Link to this | Hansard source

It's a great privilege and honour to move these amendments together with Senator Brandis. I do that recognising that Senator Brandis and I have differing opinions on the substantive changes we're debating today. Once again, as I have in other contributions to this debate, I specifically single out my great respect for Senator Brandis's views on this issue. While we have a difference of opinion, I think he always puts his views in a respectful and eloquent way. I am very happy and honoured to join with him to move this amendment because it is a way, I think, that we can make the substantive change to the Marriage Act following the survey results in a way that recognises as many views as possible in our country, rather than just the view of the majority alone.

I think we should seek in this place, where possible, to make changes which unite the country, not divide it, because I fundamentally believe in the former Prime Minister Howard's statement that what unites us as Australians is much greater than what divides us. For most of tonight we have focused on issues that do perhaps divide us, and normally in this place that's where the focus and concentration rightfully come into view. But I think that, when you look at the contributions to this debate, we are actually all of one mind in this chamber that the Marriage Act should change as a result of the survey. So that's something that unites us. I would think and hope that as a country we are all united.

There should be nothing that limits or derogates from the rights of people to worship, practise, observe or teach their religious views, as long as it's done in a lawful manner. I agree with Senator Brandis that there is the potential for us to change the Marriage Act in a way which does not contravene those fundamental human rights. Notwithstanding my own view that I would prefer not to change the definition in the Marriage Act, I accept that there is a way that can be done that does not limit fundamental human rights. However, where I may depart slightly from Senator Brandis is that I have concerns that there are other ways we can change the Marriage Act which do in fact limit people's fundamental human rights, including their right to freely practise their religious views. So what this particular change does is simply ensure that we make the changes in a way that expands the rights that Australians hold and can live under, rather than trade one right for another, which I'm concerned may arise if we do not even support something as simple and clear as this provision.

I note that Senator Wong in this debate made a fine contribution earlier, mentioning that there's a distinction between someone's right to worship or hold a religious view and their right to act on that view. There is certainly a distinction there between someone holding a view and perhaps even expressing a view and acting on it in real life. I accept that there are legitimate limits on how someone should act within their religious views where they may restrict other human rights or public policy goals. That's why in this provision the protection, as Senator Brandis pointed out, is triggered or arises only where people are acting in a lawful manner. That condition is not limited in any way. That condition includes laws under state jurisdictions as well. That condition captures changes to law which might otherwise occur in the future, not just the current law. All it says is that, as long as someone is not breaking the law, they're free to practise, free to worship and free to observe and teach their own religious views.

I think that is something that is fundamental in our Western civilisation and fundamental to the rights and privileges that we all enjoy in a modern democracy. Indeed, I would argue that the consequence and legacy of our end point here in a modern democracy actually had its origins in modern times, often, in disputes and battles by people to establish religious freedoms centuries ago. Many other freedoms also originated from those battles and freedoms, some of which I'm sure people would argue are more important or have more consequence in people's daily lives today. But I think the actual seed of the broader freedoms we have today often arose out of these issues to ensure people have this fundamental right and freedom, which largely did not exist a few hundred years ago across the world.

I note that Senator Wong mentioned that this doesn't capture 18.3 of the ICCPR, which goes to limiting someone's religious beliefs, but again I return to the fact that in fact it does reflect that provision. This is not, as Senator Brandis says, an attempt to enshrine article 18 of the ICCPR in legislation, but it does capture that concept that Senator Wong mentioned in 18.3 because it says that only acts which done are in a lawful manner are protected by this provision, and that gives effect to 18.3 of the ICCPR.

Senator Wong mentioned that she has some advice or concerns that there may be adverse consequences from this particular provision, although they weren't fleshed out in any detailed way in her contribution. I can only imagine, though, that the adverse consequences she may be highlighting or trying to point to would be that someone is not limited to freely expressing their religious views in a lawful manner. I can't see how there would be any other consequences from this provision. It's one sentence. The only thing the provision does is say that, as long as someone is acting consistent with all laws, including the laws in this particular amendment or the revised marriage law, they are otherwise free to express, practise, observer, worship and teach their religion. What other adverse consequences could there be but that Senator Wong or others that are providing this advice are considering that there should in fact be further restrictions on people's ability or rights to practice, observe and teach their religious views that go beyond existing laws which are already covered in this provision? I don't know what those additional concerns or consequences might be, but that does give rise to some of the legitimate and genuine concerns we have on this side that there are potentially some that may seek to restrict people's religious rights and freedoms in a way that's not explicitly outlined in this legislation at the moment. All this does is provide a shield and protection against that particular outcome happening.

I note that also in Senator Wong's contribution, as well as other broader ones in this debate, there has been the view that these issues are broader and raise more comprehensive issues and concerns and therefore need to be considered in a different process, on a different track, including the Ruddock review, established by the government last week. I find it extremely unlikely that the result of the Ruddock review, or any other consideration of these matters, would see us come back and revise the Marriage Act itself. I don't think that will be the focus of the Ruddock inquiry or other inquiries. There are broader issues that go to freedoms—and broader than just freedom of religion—but I don't think we'll be coming back and revising the Marriage Act itself; I think this is our only opportunity to get this right in the immediate time frame. I, therefore, believe that something as uncontroversial and as affirming as this is about our fundamental freedoms and rights in this country should be put in this bill to make sure that we change the Marriage Act in a way which is rights-enhancing and which increases the number of protections that people have, rather than risk making one change that some see as enhancing rights while limiting and taking away other rights that we have lived under and enjoyed in Australia for centuries.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

This amendment by Senator Brandis is purportedly, as I understand it, to underline that achieving marriage equality through the legislation and religious freedoms are compatible. I support the intent of that because I do believe that this marriage equality legislation is compatible with religious protections and there are adequate religious protections in this bill. I've had many people from different religious faiths saying that this bill absolutely adequately protects their religious freedoms. I would have given this amendment more consideration if it hadn't cherrypicked the International Covenant on Civil and Political Rights, because what it is attempting to do is to make an absolute right of something that in the ICCPR is only a limited right.

In the ICCPR, yes, everyone shall have the right to freedom of thought, conscience and religion—that is, freedom from discrimination because of your religion. But then, as others have pointed out, item 3 of article 18 says that in manifesting your religion there are limitations. That is not included in this amendment. The fact that the amendment says 'in a lawful manner' does not address that absence, because the key conflicts in our antidiscrimination law and the area where you get the most complex issues that need to be addressed occur where two things are lawful but conflict. When two things are lawful but one of them discriminates against the other is when you need to have a complex, comprehensive, cohesive set of antidiscrimination laws to assess them. You cannot achieve that balance just by inserting one statement in the Marriage Act. It's not necessary and particularly inappropriate to put it there, given that it's including only one part of the ICCPR and not both.

This debate has underlined again and again and again that, yes, we are changing marriage legislation to remove discriminations in marriage and doing it in a way that protects people's religious freedoms in relation to marriage, but it has highlighted that we in Australia need to do more work on how religious freedoms relate to people's other human rights. As I've said before, the Greens believe very strongly that we should have a charter of rights to address how all of these rights balance up against each other and how they should be assessed against each other. It is within that context that we should be considering these sorts of initiatives—these sorts of recommendations—and how they are reflected in our overall human rights law, not trying to cherrypick one bit of international human rights law and inserting it out of context in this marriage legislation.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I'm usually really pleased to talk about rights. After all, the bill that's before the committee at the moment is at its heart about the right to marry for some people who are currently denied that right under Australian law. But now is not the time to be debating the right of religion or the right to freedom of religion. The Australian people were not asked in the survey to vote on whether we should enshrine religious freedoms in law. They were simply asked to vote on—and voted overwhelmingly in favour of—the proposition that we should enact marriage equality in Australia. And that's what we should be doing here: enacting marriage equality in Australia.

The Australian Greens are very happy to entertain a conversation about the right to religion and to religious beliefs and religious practices, and we're very happy to entertain a discussion about enshrining those rights into statute. But those rights, like most rights, need to be balanced with other rights, and that's why we need to discuss how to balance those rights and a range of other rights in a discussion about a proper charter of rights, because Australia remains the only Western liberal democracy that doesn't have a charter of rights either in our Constitution or on our statute books. That conversation needs to be had carefully and in a considered way, because balancing often competing rights is very difficult and can lead to significant unintended consequences if it's done hastily.

These amendments are a hasty attempt. We know that these amendments arose because of a deal that was done in the LNP to get Senator Paterson to withdraw the marriage equality legislation that he had drafted. The cost of that was this amendment and the others that are being proposed by Senator Brandis today. So we need a broad, careful and considered approach to how we balance rights—

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Senator Paterson, a point of order?

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

A point of order: I have been misrepresented by Senator McKim. The reason my bill was not introduced had nothing to do with the amendments that Senator Brandis is moving, although I support them.

The TEMPORARY CHAIR: Senator Paterson, that's a debating point.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I turn now to the amendment before us. As both Senator Wong and Senator Rice have pointed out, it cherrypicks the ICCPR, and in fact cherrypicks article 18 of the covenant, because it seeks to enshrine in this legislation article 18.1—that's contained within the amendment we're currently debating—but does so while leaving out article 18.3. That's been read into the Hansard already. The omission of 18.3 of the ICCPR turns a limited right to religion under international law into an absolute right in Australian law, and that is an incredibly dangerous and ill-considered thing for us to do.

It's important that we understand that article 18.3 allows for antidiscrimination laws, both here and in other countries around the world, to override claims to discriminate on the basis of belief. Without article 18.3, people will argue that their right to discriminate on the basis of belief is an absolute right. We haven't got 18.3 before us here and it's not proposed that it be inserted into the legislation. If article 18 is to be implemented, it should be implemented in its entirety. Better still, we shouldn't be seeking to enshrine any freedom of religion until we've had a comprehensive, robust and carefully considered discussion about a charter of rights in this country. Enacting only the first sentence of article 18.1 leaves out the limitations on freedom of religion that are found in the remainder of 18.1 and in article 18.3 and, as I said, transforms what is a limited right into an absolute right.

In conclusion, I want to note that there is a trend around the world in Western democracies—and this is the case in Europe as well as the United States—where conservative Christian pro bono law groups are pursuing aggressive litigation strategies to justify discrimination against LGBTIQ people. Including article 18.1 of the ICCPR in Australian law will make freedom of religion justiciable and fuel legal conflict in our country. Last year we saw the Australian Christian Lobby establish the pro bono Human Rights Law Alliance. I'll leave aside my observations about the hypocrisy of that name. But they established that alliance precisely for the purpose of litigating against LGBTIQ people, and the alliance is already running a number of cases on behalf of conservative Christians, including challenges to antidiscrimination law on the basis of the religious freedom provision in the Tasmanian Constitution, the constitution of my home state. Senator Canavan described this amendment as 'a shield'. It's not a shield; it's a sword. It's a sword that will be wielded by the conservative right against LGBTIQ people in this country, and that's why it should be stridently opposed.

Matthew Canavan (Queensland, Liberal National Party, Minister for Resources and Northern Australia) Share this | Link to this | Hansard source

After that contribution, I welcome Senator Brandis to the conservative Right, apparently! I think Senator McKim has shown the emptiness of his contribution here. He's actually confirmed for us the very points we are making by a snide remark that, because the Christian lobby has established a legal fund, that, somehow, in and of itself is a breach of human rights. If I'd been advising you, Senator McKim, I would have hidden my lamp behind a bushel a little bit during this debate, because I think you have shown us a bit too much there. The exact reason that this is being moved and debated is that some in this parliament, particularly the Australian Greens, have in the last year or so moved motions referring to those who support traditional marriage as bigots and calling those who potentially have those views from a religious viewpoint bigots. So the prospect that people won't be free to practise their own religious viewpoints, coming from the likes of the Australian Greens, is already confirmed by their own behaviour leading up to and during this debate this evening.

There were some more substantive points, particularly those made by Senator Rice, that I'd like to tackle briefly. Senator Rice contradicted herself, because she said at one point that this amendment does not provide any limitation to the freedom of religion and then went on to argue that in fact the limitation that exists in this provision, in a lawful manner, is not sufficient or to a great enough extent. It's either one or the other, Senator Rice. There is a limitation here, clearly. There's a limitation that if the behaviour is in a lawful manner it can be freely expressed as a part of your religious viewpoint and if it's not then it cannot. The second point you made, of more substance, is that there can be two acts that are both lawful, so to speak, that potentially can be in conflict because they may seek to abrogate two independent rights.

I want to make two points about that. The first point is: that is a matter for the courts, for the law, to interpret. While they might, ipso facto, both be lawful acts, obviously when that decision goes to a court of law and they're found to be in conflict then the court will decide which one is in fact consistent with the law and which one is not. Once again, this very simple, clear limitation around acting within the law will be found to provide the adequate limitation to the issue that Senator Rice raised. The other point is that it is very important to note that, while this is not an intention to implement the ICCPR, one thing that I think hasn't come up enough in this debate is that the United Nations Commission on Human Rights has been asked to rule on this issue about whether or not the right to refuse or provide marriage services for homosexual couples is, in fact, a breach of the ICCPR. In the Joslin case, which is the precedent in this place, they made it very clear that, in light of the scope of the right to marry under article 23.2, which is the right of a man and a woman of marriageable age to marry:

… the Committee cannot find that by mere refusal to provide for marriage between homosexual couples, the State party has violated the rights of the authors under articles 16, 17, 23—

and various paragraphs that I won't read out. That is already the finding. So this idea that the religious freedoms in article 18.1 are somehow in conflict with the other changes we're making here tonight is not a provision or a fact in international law as it stands at this juncture.

So that conflict will not arise. This is a very clear, very simple confirmation that we do live in a country where people can freely practise their religion as long as it's done in a lawful manner. It's something that we should all be able to unite behind and then support the broader changes to the Marriage Act in a way that unifies this country, not divides it.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Let me just reply for a moment to a number of the contributions that have been made. Might I start by picking up with an observation—a very wise observation, if I may say so—that came from Senator Canavan during his first contribution. What Senator Canavan reminded us of was that our modern notions of freedom and liberty and, in particular, freedom of speech—if I may expand a little, Senator Canavan, on what you had to say on freedom of the press—and all of the other values around freedom of expression in fact arise from the defence of religious liberty.

If you read deeply the history of the 17th century, you will remember—and I know you, Mr Temporary Chairman Leyonhjelm, as a libertarian are very well versed in these matters—that John Locke's essay on toleration, one of the great defences of human freedom, was a defence of religious tolerance. You will remember that in the 17th century, and before that the 16th century, those who fled from the religious wars in Europe to found a new society in the new world on the east coast of North America fled in defence of religious liberty. You would know that one of the greatest men of the Enlightenment—arguably the greatest man of the Enlightenment—Thomas Jefferson, chose to have inscribed on his tombstone the words, 'Here was buried Thomas Jefferson, author of the Declaration of American Independence and of the Statute of Virginia for religious freedom', because Thomas Jefferson regarded being the author of the Virginia statute for religious freedom as important as having been the author of the declaration of independence, so highly did that great man value religious liberty. So when we're talking about religious liberty, we're not having a narrow discussion. We are talking about the defence of values that are central to our Enlightenment notions of what a liberal democracy is.

Now, let me correct a couple of errors that came from Senator Wong and others who have spoken in this debate. The effect of this amendment is not to transport into Senator Smith's bill any right from the International Covenant on Civil and Political Rights—not at all. That is not what it says and that is not its effect. Its effect is a limiting effect only to make clear that nothing in Senator Smith's bill, were it to be enacted, 'limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching'. That is not a right-conferring provision. It is a limiting provision.

Secondly, it was observed by Senator Rice and others that, somehow, article 18.1 of the ICCPR is being cherrypicked. It is only in the very narrow sense that words of description—that is, 'to manifest his or her religion or belief in worship, observance, practice and teaching'—have been adopted because they are a convenient and well-recognised description of the breadth of that conduct of those behaviours, which are regarded as constituting the expression or manifestation of a religious belief; that's all.

Article 18.1 is, of course, not the only provision of article 18 of the ICCPR which deals with religious freedom. The reason that it was adopted in this amendment, far from cherrypicking, was to do the very opposite: to take the most generic possible description of religious freedom—that description which is the least controversial and easiest to accept and agree with—so as to invite the Senate to subscribe at the lowest threshold of adherence to that value. I ask the question rhetorically: if you don't believe in the right of a person, in a lawful manner, to manifest their religion or belief in worship, observance, practice and teaching, what sort of religious freedom do you believe in, if any at all?

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

None!

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

That's right, Senator Abetz: if you cannot subscribe to that proposition that people should be able, in a lawful manner, to manifest their religion or belief in worship, observance, practice and teaching then what does religious freedom mean at all? It means nothing.

We've had a very important debate in the Senate today and a lot of us, including me, have expressed very powerful sentiments about the importance of treating gay people with equality. But the importance of respecting the equal right of all to manifest their religious beliefs is just as important. This debate we are having now is just as important as the debate that we had earlier in the day, and yesterday, on the substance of Senator Smith's bill. And by your vote on this amendment you declare your hand. As you vote on this amendment, so shall you be known. If you decide that you will vote against the proposition that a person should not, in a lawful manner, be able to manifest their religion or belief in worship, observance, practice or teaching, so be it. If you want to declare that to be your position, if you want to set your face against the most modest and generic and least challenging description of the essential elements of religious liberty, then live with it.

There are some on the other side of the chamber who subscribe to no religious belief at all. There are some who do subscribe to a religious belief. If you decide to vote against this amendment, know and understand that you will, by your vote, be declaring yourself to be somebody who does not accept the right of a person, in a lawful manner, to manifest their religion or belief in worship, observance, practice and teaching. That will be your position. It's not about the ICCPR or the transportation into Australian law of any of its provisions; it is about whether you accept even the lowest threshold description of religious liberty or whether you do not.

The CHAIR: The question is that amendment (1) on sheet 8333 revised, as moved by Senator Brandis and Senator Canavan, be agreed to.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I move government amendment (2) on sheet 8333 revised standing in my name and the name of Senator Canavan:

(2) Schedule 1, item 20, page 10 (line 11) to page 11 (line 10), omit the item, substitute:

20 Section 47

Repeal the section, substitute:

47 Ministers of religion and marriage celebrants may refuse to solemnise marriages

Ministers of religion

(1) A minister of religionmay refuse to solemnise a marriage despite anything in this Part.

(2) In particular, nothing in this Part prevents a minister of religion from:

(a) making it a condition of solemnising a marriage that:

(i) notice of the intended marriage is given to the minister earlier than this Act requires; or

(ii) additional requirements to those provided by this Act are complied with; and

(b) refusing to solemnise the marriage if the condition is not observed.

  (3) A minister of religion may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:

  (a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister's religious body or religious organisation;

  (b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;

  (c) the minister's religious beliefs do not allow the minister to solemnise the marriage.

Marriage celebrants

  (4) A marriage celebrant may refuse to solemnise a marriage, despite anything in this Part, if the marriage celebrant's religious or conscientious beliefs do not allow the marriage celebrant to solemnise the marriage.

Grounds for refusal not limited by this section

  (5) This section does not limit the grounds on which a minister of religion or a marriage celebrant may refuse to solemnise a marriage.

The effect of this amendment is to amend section 47 of the Marriage Act to extend the right of conscientious exemption, in relation to marriage ceremonies, to civil celebrants. The Marriage Act, by section 47, has always provided that ministers of religion have an absolute right not to perform a ceremony of marriage. They don't have to show any grounds; they merely are entitled to decline. The reason that provision exists is so that, for example, a minister of religion could not be compelled to conduct a ceremony of marriage in circumstances which would violate the tenets or teachings of their church. I gave the example in the earlier debate about the Catholic Church, which will not remarry divorced people. No Catholic priest, for example, could be compelled to conduct a ceremony of marriage involving a divorced person.

That exemption has never extended to civil celebrants, and, I must say, I've never been able to understand why. This would be a good measure, irrespective of whether it arose in the context of a debate about extending the definition of marriage to include same-sex couples or not. The proposition that I advance is very simply this: if we accept that there should be a right of conscientious exemption to conducting a marriage ceremony, then that should be the end of the matter, and the reason, the ground of the conscientious exemption, should not matter. Whether it is theologically based or doctrinally based in the teachings of a church should not matter. To suggest otherwise is to suggest that the only ground on which conscience is exercisable is a religious ground, but that is a preposterous proposition. There are many people—about a quarter of people or more, according to the latest census in this country—who profess no religious belief at all. Are we to say that, because you don't profess a religious belief, you therefore are not a person who should ever be able to claim to have a conscientious objection to something, that religious belief is the only ground of conscience? That's ridiculous.

There are other areas of the law in which a ground of conscientious objection is well recognised. One of the most important is in the Defence Act, which recognises a ground of conscientious objection in wartime, not on the basis of a person's religious beliefs but on the basis of their conscientious beliefs, so that if, for example, a person is conscientiously a committed pacifist, not on religious grounds but because conscientiously that is their world view, then the conscientious ground of objection may extend to them.

So the proposition I put to the Senate is this: if we accept, as the law does, that it is right and just to protect people from being forced to act against their conscience, and if we accept, as the Marriage Act does, that ministers of religion should be protected from conducting a ceremony of marriage against their conscience because it violates their religious beliefs, then on what possible basis can we say in relation to a non-religious person that their conscience should be able to be violated? That is why I advanced this amendment. It's not really an amendment directed to same-sex marriage at all; it's an amendment about the circumstances in which those who celebrate marriage services, whether religious services or secular services, ought to have the integrity of their conscience respected.

Louise Pratt (WA, Australian Labor Party, Shadow Parliamentary Secretary for the Environment, Climate Change and Water) Share this | Link to this | Hansard source

Labor is opposing this amendment. These issues were given careful consideration by the select committee and are at the core of the construction of the bill before us. The amendment that Senator Brandis has put forward along with Senator Canavan undermines the purpose of the new category of religious marriage celebrants who have been specifically given the rights to refuse to solemnise marriages on the same basis as ministers of religion where it offends their religious belief, be that of same-sex marriage or any other doctrinal grounds. To proceed with this amendment would undermine the important principle that civil celebrants, as secular representatives of the state, should be bound by antidiscrimination legislation. We very much accept the need to protect religious freedoms, but we will not and should not be extending exemptions from antidiscrimination legislation to secular officers appointed by the state.

Matthew Canavan (Queensland, Liberal National Party, Minister for Resources and Northern Australia) Share this | Link to this | Hansard source

I once again am honoured to move these amendments with Senator Brandis. I point out up front that the construction here of a conscientious objection for celebrants mirrors that which Senator Brandis outlined or made public in the exposure draft for a Marriage Act change earlier in the year. That was also the subject of a Senate committee report. The changes that are outlined in the Senator Smith bill, which are different to in regard to the protections provided to marriage celebrants, did not go through a similar examination process and departed from that exposure draft from earlier this year.

I first want to make a couple of points in response to Senator Pratt's contribution. I fear that the Labor Party are now going back from where they were 25 years ago on extending conscientious objections to all Australians not just on religious grounds. It is a misinterpretation, wilful or otherwise, to suggest that it's only those of religious views who may have a conscientious view about the definition of marriage. There are, of course, some who have that view from a religious viewpoint. As Senator Brandis outlined, their views are protected, or somewhat protected, in the Smith bill creating a category of religious marriage celebrants.

There are other Australians who may not have a religious point of view, but who may have a conscientious point of view that marriage should be between a man and a woman. I repeat this from earlier in the debate: even those of us who do have a religious view, we often, and I put myself in this category, have arguments about our views. My view is that the definition of marriage shouldn't change. I don't base that on religious views alone, and I certainly don't prosecute it on religious grounds. I prosecute it in public policy debates and with secular, widespread reasons about why the existing institution has been, and is, a good foundation for family units and for our civil society.

Notwithstanding that, as I said earlier I accept that definition will now change, but if we do recognise that those of a religious view and with a traditional view of marriage deserve protection as celebrants, why wouldn't we extend that to those of a non-religious view as well? We have this very strange situation where in fact it's only those who subscribe to a religious viewpoint who are offered protection. Under the Smith bill construction, those who are not religious do not get exactly the same protections as those who are religious. It's a very strange, almost non-modern form of discrimination.

As I was outlining earlier, this goes against what the Labor Party did 25 years ago with the conscientious objection to military service legislation, and Senator Brandis has outlined that. Until 1992, you could only have a conscientious objection on religious grounds. If you were a Quaker or your religious view was pacifistic, you could exempt yourself from military service. In 1992, the Australian Labor Party, rightfully in my view, extended that right to those non-religious pacifists with a conscientious objection to military service. That was the right construction. But what the Senator Smith bill does—supported by the Labor Party and the Greens—is narrow those conscientious objection grounds back to only religious views, not to non-religious views. That is why we should accept these amendments and ensure that if we are to have some form of conscientious objection, which this bill establishes, it is as wide-reaching and fair as possible for all Australians, including those who do not have a religious view themselves.

I also want to point out and make clear to the Senate and to those who may be listening that there has been a misconception—Emma Alberici on Lateline last night had this misconception—that somehow all celebrants are protected under the Smith bill. They are not. It is only a grandfathering protection. In section 39DD of the Smith bill, it is only those civil celebrants who are currently registered who have the possibility of protecting themselves and not being forced to solemnise a marriage against their will. They have only 90 days from the passing of this bill to register themselves under this transitional provision. If they miss that 90-day threshold, they do not have protection. If someone decides to become a celebrant after this bill commences, they will not have that protection. Again, it doesn't seem to be equitable or fair. If you are going to have this protection, why is it only restricted to those who are currently civil celebrants? If there's a moral or ethical imperative here to provide this level of protection, why would it only be restricted to those who are currently civil celebrants and not to those who may register in the future? These are ethical protections. These are not changes to tax law where we may seek to grandfather people who've made investments in a certain way. You either have a moral or conscientious right to a protection or you do not; it's not something that changes depending on whether the month is March, April or May or the day is Wednesday, Thursday or Friday. These should be things that are central to what we want to decide.

If those on the other side want to decide that there should be no conscientious objections at all, in my view that should have been their consistent position—not to have these protections at all. Indeed, the majority of the bills that have come before this place to change the Marriage Act to include same-sex marriage have had none of these protections, and they've required all civil celebrants, including existing civil celebrants, not to have a conscientious objection.

But this bill does not do that. This bill does include a conscientious objection, but only in a grandfathered way, which does not make sense. If you believe that this is an area that deserves some degree of thought and protection, then it should be extended to all—those in the future as well as those in the past. It should be extended to those of a religious viewpoint and those of a non-religious viewpoint. That's why these amendments are a more elegant and consistent way to handle this issue and to provide a conscientious objection to all celebrants and to all Australians who want to participate in marriage but who also want to do so in a way consistent with their conscientious views.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I will make another brief contribution on this issue. I rise to support this amendment by Senator Brandis and Senator Canavan. I've spoken previously on why I think a right to conscientious objection is necessary for civil celebrants.

I'd like to make one new observation that I haven't made before. It is quite amusing for me as a non-religious person to see other non-religious senators from the left of politics, in the Labor Party and the Greens, stand up and say that people of religious faith have special values that are worth having special protections but that those of us without religious faith, who form values for other reasons, are not worthy of protections and should not have our consciences protected.

Senator Brandis gave a very eloquent history of religious liberty earlier, and I share his views on that entirely. But one thing I would add is that the foundation of our belief in religious liberty is freedom of conscience, because we believe it is right for someone to be able to hold their own mind and hold their own view and live their life according to their beliefs, whether they are spiritual or non-spiritual. Spiritual categories of beliefs, religious beliefs, are very important and very worthy of protection, but other beliefs that people sincerely and deeply hold are no less worthy of protection. Yet that is a position that, presumably, many atheists on the other side of the chamber are advancing: that their own beliefs, their own views, are somehow inferior and less worthy of protection than those of people who hold their beliefs based on religious values. I think that is a very strange position for a modern, secular, left-wing political party to take, and yet that is what we've seen here tonight.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Can I just adopt what Senator Paterson has said and observe, in closing the debate, how ironic it is that several minutes ago the Australian Labor Party voted against amendment (1), which was an amendment to protect religious liberty. They propose now to vote against amendment (2), on the grounds of religious liberty.

The CHAIR: The question is that the amendment (2) on sheet 8333 revised, moved by Senator Brandis, be agreed to.

Progress reported.

Scott Ryan (President, Special Minister of State) Share this | Link to this | Hansard source

Pursuant to order, the Senate is now adjourned.

Senate adjourned at 23:05