Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

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

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

by leave—I, and also on behalf of Senator Burston and Senator Georgiou, move the One Nation amendments on sheet 8332:

(1) Clause 2, page 2 (table item 4), omit the table item.

(2) Schedule 1, item 1, page 4 (line 8), omit "civil", substitute "authorised".

(3) Schedule 1, item 2, page 4 (line 27), omit "(iv) a religious marriage celebrant; or".

(6) Schedule 1, item 21, page 11 (lines 13 and 14), omit the heading to section 47A, substitute:

47A Authorised celebrants (other than State and Territory officers) may refuse to solemnise marriages

(7) Schedule 1, item 21, page 11 (line 15), omit "A religious marriage celebrant", substitute "An authorised celebrant (other than a State or Territory officer)".

(8) Schedule 1, item 21, page 11 (line 19), omit "a religious", substitute "an authorised".

(9) Schedule 1, item 63, page 17 (lines 11 to 19), omit subsection 40(2AA), substitute:

     (2AA) An authorised celebrant (as defined in subsection 5(1) of the Marriage Act 1961) may refuse to solemnise 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 47A(1) of the Marriage Act 1961 apply.

We also oppose schedule 1 in the following terms:

(4) Schedule 1, item 5, page 5 (lines 13 to 17), to be opposed.

(5) Schedule 1, items 8 to 17, page 5 (line 22) to page 10 (line 6), to be opposed.

(10) Schedule 1, item 64, page 18 (lines 5 to 13), to be opposed.

(11) Schedule 1, Part 4, page 19 (lines 1 to 13), to be opposed.

These are very simple amendments. The Marriage Amendment (Definition and Religious Freedoms) Bill 2017 seeks to create two new categories of marriage celebrant. One is called a civil marriage celebrant. The other is called a religious marriage celebrant. The purpose of the two categories of marriage celebrant is to allow couples to make informed decisions about whether to engage the services of a celebrant, in the knowledge that a religious marriage celebrant may refuse to solemnise their marriage for religious reasons. This distinction between civil and religious marriage celebrant creates unnecessary division in the Marriage Act, which refers only to authorised celebrants. Why create two new divisive definitions to replace one uncomplicated and uncontroversial definition?

The difference in definition between religious marriage celebrants and civil marriage celebrants is unnecessary. If a marriage celebrant wants to refuse to solemnise a marriage, they should be entitled to do so without recrimination. If a marriage celebrant wants to refuse to provide their services, they should not be required to give their reasons. One Nation's amendments would remove the distinction between religious marriage celebrants and civil marriage celebrants and revert to the single-definition term 'authorised celebrant', which has stood the test of time in the Marriage Act. There is no justification for requiring someone to give their reasons for refusing to solemnise a marriage, whether those reasons are religious, ethical or conscientious objections, or that the marriage celebrant has had a better offer or is simply having a bad day.

I have listened to the debate in this chamber from both sides—well, no; virtually it's only from one side, because the other side, mainly Labor, have not even spent time in the chamber. They have rarely risen to their feet to debate this. They are not listening to those nearly five million people that voted no in the survey. Another 21 per cent didn't cast a vote at all, for whatever reason, and I've heard that some people never even got their vote. There is also an argument about whether it was done lawfully, meaning that votes were thrown out in the trash and people were coming along and picking them up. Votes were sent to places where others were collecting them out of their mailboxes. So was the vote really true and a clear reflection of what a lot of Australians wanted?

We see here this argument about the religious and the non-religious. I notice in the morning every day when we stand up to say the Lord's Prayer in this place that the majority of those on the opposite side don't even say the Lord's Prayer, so their regard for religion is non-existent. It is of great concern to me that this legislation is being pushed through the chamber, and I don't believe there's a choice in this chamber at all.

The CHAIR: Senator Hanson, please resume your seat. Senator Pratt?

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

My point of order is that it is out of order for the senator to refer to another senator's religion.

The CHAIR: That is correct, although I don't believe Senator Hanson referred to particular senators but to the party as a whole. But I will remind senators to be respectful in the debate. Senator Abetz?

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

Can you clarify for the benefit of the chamber your ruling that you are not allowed to refer to another senator's religion?

The CHAIR: Thank you, Senator Abetz. I'm not making a ruling; I'm referring to what has happened previously, where it is disrespectful to reflect on the religion of a senator in this place. Senator Hanson, please resume.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Let me make it quite clear: I did not refer to any particular senator's religion. I referred to the fact that those on the opposite side, and most of those on the Labor side, do not say the Lord's Prayer. We are discussing in this bill—

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

A point of order, Chair: Senator Hanson is again reflecting on the religious practice of senators on this side of the chamber.

The CHAIR: Senator Hanson, I did make a statement that you are going close to reflecting. Whilst you haven't named a particular senator, you have named a particular party, so, in a sense, you are reflecting on all senators. I've made the statement. It's your role as a senator to accept the statement that I've made, otherwise it could be that you are dissenting. The other practice is not to repeat what has been ruled on, so I'd ask you now to be mindful of the comments that I've made.

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

On a point of order: I support Senator Pratt on this. For anybody to stand in this chamber and say you do not—

The CHAIR: Senator Hinch, that's not a point of order. I've ruled on that. I'd ask you to resume your seat, please. Senator Hanson, please continue.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

The bill does reflect on religious grounds, and we are actually now debating the rights of a religious celebrant or a non-religious celebrant. I also reflect that, as I said, nearly five million people have voted no. We are making decisions for the future of this country. Actually not everyone—and it's quite reflective—is agreeable with same-sex marriage. I see there is a lot of intolerance that is happening in this chamber. The whole fact is those people who are marriage celebrants are not taken into consideration for whatever reason, whether it be for religious or non-religious reasons. If they don't wish to marry a couple, they are going to be left wide open, because they may be sued or open to litigation. Surely there are going to be enough people out there who wish to marry couples of the same sex. Why is it not the case that you can't be a bit tolerant on this and accept those wishes of the people? I'm sure that there are a lot of people in your electorates who would agree with what I am saying.

We have allowed political correctness and minorities to start taking our country, and the people have not got the right to even have a view or an opinion. Have we got to a stage in this country where the thought police are actually controlling our views? We are not saying, 'Okay, you went to the plebiscite, and you asked the question: do you agree with same-sex marriage?' The public have voted, those who did vote, and 61 per cent said yes. Now, you are actually saying that you can't have an opinion if you are a marriage celebrant and that you must marry everyone; you must marry the same sex. What are you so worried about? Why are you so concerned about this? Why don't you give those people those rights? Is it because you want to control people and put them down? These people have a right to say no. They have a right to an opinion. Has it come to us losing our democracy in this country? That is what is happening. And it will flow on to other areas. I'm talking about the education system and everything. It's happening here. We don't have any control any longer.

You make it in regard to religion too. I refer you to section 116 of the Constitution:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion—

basically its saying that you can't control anyone over their religious beliefs—

and no religious test shall be required as a qualification for any office …

Under that category, you are saying that people can only be religious to deny that right to marry a couple. But under our Constitution, it says there cannot be any religious test. Regardless of whether anyone wants to put themselves down and say, 'I am of a religion', under our Constitution they can't do that, because you are forcing a religious test on them. That is under our Constitution, so you want to think clearly about this. You can't force anyone to have a religious test. So if a marriage celebrant says they are not of a certain religion, they have the right then to deny marrying a same-sex couple.

I go back to it again: it is clear the way it is under the act now that it is an authorised celebrant. Leave it at that. Let the people make their own choices and you will get the support of the people. If you go out and impose it on people, you are going to open it up to litigation. There are going to be concerns for those people, even for the rights and benefits of same-sex married people. You are going to have people in this country who will actually advertise they are quite happy to marry same-sex couples. But for the ones who don't want to marry them, give them the right to deny it. I'm sure that if a couple wants to get married and they know that a celebrant really doesn't want to marry them, they wouldn’t want to have them anyway. Give them that right from both sides to have that choice. Thank you.

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

Senator Hanson has spent a lot of time talking about intolerance in this debate. The intolerance has come from the 'no' vote. The intolerance has come from people like the Lyle Sheltons of the world and some of our own members of the Senate. They have tried to filibuster this debate. They've tried to push it away as fast as they can and as far as they can, which is why I made the move earlier this week to push two more hours into the debate session yesterday so that we can get this vote done and dusted by about 11.30 this morning.

Last week on Sky we had Senator Bernardi, who was boasting that there would be 62 amendments to this issue. I said at the time: 'Well, there'll be 60 of them, obviously, for you. I'll be voting against.' The other side, Senator Hanson, have been listening to you. We've been listening to you for months and months and months. The issue has been going on for months. For gay people, it has been going on for years and years. The Prime Minister says that this issue has brought Australia together, has united Australia, because we voted 62 to 38 in favour of same-sex marriage. It didn't unite Australia. It did in one way, I'll grant that, but I think of the LGBT people in this country this Christmas. When Christmas comes along and they are sitting there at the table, and suddenly a gay man finds out that his own dad voted no, how's that going to be at their Christmas table in all the bonhomie of the Yuletide season? That's what angers me about this.

I voted the plebiscite down. My vote was one of the ones that killed the plebiscite, and I'm proud of it. I was opposed to the postal ballot. The one thing the postal ballot has done is show that the majority of Australians do want same-sex marriage. I recall the day the vote came up. The man from the Bureau of Statistics did his Rob Oakeshott impersonation and went on for minutes and minutes. Coincidentally, I was standing next to Penny Wong. I looked at her and I said to her: 'Do you want time by herself? It's going to be a terrible time for you. Do you want to be alone?' She said, 'No.' Then I said to Senator Wong, 'I apologise.' I said: 'This is a disgrace—the fact that we are standing here now, at four minutes to 10, and your life is being decided by strangers. People you don't even know are deciding how you should live your life, how you should either have or not have the same rights as every other Australian, whether you get married or don't get married.' And there are gay people who won't get married, who don't want to get married and they won't, but at least they'll have the same rights.

I've said before that it's a shame that it took us so long. Who would have thought that Ireland and New Zealand, across the ditch, would get there before we did? I'm proud to be here today. I'm proud we're going to do this. We talk about religion and tolerance—and I'll stay away from the specifics—but, as an atheist, I find it offensive for anybody to stand and lecture me because in the mornings I do not stand up here to recite the Lord's Prayer. I do put my head down to acknowledge the Indigenous people in this country, but that is my right and my lot. It's offensive for you, Senator Hanson, to even allude to it.

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

On behalf of a loose but quality group of senators that supported the Fawcett and Paterson amendments, I have the privilege of rising to express certain views in relation to further amendments that will be moved today. I just want to place that on the record.

In relation to Senator Hanson's contribution, can I acknowledge that the postal survey may have had its certain weaknesses, but I think, at the end of the day, we can accept—and this is coming from me as a 'no' voter—that the will of the Australian people was, regrettably, to allow same-sex marriage in the Marriage Act. And whilst we can argue around the margins, and it's an interesting debate, at the end of the day I don't think it makes, with respect, any material difference to the outcome. It might have been 59 per cent instead of 61 or 62, but, at the end of the day, I think there was a clear expression by the Australian people. I want to place that on the record and move onto Senator Hinch's very stereotypical commentary.

He assumed and presumed to talk on behalf of gay people. As Senator Hinch and others in this place know, there are many gay people who voted no and advocated for the 'no' vote. So this attempt to pigeonhole everybody that might be gay or lesbian into a particular category does a great disservice to our fellow Australians. Just as much as there were good straight or heterosexual—to use those terms—men and women who voted yes for same-sex marriage, there were same-sex attracted people who voted no and advocated for the 'no' vote. That is where genuine tolerance comes into this debate—recognising that there are heterosexuals and homosexuals who do not fit your stereotypical view of the world. That is where I would just invite Senator Hinch to acknowledge that there are those varying views in the Australian community—and they are all valid views. They are all views that ought be allowed to be given expression.

If, as I suspect, the definition of marriage is changed later on next month when the House of Representatives deals with it, I trust that the same tolerance will continue to be allowed for people to say that this was a regrettable change. That is what a free democracy is all about, not trying to shut down people and say, 'We've heard too much of them' or 'Senator Bernardi allegedly boasted that there would be a lot of amendments.' Well, in this place, a lot of people who are genuinely motivated want to move amendments to make legislation better. It happens each and every day. To say to somebody who's done a lot of work and put a lot of thought and consideration into amendments that they are just doing it so they can boast on Sky, I think, once again, displays an intolerance. It has been amazing to me how often those who preach tolerance are often the most intolerant to people who disagree with them.

I will now turn to the actual amendments moved by Pauline Hanson's One Nation party and indicate support for them. As a Liberal, I think the less bureaucracy the better. There is no need to categorise people into two different categories. On human rights, as I have said through this debate—and I will continue to say it—there are certain human rights where religious freedom, conscientious objection or conscientious freedom are just as vital. So men and women of no religious disposition should be given just as much right as people of a religious disposition in relation to these matters. I have said previously that, just as there ought be rights given to the person standing at the front of a congregation clothed in clerical garb—if that is what their particular denomination is—why should those rights then be denied to the people sitting in the congregation and in the pews? Why should a minister of religion be clothed with extra rights than the congregants or, indeed, those that never darken the doorstep of a church but have conscientious beliefs? Their rights should be protected in a tolerant society.

To try to categorise and pigeonhole certain people, saying, 'We will register you because of your religious beliefs and, therefore, we need a special register,' is, I think, unnecessarily divisive and unnecessarily bureaucratic, and no case has genuinely been made out as to why a change such as that being suggested in the original bill is needed. That is why we support Senator Hanson's amendments.

Whilst we are talking about percentages, I would note that over 50 per cent of the Australian population still identify as Christian, and there are a host of other religions as well. When you start adding them all up, dare I say it, you get close to that magic figure that Senator Hinch always likes to announce—namely, 62 per cent—in relation to the postal survey. But, all of a sudden that 62 per cent in the postal survey—you know that survey that was non-binding, irrelevant, of no value at all—is cast iron; it has to be absolutely followed to the letter of the law. But, of course, we're not doing that in this bill, because the only question that was asked was about same-sex marriage as opposed to all the other things.

That aside, when there is a 62 per cent majority of Australians that are of a religious belief, people like Senator Hinch don't want to hear that 62 per cent figure, nor do they want to hear the figure in the same polls that were taken, which predicted the outcome of the survey, of an even greater majority in favour of protecting people's freedoms. Those percentages, those figures, are conveniently discarded, ignored, as though they don't exist. The simple fact is you can be a 'yes' voter—and I know many who did vote yes—but still believe in religious freedom, in freedom of speech, in conscientious objection, in parental rights and especially protections for charities which this Senate so arrogantly threw out last night. In so doing, a lot of 'yes' voters will feel aggrieved.

Coming back to the amendment, the amendment makes sense. There should only be one category—and that is the authorised celebrant—and the need to try to categorise two different lots is completely unnecessary. In a society that celebrates—dare I use the words—diversity and tolerance, we should say to people, be they celebrants of a religious disposition or celebrants not of a religious disposition, 'You are free and able to celebrate those marriages that you seek to solemnise and, should you wish not to, there is no pressure on you.' Some, for example, religious celebrants are of the view that you should not be celebrating the remarriage of a divorced individual. That is something that is understood. I'm not sure that I necessarily agree with it, but that is their right. In a free and tolerant society, they should be able to say, 'Unless you are part of our congregation, unless you subscribe to our beliefs, unless these characteristics apply, because of our faith or because of my beliefs as a civil celebrant, I'm sorry, I cannot assist you on this occasion.' This is, in fact, about tolerance. This is, in fact, an amendment about giving individuals their fundamental freedoms and rights, and the group of senators that I have the honour of speaking on behalf of support these amendments.

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

In this debate, I'm exercising my conscience, as our party decided long ago. I speak for myself. Nobody else speaks for me on these issues, and I've made my position very clear on this all the way along. I support Senator Hanson's amendment. I think it's probably not as good as some of the others that have been proffered and voted against, but it does provide certain protections. It makes sense, and it is one that I support. That's my position as an individual senator exercising a conscience vote.

I'm very, very disappointed that the Labor Party, for all of their rhetoric about a conscience vote, have come to this debate locked in as a political party. The Greens, of course, are the same. As I said yesterday, I don't, fortunately, know the Greens very well. I don't know of any of their religious or other beliefs—I suspect they have few beliefs apart from themselves—but I do know that there are a number of members of the Labor Party who have deeply held religious beliefs. I do know that many of the members of the Labor Party do not say the Lord's Prayer in the morning, and I say that as a matter of fact. That is something that I don't have to tell the Senate. Most of the Labor Party people who don't say the Lord's Prayer would tell the Senate themselves. Australia used to be a place where you could have these sorts of conversations. Within this chamber, we are even more encouraged to speak openly about factual matters, as long as we're not personally attacking or impugning motives of other senators. So I repeat Senator Hanson's statement that many in the Labor Party are not Christians and do not say the Lord's prayer.

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

The senator is reflecting on the religion of senators in this place.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

I join with Senator Pratt in reflecting that the senator is himself reflecting in contravention of your ruling.

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

Can I be given a chance to talk? I assume that was a point of order. Of course, Senator Pratt didn't say it was a point of order.

The CHAIR: Senator Macdonald, please resume your seat. It was a point of order, and I intend to—

She didn't say that. Can I speak to the point of order?

The CHAIR: No, because that would be debating with Senator Pratt. Let me put what I—

When a point of order is raised, it allows people to have a different view on the point of order.

The CHAIR: Senator Macdonald, please resume your seat.

That's been the ruling for the 27 years that I've been here.

The CHAIR: Senator Macdonald, please resume your seat. It is up to me how many points of order I entertain, and I'm sure that you're aware of that.

Mine is not a point of order. I was talking on her point of order.

The CHAIR: I am going to remind senators in this place that standing order 79 says:

… it is not in order to refer to a senator's religion in debate.

I beg your pardon—it's a ruling of the Senate. Senator Macdonald, when you first started to speak you were fairly general, and then you became more specific. I would ask senators in this place not to reflect on the religion of senators in particular or senators from particular parties. And I ask you, Senator Macdonald, to also not do that.

Which standing order says that?

The CHAIR: I beg your pardon, Senator Macdonald. I inadvertently called it a standing order and then I said it's a ruling.

Which one?

The CHAIR: It's number 79, and it's from President Calvert. It's in Odgers at page 261.

And that says you can't refer to anyone's religion in this chamber?

The CHAIR: I will read it to you. I did read it. Perhaps you were distracted, looking at something else. It says:

… it is not in order to refer to a senator's religion in debate.

That's from President Calvert in 2005, and it's in Odgers, 13th edition, at page 261.

If you listened to me, I haven't referred to anyone's religion. I've referred to the fact that a number of Labor Party people quite openly say that they are not religious, that they are atheists. And in fact Senator Hinch just said he was an atheist.

The CHAIR: Senator Macdonald, please resume your seat! I have explained what I heard you say. I've asked you to consider carefully what you continue to say, because, whilst in the beginning you were fairly general in your comments, you became more specific. This debate has largely been quite respectful. It is a debate, like many we have in this place, that creates a lot of emotion from senators, and I would ask you to continue on without referring to what people may or may not do at the beginning of the Senate.

This chamber should be the bastion of free speech. We used to have free speech in Australia. Senator Hinch, in his contribution, said he was an atheist. Does that mean that you should have stopped Senator Hinch from saying that he was an atheist? I'm not talking about anyone's religion as such.

The CHAIR: I've made my point of view clear. I would ask you to respect that point of view, and I'm now going to go to Senator Pratt, who stood presumably on a point of order.

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

On a point of order, Senator Macdonald has directly reflected on Senator Hinch's religious practice.

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

On the point of order, Madam Chair: as I just indicated, Senator Hinch himself said that. You didn't stop him from saying that, but you're stopping me from repeating what Senator Hinch said in this debate. Please make a ruling that is within the standing orders and in accord with the high traditions of this particular chamber where people are able to speak their mind with some protection from the chair about what can and cannot be said. This is the most ridiculous ruling I have ever heard. Most of the Labor Party will tell you they are not Christians and they don't support Christianity. I am simply repeating that fact, and that is not against standing orders.

The CHAIR: Senator Macdonald, you are now verging on dissenting against the ruling I have made. I have read you the rule from Odgers. I have asked you, respectfully, to refrain from referring to people's religion. I would ask you now to continue the debate.

Madam Chair, respect is a very two-way street—

The CHAIR: Senator Macdonald, please resume your seat. I've asked you to please continue the contribution that you are making about the amendment as put by Senator Hanson.

Respect, I say, to my colleagues in the chamber, is a very two-way street, and people's opinions should be respected. I respect Senator Hinch's opinion—not his opinion, his statement of fact, that he is an atheist, and he chose to tell this chamber that in this debate.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

On a point of order, Madam Chair: the senator is continuing to reflect upon the religious beliefs of my colleague, Senator Hinch, in contravention of your continued ruling. I would ask that he now be brought to order in some more substantive sense.

The CHAIR: Thank you, Senator Steele-John. Senator Macdonald on that last occasion was simply reflecting what had been said by Senator Hinch. Senator Macdonald, please continue your contribution.

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

I support these amendments proposed by Senator Hanson, but in doing so I repeat what Senator Hinch said about himself, and I repeat what many Labor Party people will tell you in this chamber about not their religion but the fact that they don't follow Christianity. That's not talking about their religion, because they don't have a religion and they're the first to admit it. I make no judgement about that. I'm not being judgemental in saying they don't have a religion. A lot of my friends don't have religions, a lot of my friends will not say the Lord's Prayer, but I think when this chamber and this whole debate get to a curtailment of speech where you're not even able to reflect on a fact that people themselves talk about, then Australia, I'm sorry, is heading down a very, very sad path. It's a matter of regret for me that there are many in this chamber who would urge that that happen.

In this whole debate, my position has always been very clear. From my upbringing, my position as a Christian and as a member of the Anglican Church—I challenge anyone to say that I cannot tell this chamber or the world that I am a Christian and a member of the Anglican faith—I've had a view about marriage as being a religious ceremony that I have grown up with. I have found it very difficult to bring together the thoughts of my gay friends having a marriage which I understand to be a religious ceremony.

As I have said many a time, I have many gay friends, including a very loving, personal couple. My argument with them was why they needed to use the word 'marriage'. I could never understand that. I have been a member of a parliament which, over the years, has removed all discrimination against gay people—all discrimination. It was on that basis that I decided I would vote no in the plebiscite. But I also indicated that, as a parliamentarian and one who believes in democracy, if the majority of my fellow Australians had a different view from me then I would be the first to support the ability for same-sex couples to marry. That's what I intend to do and that's what I've made clear all along. But I do think that people who have religious convictions—and there are many in the Labor Party who don't and there are some on my side of politics who don't have religious convictions as well, and that's a matter for them; it's a free country—should, like Senator Hinch, who said that he was an atheist, be able to tell the world their convictions. He should be able to tell the world and tell this parliament that he is an atheist, just as I am able to tell this chamber that I am a Christian—not a very good one, I have to say, but I am a Christian and a member of the Anglican Church. In this chamber, speech should be as free, if not freer, than anywhere else in Australia, and I challenge anyone to say that they can prevent me from telling this chamber my religion and my belief in Christianity.

Madam Chair, this whole debate has, I have to say with regret, shown a lot of disrespect and intolerance. In fact, one of our colleagues who acts in your position when you're not here actually wore an insignia while sitting in the chair indicating a partisan view on this debate. To his credit, when I raised it, he did remove the badge. But I see other senators in this chamber, contrary to standing orders, which seem to be not quite as visible as they are on other occasions, wearing insignias that clearly indicate a position in this debate. I know that's against standing orders, because I once wore a hi-vis shirt that said I supported the coal industry. At the call of those who now think it's okay for them to wear insignias, I was made, on a ruling by the President, to remove that hi-vis shirt. Yet it seems to be in this intolerant age which we are living in that there is one set of rules for some people but a different set of rules for other people, depending on their political philosophy. That intolerance and the intolerance I see in this debate, in fact, saddens me and makes me despair for the future of this great country—a country which, worldwide, is renowned for its freedoms.

We talked about this country having removed several years ago every single discrimination against people who were gay or of that disposition. We've removed every single discrimination from the laws of Australia. I've been one of those who have strongly supported that all of my public life. I raised in the Senate—and you never hear the Greens political party in particular raising this issue—that I recently attended the Inter-Parliamentary Union conference in St Petersburg, where a female Italian delegate berated the Russians for having discrimination against gay people. She said that in Russia they have detention camps—and she named five—where gay people are put. In those international forums, those who are spoken about always have a right of reply. In response, the Russian delegate didn't particularly address that accusation but said to the Italian lady, 'Why are you attacking us? There are parliamentarians in this room who belong to parliaments who have legislated to put to death people who are gay for no other reason than the fact that they are gay.' Do you hear the Greens ever berating those countries—many of them in the Middle East—that have these particular issues? They'll talk about Manus Island. They will work with GetUp! against coalmines, but do they ever raise their voice about the ultimate discrimination of gay people, which is the putting to death of them because of their being?

So, in Australia, when we talk about discrimination, those discriminations of any sort were removed from the Australian laws many years ago. I'm proud to say that, in some small part, I was involved in those pieces of legislation. But it does distress me that we now have this position that, apparently, it seems to some that being religious, being a Christian, suddenly makes you a second-rate citizen, with not the same rights and entitlement to respect that other Australians have. I despair for the future of our country if that intolerance is going to continue to be displayed in the way it has been in some instances in this debate—and, certainly, has been in relation to some of the matters that Senator Hanson mentioned in moving her amendment.

I come back to the point before the chamber. I support Senator Hanson's amendments. As I say, I think there were other amendments that were better framed, but they haven't achieved support in this Senate. So I will be supporting these amendments by Senator Hanson.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

May I just remind senators that advisers need to be in the advisers' box and not on the floor of the Senate.

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

I will be brief. I do say the Lord's Prayer, Senator Hanson, when I'm in this chamber, and I do so as a personal act of faith. Second, we have a ruling from actually a Liberal president which discusses the way in which people can debate religion and other's religious beliefs in this place, in the same way that we have rules on reflections on other members and senators or members of the other place. And it was a ruling, I think, of President Calvert, who was not a Labor President but a coalition President. Anyway, that has all been very interesting, but we do have a number of people here in the public gallery who are here to watch the Senate vote—to do what we are paid to do, which is to debate and vote. I, for one, think it's probably a good thing if we get to vote on Senator Hanson's amendment soon and continue to progress the bill.

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

I rise to indicate my support for the One Nation amendments on sheet 8332. All non-government celebrants should be free to refuse to solemnise a marriage. A secular state should not give privileges to religion. Celebrants who wish to specialise in solemnising same-sex marriages should be free to do so. Religion should not be afforded a privileged place in a secular state. People who are not religious still have convictions and they still have freedom of conscience, as much as people who have religious convictions do. People who are not religious should not be treated as second-class citizens. If we refuse to extend the freedom to refuse to solemnise a marriage to all non-government civil celebrants, we'll be left in a situation where celebrants who only want to solemnise straight marriages can do so under the cover of religion, but celebrants who only want to solemnise same-sex marriages will not be able to do this, as there's no religious cover for such a decision. We will, in fact, be hurting the gay community.

There is another aspect about Senator Hanson's amendment that I think no-one has yet drawn attention to, and that is item (2) on sheet 8332. It amends the objects clause in Senator Dean Smith's bill, replacing the reference to 'civil celebrants' with a reference to 'authorised celebrants'. 'Authorised celebrants' is the term used in the Marriage Act. There is no reference to civil celebrants in the Marriage Act. For anyone who wants to oppose this amendment, including item (2), you need to say why you prefer a reference to civil celebrants rather than authorised celebrants. In particular, I ask Senator Wong: why do you prefer the term 'civil celebrant' to 'authorised celebrant', which is what Senator Smith's bill will introduce? Where is the term 'civil celebrant' defined? Does a civil celebrant include a state or territory officer authorised to solemnise a marriage? If not, why would you support an objects clause that excludes marriages solemnised by state and territory officers? Does a civil celebrant include a Defence Force chaplain? If so, doesn't this turn the term 'civil' on its head? If not, why would you support an objects clause that excludes marriages solemnised by Defence Force chaplains? I prefer my amendment, which permits civil celebrants to refuse to solemnise a marriage, but I think this particular amendment of Senator Hanson's does address this issue of definitions well. If it were to succeed, I would withdraw mine, because it does address this issue of the definition.

The CHAIR: Before I move to the amendment, I will just explain that there are two parts to the amendment that Senator Hanson moved. The first question I am going to ask is whether or not senators agree with amendments (1) to (3) and (6) to (9) on sheet 8332. The second question would go to items (5), (8) to (17) and (64) and part 4 of schedule 1—that they stand as printed—and those items are (4), (5), (10) and (11) on sheet 8332. We are dealing with the first part. The question is that amendments (1) to (3) and (6) to (9) on sheet 8332 be agreed to.

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

(In division) Chair, I want to raise a point of order. I'll be very precise about what's in the standing orders. I draw your attention to a senator in this chamber who is breaching the orders made by a number of Presidents, one in relation to the order about wearing insignias supporting any particular approach in this chamber.

The CHAIR: Senator Macdonald, I am happy to come back to this, but at this point we are in a division and you can only raise a point of order in relation to the division.

Well, the division might not be accurate—

The CHAIR: Senator Macdonald, I have suggested that you raise that point of order once this division has concluded.

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

(In division) Chair, point of order—

The CHAIR: I'm sorry; I can't hear you. I have said that the point of order that Senator Macdonald wishes to raise is not to do with the current division. So Senator Macdonald may choose to raise that point of order once the division has concluded. The question is that items 5, 8 to 17 and 64 and part 4 of schedule 1 stand as printed.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

Senator Macdonald on a point of order.

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

Chair, I want to raise a point of order. You've been very precise in enforcing the standing orders. There is a senator in this chamber who is clearly breaching the rule about wearing insignia supporting a cause here. I ask you to exercise the same rigour that you've used on other points of order on all senators in this chamber and not allow one senator to think he or she is better than anyone else and there are special rules for him or her just because of some inflated view of their own importance.

The CHAIR: Senator Siewert?

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Chair, I'm wondering if Senator Macdonald is referring to my badge for Family Matters.

The CHAIR: Senator Macdonald, did you wish to add anything to your point of order?

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

I want you to enforce the standing orders, as you have been so diligent in doing this morning.

The CHAIR: I certainly heard you say that, Senator Macdonald. I was simply asking you if you wish to clarify because there are a number of senators who are not clear on what it is that you are objecting to in particular.

It would be inappropriate for me to reflect on their inability to understand, as that would be a reflection. We always wear badges supporting various charitable causes. You look around, Chair. You're in charge of the joint. If you see anyone who is breaching a standing order that has been enforced by past presidents, including against me, then I ask you to enforce those standing orders again. If you can't see them, then perhaps you should go to Specsavers.

The CHAIR: Thank you, Senator Macdonald. It wasn't a matter of whether I could see them or not; it was seeking further clarification. I thank you for adding that clarification. As senators would be aware, and as Senator Macdonald alluded to in his point of order, there is a practice in the chamber that we wear small badges and pins to recognise particular days and so on. That's been a longstanding custom in the Senate.

Senator Macdonald is also correct in that we do have standing orders and rulings by Presidents that go to something more than that. There is a distinction, and the distinction is, where it is obvious that the message reflects on the views of the senator or is broad enough to be interpreted, the senator is called to order about the prop or the message that they are wearing. On the point of order that you've raised this morning, Senator Macdonald, I don't believe that the range of badges and pins that are being worn today in the Senate are a breach of that particular ruling. Thank you.

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

Madam Chair, may I ask that you, in your ruling, consider the ruling of Temporary Chair Senator Whish-Wilson which required both me and I think a member of the Greens party to remove from display the political campaigning for the 'yes' and 'no' campaigns as demonstrated by the rainbow flag and 'It's O.K. to Vote No.' That was upheld by Senator Whish-Wilson—I accept that—but I do make the point: there are badges signifying the political campaign we've gone through in this place. We're just looking for consistency.

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

I suspect that I'm the person that Senator Macdonald is referring to, and I think I'm entitled to have something to say here. The previous President of the Senate, Senator Parry, made no comment at all when Senator Hanson turned up here wearing a burqa.

The CHAIR: Thank you, Senator Hinch. I don't believe you are the person being referred to.

I'll leave that alone and go to the badges. Yesterday Senator Macdonald said, 'We all wear badges in this chamber; we're all entitled to,' and yet he challenged Temporary Chair Senator Whish-Wilson for wearing a badge inadvertently yesterday.

The CHAIR: Senator Hinch, please resume your seat.

Senator Ian Macdonald interjecting—

The CHAIR: Thank you, Senator Macdonald. Please resume your seat.

Senator Ian Macdonald interjecting—

The CHAIR: Can you resume your seat, Senator Macdonald. Thank you. I've indicated to the chamber my interpretation of the standing order in relation to the point of order that you have made.

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

On the point of order—

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

Which point of order?

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

I'm just actually clarifying; I think it's Senator Macdonald's point of order. Can I respectfully—

Senator Ian Macdonald interjecting—

The CHAIR: Senator Macdonald, resume your seat, thank you. We will hear Senator Wong's point of order in a respectful way.

I am happy to make this contribution as a committee contribution, if that would make you feel better, Senator Macdonald.

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

Well, it would abide by the standing orders.

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

Senator Macdonald, a little courtesy this morning, I think, would be good. This is a bill that has been the subject of a national vote, and there are many people across the country who are observing this—not a national vote, a national survey. Does that make you feel better? There are many people who are watching the behaviour of this chamber. People are entitled to their different views, but having an unseemly and, frankly, discourteous argument about badges is less than this Senate ought be doing. If Senator Macdonald or Senator Bernardi believe that the attire of one of the senators is inconsistent with the standing orders, I think it's incumbent upon them to raise that. I indicate, from the opposition's perspective, regardless of who is in the chair, we have respected the ruling of the chair in relation to dress code.

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

On the debate, as Senator Wong well knows, I have not raised the issue about a badge, and Senator Wong contributes—

Honourable Senator:

An honourable senator interjecting—

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

This is not a point of order, if you'd opened your ears; I'm talking in the debate as Senator Wong did. Madam Chair, you've allowed Senator Wong to speak in the debate on a matter that wasn't particularly germane to it. There was direct misrepresentation by Senator Wong of what I said, when I particularly mentioned that it didn't refer to badges. What I was saying was that, if this chamber is going to work, the people in the presiding officers' chairs need to enforce the rules. There is a senator in this chamber, to anyone's view, who is not complying with those rules. What I'm asking, in my contribution to this debate, is that whoever is in the chair enforces the rule, as you, Madam Chair, have so rigorously done so far in the debate today.

The CHAIR: Thank you, Senator Macdonald. Please resume your seat. I believe there is a point of order. Senator Whish-Wilson?

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

Madam Chair, if Senator Hinch were to remove his scarf, Senator Hanson-Young would have to remove her dress, because it's a rainbow dress!

The CHAIR: Senator Whish-Wilson, that is not a point of order. Frankly, it does not contribute to the debate before us. Senator Macdonald, did you wish to continue?

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

Senator Hanson-Young, I will give you my handkerchief—not to cover the dress but to deal with the flood of tears that would no doubt come. Madam Chair, continuing the debate, Senator Wong talks about this being a respectful debate. Senator Wong, of course, as we all know, is the worst offender in respect and disrespect at question time. I have made very clear in this debate what my position is. I have actually achieved this in ways Senator Wong hasn't done, by voting for the removal of discriminations against gay people, and I stand proudly on that record. I have indicated my own personal view, respectfully. What I am asking is that tolerance be shown in this debate and throughout Australia, but particularly in this chamber, for those who don't have the corporate view. I know there are many members of the Labor Party with deep religious convictions who are very uncomfortable about being corralled into supporting a Labor Party majority vote. That needs to be exposed to anyone. I don't care what their view is, I don't care what their religion is and I don't care whether they have religion or not—those are matters for them. In a debate that was intended to have a conscience vote by all senators, it's clear that some senators are not able to follow their conscience. That disturbs me.

Madam Chair, on the debate before the chamber that Senator Wong was speaking to, I'm not quite sure what contribution Senator Wong made in relation to the debate, but I have made my position clear. I agree this debate has to be respectful but, regrettably, the way others in this chamber have performed today shows that respect is not universal.

The CHAIR: Thank you, Senator Macdonald. Senator Fierravanti-Wells?

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

Madam Chair, I think in the interests of progressing this debate and getting on with what we are required to do, Senator Hinch, could I kindly ask you if you would remove your scarf? I think that would enable this matter to progress. I appreciate and I respect the situation, but I think otherwise we're just going to be bogged down in this debate. I just think that might be a sensible way of moving on in this debate.

The CHAIR: Thank you, Senator Fierravanti-Wells. Senator Hinch?

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

Nobody stood and complained when Senator Hanson wore a burqa in this chamber.

The CHAIR: Senator Hinch—

Everyone else has had their say, Chair.

The CHAIR: Senator Hinch, are you raising a point of order? If not, I have made the comment about your attire.

I thought it was just a debating point still.

The CHAIR: We are debating, but I have made my comment in relation to your attire.

Madam Chair, with respect, I was asked by another senator to take a certain action, which I will not do, and I agree with Sarah Hanson-Young who says, 'I'm wearing a rainbow dress.'

The CHAIR: I am in the hands of the Committee of the Whole. We have a number of amendments before us. Senator Leyonhjelm?

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

I move amendment (1) on sheet 8321 revised:

(1) Schedule 1, page 5 (line 21), after item 7, insert:

7A At the end of section 39

Add:

(4) A person who is authorised by subsection (1) or under subsection (2) to solemnise marriages must not refuse to solemnise a marriage unless section 99 or 100 of this Act applies.

[State and Territory officers]

The Marriage Act 1961 authorises certain state and territory officers to solemnise marriages. This includes officers with the duty of registering marriages. The Marriage Act outlines numerous circumstances where these state and territory officers must not solemnise a marriage. They must not solemnise a marriage where insufficient notice of the marriage is given, there are insufficient witnesses to the marriage, the parents have not given consent for a 16- or 17-year-old to be married, an interpreter to help solemnise the marriage has not declared their competence as an interpreter or the parties are already married to each other, or the marriage would be void. Reasons why the marriage would be void include that one party is already married, one party is the descendant of another, the parties are siblings, the state or territory officer is not authorised to solemnise a marriage at the place where the marriage takes place, a party fails to say words to the effect that they take each other as their wife or husband, there is an absence of real consent, or either of the parties has not reached marriageable age, being 18 or 16 in exceptional circumstances.

Where none of these legal impediments to a state or territory officer solemnising a marriage arises, section 39 of the Marriage Act states that a state or territory officer 'may' solemnise a marriage. But nothing in the Marriage Act requires a state or territory officer to solemnise a marriage in these circumstances. So the Marriage Act allows a state or territory officer to refuse to solemnise a marriage for personal reasons such as a dislike of interracial or interfaith marriage. This is perverse. State and territory officers, including officers with the duty of registering marriages, represent us all. They should carry out their duties. If for personal reasons they feel they cannot carry out their duties, they should quit.

The issue I identify will have greater significance once we legalise same-sex marriage because then the Marriage Act would allow a state or territory officer to refuse to solemnise a marriage because of a personal dislike of same-sex marriage. My amendment would fix this issue. It would insert a provision stating that a state or territory officer who is authorised to solemnise a marriage must not refuse to solemnise a marriage where there are no legal impediments to the officer solemnising the marriage. These legal impediments are captured in section 99 and section 100 of the Marriage Act. The specific wording of my amendment is that state and territory officers 'must not refuse to solemnise a marriage unless section 99 or 100 of this Act applies'. Allowing state and territory officers to refuse to solemnise same-sex marriages would undermine the purpose of legalising same-sex marriage. Surely, if we are to legalise same-sex marriage, then a same-sex couple should be able to go to a government marriage registry office with confidence that they will have their marriage solemnised—even an opponent of same-sex marriage should agree to that. We have separately debated the issue of whether and which non-government celebrants should be free to refuse to solemnise a same-sex marriage. But let me point out that it would be topsy-turvy to restrict any non-government celebrant from refusing to solemnise a same-sex marriage while allowing state and territory officers to refuse to solemnise a same-sex marriage.

Finally, let me pre-empt an excuse that may be given for opposing this amendment. Some left-leaning senators may argue that state and territory officers who refuse to solemnise a marriage for personal reasons would be breaching laws beyond the Marriage Act so we do not need to rule out such refusals in the Marriage Act. But it's far from clear that any other law would be breached. For instance, state and territory officers who refuse to solemnise a marriage would not be breaching the Commonwealth Sex Discrimination Act in its current form. Through its use of the word 'may', the Marriage Act provides a discretion to state and territory officers. Using that discretion would seem to be in direct compliance with the Marriage Act, and acts done in direct compliance with the Marriage Act currently enjoy an exemption from the Sex Discrimination Act.

It is true that Senator Smith's bill is winding back the exemption from the Sex Discrimination Act. There will no longer be an explicit exemption of acts done in direct compliance with the Marriage Act, but there is no provision in either act giving the Sex Discrimination Act precedence over the Marriage Act, so, if a state or territory officer refuses to solemnise a marriage, it would be a lawyers' picnic trying to work out if that was legal. The responsible course is to amend the Marriage Act so that state and territory officers cannot refuse to perform their duties. I suspect that left-leaning opponents of this amendment know that this would be the responsible course, but their current siege mentality means that they will say no to all amendments, even from supporters of the legalisation of same-sex marriage like me. This is a dereliction of duty. I commend my amendment to the House.

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

There is no siege mentality, Senator Leyonhjelm, although it's a very flamboyant set of words there. I think we have taken a sensible approach to a bill that has gone through a cross-party process. We have also taken the principled position that we want to deliver marriage equality within the context of Australia's existing antidiscrimination laws. That has been a consistent position, whether it's in relation to Senator Fawcett's amendments, Senator Hanson's amendments or your amendments.

In relation to amendment (1), which I think is the only amendment at this stage you are speaking to and which you've moved, I want to thank you for the constructive way in which you've sought to deal with these amendments. We note your rationale for its introduction. It's an amendment which seeks to explicitly prevent authorised officers under state and territory law from refusing to solemnise marriages. You were right to pre-empt the proposition I'm about to make. We are of the view, and we have a different legal view about the interaction of the two laws, that the existing protections under the Sex Discrimination Act provide sufficient protection against discrimination in such cases. There are obviously substantive protections in the Sex Discrimination Act, and it is our view that the provision of the Marriage Act to which you've referred does not derogate from those. If we are wrong in that, obviously that will be something that can be considered down the track. For that reason, Labor will not be supporting this amendment.

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

The question is that Liberal Democrat Party amendment (1), on sheet 8321 revised, be agreed to.

A division having been called and the bells being rung—

The CHAIR: Senator Bernardi, on a point of order?

I do note that the person who called the division is no longer present in the chamber, and I wonder whether the division stands, or the request for it, given those circumstances?

The CHAIR: Senator Bernardi, I'm informed that Senator Leyonhjelm called for the division.

I was in the chair, Madam Chair, and the voices I heard did not include Senator Leyonhjelm's.

The CHAIR: I remind senators that when divisions are called for, the people who call divisions need to remain in the chamber. Thank you, Senator Bernardi.

The committee divided. [11:02]

(The Chair—Senator Lines)

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

(In division) This is about upholding the standing orders. You've just made a ruling that those who call a division need to remain in the chamber. That's what you've just said. I'm telling you that the voices that called for the division are not here in the chamber. So, does the division stand or not?

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

I rise on a point of order. Standing order 100(2) states very clearly:

A senator calling for a division shall not leave the chamber until the division has taken place.

I didn't see who called the division, but Senator Bernardi was in the chair. If that senator has left, I'd ask you to consider, and perhaps take advice, as to whether the division should proceed.

The CHAIR: Senator Leyonhjelm, on the same point of order?

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

On the point of order: Senator Bernardi was in the chair, at the other end of the chamber from me. There were several voices calling for it, including Senator Anning's.

The CHAIR: Thank you. I believe that we have met the two required voices, Senator Bernardi.

() (): I move item 2 on sheet 8321 revised, standing in my name:

(2) Schedule 1, page 11 (line 20), after item 47A, insert:

47AA Authorised celebrants (other than State and Territory officers) not bound to solemnise marriages etc.

Subject to subsection 39(4), nothing in this Part:

(a) imposes an obligation on an authorised celebrant to solemnise any marriage, or

(b) prevents such an authorised celebrant from making it a condition of his or her solemnising a marriage that:

  (i) longer notice of intention to marry than that required by this Act is given; or

  (ii) requirements additional to those provided by this Act are observed.

[authorised celebrants (other than State and Territory officers)]

This amendment extends the freedom to refuse to solemnise a marriage to all civil celebrants who are not state government employees. This similar amendment has been moved a couple of times previously. I know that senators have voted against that, but, because mine is the best way of achieving this, I know you are waiting to vote for my amendment. This is a freedom currently enjoyed by ministers of religion. Senator Smith's bill before us today only proposes to extend this freedom to religious celebrants.

Let me outline two arguments for my amendment that should appeal to left-leaning supporters of legalising same-sex marriage. Firstly, religion should not be afforded a privileged place in a secular state. As I have said previously on Senator Hanson's version of this amendment, people who are not religious still have convictions and they still have freedom of conscience, as much as people who are religious. People who are not religious should not be treated as second-class citizens.

Secondly, if we fail to extend the freedom to refuse to solemnise a marriage to all non-government celebrants, we will be left in a situation where celebrants who only want to solemnise straight marriages can do so under the cover of religion but celebrants who only want to solemnise same-sex marriages will not be able to do this as there is no religious cover for such a decision. We will be hurting the gay community. For left-leaning senators still planning to vote against my amendment, even though voting in this way would represent an unequal treatment between religious and non-religious celebrants, please do not use the dubious excuse that the Constitution requires special treatment of religious celebrants. The Marriage Act need not have any reference to religion, just as occupational licensing laws have no special category for religious architects, religious financial planners or religious mechanics. In fact, such an approach would have a sound constitutional basis, given that section 116 states that no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

If certain senators do not want any celebrant recognised by the state to be able to discriminate, they should have the courage to put forward amendments that would make this the law. The substance of my amendment aligns with the substance of One Nation's amendment which we previously considered and is similar to the Attorney-General's amendment of yesterday which we also considered. I didn't mind which one got up, but, since neither of those two have got up so far, I am proceeding with mine.

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

The Labor Party will not be supporting this amendment, consistent with our position in relation to other similar amendments. The bill before the chamber already permits ministers of religion and the new category of religious marriage celebrant not to be required to solemnise a same-sex marriage if it offends their religious beliefs. We have accepted this as a reasonable protection of religious freedom. The amendment goes further than the protection that was considered by the select committee and included in the legislation. In fact, my recollection—although others might have a more direct recollection—is that this proposal was expressly rejected by the Senate committee.

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

This is intended, as I understand it, to ensure that the protection in section 47 of the Marriage Act currently covering religious celebrants is extended to all celebrants. That was the substance and effect of the second amendment that I moved last night. For the reasons I explained last night, which were also explained by Senator Leyonhjelm in his contribution a few moments ago, I agree with the principle. If it is right in law to allow a conscientious exemption for celebrants on religious grounds, then I do not believe that it is right to deny a conscientious exemption for other celebrants, whose conscientious objection may be on grounds other than religious faith. In a country where more than a quarter of people say that they do not have a religious faith, it seems to me, frankly, absurd to say we should respect the conscience of the three-quarters of the population who are religious but not respect the conscience of the quarter or so of the population who do not profess a religious faith.

As I say—and I expanded at greater length on the point last night and I won't delay the Senate by doing so again—I agree with what Senator Leyonhjelm is trying to achieve here, but for one thing. Senator Leyonhjelm, by proposed paragraph (b)(ii) of your amendment, nothing would prevent an authorised celebrant from making it a condition of his or her solemnising a marriage that requirements additional to those provided by this act are observed. Unfortunately, that requirement is expressed in unlimited terms. If your proposed amendment were to operate according to its terms, nothing could prevent, for example, a civil celebrant from making it a condition for solemnising a marriage that the couple who wish to be married acquired a good or service from a company associated with the celebrant, for example. Now, I don't think that's your intention, Senator Leyonhjelm, from what I've heard you say, but that's the effect of your amendment. In other words, it goes beyond conscientious grounds of objection. If proposed paragraph (b)(ii) were not part of your amendment, I could agree with it and I would agree with it, but because of the open-ended and unlimited nature of proposed paragraph (b)(ii) of your proposed new section, I cannot do so.

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

The Greens also won't be supporting these amendments, and it's on two grounds. One is the principle that civil celebrants who are performing the solemnising of marriages according to the laws of the state should not be able to discriminate against LGBTIQ people. They are there to solemnise weddings according to the laws of the land. There is no justification for those civil celebrants to be able to discriminate. That's the first reason. The second one is on being able to discriminate on the basis of conscientious as well as religious beliefs. We will go into that a bit further when we debate the amendments that I am going to propose shortly.

In one way I have some level of agreement with Senator Leyonhjelm. We don't think people should be able to discriminate on the basis of their individual beliefs. Our current antidiscrimination law allows for exemptions based on religious organisations and on the tenets and doctrines of a religion, not on an individual's religious beliefs. So we absolutely don't think it would be appropriate to extend that—not just to be able to discriminate on the basis of religious beliefs but to extend it on the basis of people's conscientious beliefs. To be able to do that would be expanding our antidiscrimination law exponentially to allow the grounds on which people could discriminate against other people.

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

Senator Leyonhjelm's very eloquent appeal to left-wing senators won me over. I can indicate support for his amendment, but might I respectfully suggest, having listened to the Attorney's comments in relation to this, that when the vote is put, if that is necessary, that the amendment be put in two parts? I think that 47AA(a) would cover the field in any event. I would be happy, and I think the Attorney as well, to vote for that, without the need for proposed paragraph (b).

I take the Attorney's point that requirements additional to those provided by this bill would, for example, mean: I will celebrate your marriage if you use my florist, from whom I get a kickback, and the baker and the reception centre et cetera. So I was thinking of inserting an amendment: 'requirements other than of a commercial nature'. But, on reflecting more, just 'imposes an obligation on an authorised celebrant to solemnise any marriage' is not bound. I think that covers the field, without going into the suggested detail. So that would be my respectful suggestion, unless Senator Leyonhjelm were minded before the vote to seek to amend his amendment (2) by deleting the letter (a) and then proposed paragraph (b) in its entirety.

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

In response to the question to the chair, there is only one amendment before the chamber; therefore, it's not possible to separate elements of that amendment. It would require an amendment to the amendment to be put. We can assist you with some language on that, if you would like to do that.

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

I was of the view that, if a proposition were before the Senate and there were elements of it where senators would vote in a different way, the question in fact could be split. So could I have some guidance on that?

The TEMPORARY CHAIR: The question is that amendment (2) be agreed to. It is the question which the chamber will be confronted with. Do you wish to seek to amend the amendment?

Before we get bogged down in the detail—I know what the question before the chamber is, but I was of the view, rightly or wrongly, that, if there was a proposition being put that had a number of components to it, any senator who might want to vote differently could ask for the question to be split. But all this might be a very academic argument in the event that Senator Leyonhjelm is prepared to delete paragraph (b) of his proposal; one assumes the Senate would give leave to that if he were so minded.

The TEMPORARY CHAIR: We should hear from Senator Leyonhjelm on that point before we respond to your point. It's not a divisible amendment otherwise.

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

This section is, I think, applicable already to religious celebrants. I'm mindful that the Catholic Church and other religions—various churches—that place various conditions on those who want to be married in their churches. I think that was just carried across. But it is fairly obvious that Senator Brandis's comments are influential, and I don't feel particularly strongly about retaining section (b). If there is provision in the procedure to delete section (b), as I'm the mover of the amendment, I would be happy to seek leave for my amendment to be amended to delete 47AA(b) and to vote on it accordingly.

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

At the risk of being a pedant, Senator Leyonhjelm, if you do that, you'll want to remove both the colon after the word 'part' on the first line and subparagraph (a), replace the comma after the word 'marriage' on the second line with a full stop and omit the word 'or'.

The TEMPORARY CHAIR: Thank you, Attorney-General; they're technical changes that will accompany the intent of the amendment.

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

I note those changes, Senator Brandis, and I trust your judgement on them entirely.

Leave granted.

The CHAIR: The question is that Senator Leyonhjelm's amendment (2) on sheet 8321 revised, as amended by leave, be agreed to.

The committee divided. [11:26]

(The Chair—Senator Lines)

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

I move amendment (3) on sheet 8321 revised standing in my name:

(3) Schedule 1, Part 2, page 17 (lines 1 to 29), omit the Part, substitute:

Part 2—Amendment of the Sex Discrimination Act 1984

Sex Discrimination Act 1984

63 After section 38

Insert:

38A Marriage

Nothing in Division 1 or 2, other than section 26, renders it unlawful for a person to discriminate against another person on the ground of the other person's sexual orientation, gender identity, intersex status, marital or relationship status in the course of providing, or offering to provide, goods, services or facilities for, or in connection with:

(a) the solemnisation of a marriage under the Marriage Act 1961; or

(b) the preparation for, or celebration of, such a marriage; or

(c) the preparation for, or celebration of, events associated with such a marriage, including:

  (i) an event announcing or celebrating the engagement of the parties to be married; and

  (ii) an event celebrating the anniversary of the marriage.

[allowing non -government discrimination regarding marriage]

This amendment does three things. First, the amendment preserves the existing exemption from the Sex Discrimination Act for anything done by a person in direct compliance with the Marriage Act 1961—this is subsection 40(2A) of the Sex Discrimination Act. My amendment does this by opposing Senator Smith's bill's repeal of this existing exemption.

Secondly, my amendment rejects the replacement exemption proposed in Senator Smith's bill. The replacement exemption is narrower than the existing exemption. The replacement exemption would only cover refusals to solemnise. The existing exemption covers anything done in direct compliance with the Marriage Act. This includes, for instance, a decision to solemnise a marriage on the condition that a longer notice of intention to marry is given. The replacement exemption would only cover ministers of religion, religious marriage celebrants and chaplains in the Defence Force. The existing exemption covers any person. This could include someone assisting a minister of religion, a religious marriage celebrant or a chaplain in the Defence Force. Senator Smith's bill clearly narrows the exemption from the Sex Discrimination Act. Such a winding back of protections was not in the question that was put to Australian voters. It is not what they voted for. In fact, voters were told there would be no winding back of protections, and whenever an extension of protections has been proposed in this debate it has been voted down on the grounds that this bill should not deal with matters beyond the Marriage Act. If you do not want the existing exemption from the Sex Discrimination Act to be wound back, you need to support my amendment. Currently, there is no other amendment that prevents this winding back of the existing exemption.

However, at the outset I mentioned that my amendment does three things. The third thing it does is insert a new, broad exemption from the Sex Discrimination Act that would cover the same things as the existing exemption but go well beyond that. The new exemption would cover discrimination by any person in the course of providing or offering to provide goods, services or facilities for or in connection with a marriage. This covers a wedding as well as events celebrating an engagement or anniversary. This new exemption does not cover section 26 of the Sex Discrimination Act. Section 26 states that:

It is unlawful for a person who performs any function … under a Commonwealth law or for the purposes of a Commonwealth program … to discriminate … on the ground of … sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding …

As such, my amendment allows people to discriminate in the private sphere but does not allow discrimination by the government which represents us all. I do not argue that there are a significant number of bakers or florists who are inclined to refuse to service a same-sex marriage—indeed, I do not know if there are any—but it is not the role of the government to dictate to such people who they must do business with. I note also that refusing to service a same-sex marriage would be an odd business decision and may well prompt other consumers to boycott that business, which they're free to do.

My amendment may be more relevant to people whose line of work exclusively relates to marriages, such as wedding planners. It could be that people will want to specialise in servicing same-sex marriages. It could even be that the number of people wanting to specialise in servicing same-sex marriages could exceed the number of people wanting to specialise in servicing straight marriages. My amendment does not trample on state rights. If people see issues with state discrimination law, the appropriate forum to address this is the relevant state's parliament. My amendment does not allow discrimination by the Commonwealth. Government represents us all, and the job of public servants is to serve everyone. My amendment allows, in a limited way, individuals to discriminate in the private sphere. This will assist people specialising in servicing same-sex marriages as much as it will assist opponents of same-sex marriage. My amendment is modest, and I commend it to the Senate.

The CHAIR: I remind senators, once again, that advisers are not to be on the floor of the Senate.

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

I will be opposing this amendment in particular because of the third of the observations made by Senator Leyonhjelm, relating to the introduction of a new section 38A into the Sex Discrimination Act. This is the so-called bakers and florists amendment. It seems to me to be, in a sense, almost an academic argument—like the search for the bunyip, the search for the homophobic florist goes relentlessly and unavailingly on. Honourable senators have heard my position in relation to conscientious objection. For reasons I explained before, I believe that those who officiate in a marriage ceremony, whether they be religious celebrants or civil celebrants, ought to have the benefit of a conscientious objection—that matter has now been resolved against my view—but I do not believe that a right of conscientious objection can sensibly go beyond the act of officiating at the ceremony itself.

What Senator Leyonhjelm's amendment would essentially say to commercial goods or service providers—bakers, florists, wedding caterers; anyone from whom a commercial good or service may be purchased—is that you are free to discriminate against people on the basis of their sexuality and specifically you are free to discriminate against people in relation to the fact that they are entering into a ceremony of same-sex marriage. In my view, there is no justification for extending conscientious objection purely to a commercial relationship. I know, and Senator Abetz and I were discussing this a moment ago, there have been some cases in America where the Supreme Court has held that a commercial relationship may be protected, but that's because of the jurisprudence of the First Amendment. It is nothing to do with Australian law. If you say that any commercial service provider, any vendor of a good, is able to discriminate against people because they are conducting a same-sex marriage, then you are striking at the heart of the very principle that this bill seeks to establish—that is, the equality of people of the same sex in relation to marriage with people of opposite sex.

I respect Senator Leyonhjelm's libertarian principles. This amendment reflects a pure, almost absolutist libertarian point of view which would, taken to its extreme, see the repeal of all antidiscrimination law. Plainly the parliament does not want to do that, and it ought not to do that. In the balancing of rights, the idea that we should not protect categories of people from discrimination is I think an extreme position. We should protect people from discrimination, as the Sex Discrimination Act does, and, given the will of the parliament to amend the law to allow same-sex couples to marry is evident, then there is absolutely no reason, in my view, why antidiscrimination law should not apply to same-sex couples as it does to other protected categories. As I said in a television interview the other day, under the existing law it is unlawful to refuse to sell a good or a service to a person because they are gay, and if it's wrong to refuse to sell a good or service to a person because they are gay then it cannot be right to refuse to sell that same good or service to two people because they are gay. So, Senator Leyonhjelm, I understand where you're coming from. At least there is a certain crystalline purity about Senator Leyonhjelm's absolute positions. But this is not a position I would wish to adopt. It does attack, really, the heart of what the parliament is seeking to achieve here, and for that reason I will be opposing the amendment and I would urge other senators to do likewise.

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

This amendment would wind back hard-fought protections against discrimination, and Australians have voted to prevent discrimination under Australian law in voting for marriage equality. Labor will not be supporting this amendment.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

It was very interesting to listen to the comments of the Attorney-General, Senator Brandis, with regard to discrimination: 'We should protect people against discrimination.' Let me take you back to section 51(xxvi) of the Australian Constitution, which says, 'the people of any race for whom it is deemed necessary to make special laws'. This in itself is discrimination, because we do have laws in Australia that state that people of a certain race will get special benefits—and it is the Aboriginal and Torres Strait Islander people—in health services, housing, jobs and education. There is a difference, and there is discrimination.

When the people of Australia had the vote on this plebiscite, the question was: do you agree with same-sex marriage? The people agreed to it. We are debating this whole issue in this chamber now. Having the plebiscite before we debated this legislation was putting the cart before the horse in the eyes of the Australian people. They had no understanding of the impact it would have on them.

What we are asking here is for people not to be discriminated against based on their views and their opinions of what they want to do. If they have a conscientious objection to marrying those of the same sex or a religious obligation due to their beliefs, why is that such an issue? Why can't there be tolerance in this chamber from both sides? The people have decided they are not against same-sex marriage. They have voted for that. But, with this amendment, you are taking away the rights of the Australian people. This is about thought police; this is about control. The sex discrimination laws are in place, but you are not allowing people to have the right of a conscientious vote here, and there is going to be, time and time again, a lot of litigation against these people. So there is discrimination, and it's in our Constitution. It's happening every day in our lives. So don't reflect on it in what is being debated here today. I'm just reflecting that we should have a look at our own Constitution.

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

The Greens will be opposing this amendment. This amendment would result in an absolute explosion of discrimination against LGBTI people, and it's exactly the opposite of why we are here. We are here to be debating marriage equality. We are here to be removing discrimination against lesbian, gay, bisexual, transgender, intersex and queer people, not to be introducing amendments and changes to the act that would result in a massive increase in discrimination.

Fraser Anning (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

This is not my first speech. I rise to speak to amendment (3) moved by the Liberal Democrats to the Marriage Amendment (Definition and Religious Freedoms) Bill 2017. I have already foreshadowed that I will be voting against the bill which this amendment would alter. As I previously indicated to the Senate, I strongly believe marriage is a sacred union of a man and a woman for the purpose of having children. Because of this, I oppose a change to the definition of this institution to allow the solemnising of same-sex unions to be called 'marriage'. However, in anticipation that the marriage amendment bill will pass anyway, I rise to support this very necessary amendment by Senator Leyonhjelm.

As the marriage amendment bill stands, apart from its questionable merits as a radical social change, same-sex marriage risks being a Trojan horse for yet another wave of political correctness. Without this amendment, once the bill is passed, those who object to participating in same-sex marriage activities will face the full force of the Sex Discrimination Act. The fact is that, if we really valued personal freedom in this country, we wouldn't have the Sex Discrimination Act or the Racial Discrimination Act at all. However, if anything can be done to stop yet another restriction on freedom and choice being imposed by these acts, we should grab the opportunity with both hands.

The purpose of the same-sex marriage bill does, of course, contain limited provisions to prevent ministers of religion being forced to solemnise same-sex unions against their religious beliefs. This, at least, is mildly reassuring. However, no protection is afforded to those who simply have a conscientious objection to participating in same-sex marriage activities. Australians who object need to be protected from the sex discrimination commissars and same-sex marriage extremists. We know from past experience that these radicals will seek to use legal recognition of same-sex marriage as a way to try to force others to validate their personal lifestyle choices. This has happened overseas. For instance, a cake maker in Colorado who refused to make a wedding cake for a same-sex couple ended up before the Supreme Court. A 72-year-old florist who declined to provide flowers for a same-sex wedding was found to have violated Washington state antidiscrimination laws. The owners of a farm in upstate New York who didn't want a lesbian couple married on their family-friendly property were fined $13,000 after the state legalised same-sex marriage in 2012.

We need to make sure that this kind of politically correct oppression does not occur here. As an independent-minded Aussie, your conscientious objection to participating in solemnising same-sex marriage should not require you to take holy orders in order to avoid being hauled in front of the courts. Senator Leyonhjelm's amendment will exempt objection to involvement in same-sex marriage celebrations from the Sex Discrimination Act. This will give protection not only for civil celebrants but also for the cake makers, florists and venue operators who may not want their services or venues to be used for these purposes. As a former publican myself, I particularly appreciate this. It is one thing to pass a law to allow consenting adults to solemnise their relationships, but it is quite another to pass a law to force the rest of us to be solemnised as well.

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

I will make a brief contribution to this debate. I acknowledge that it is a vexed question, and I think that this issue may well be one of those issues that could be provided to the Ruddock committee—for want of a better term or description—to consider in detail. If I may, I might take issue with what the Attorney said when he referred to a homophobic florist. The celebrated case in the United States was of a florist that had continuously served a homosexual individual without any difficulties whatsoever. It was only once the florist was asked, 'Would you provide flowers for our wedding?' that the florist said, 'I cannot be engaged in that particular activity.' So, with great respect to the Attorney, what we have there is a very clear delineation between nonservices because of an attribute as opposed to nonservice because of an activity. Saying to somebody, 'I'm not going to serve you because of your particular attribute,' is something to which a tolerant, diverse society would hopefully respond, 'Well, that's not up to muster.' But to say to somebody, 'Because you are engaged in the provision of flowers to the community at large, you will then have to assist in the celebration of an activity that you conscientiously disagree with,' is a matter that, I confess, I grapple with. If we do allow the civil celebrant—or, indeed, it should be an 'authorised celebrant', but we've been there and done that—or a marriage celebrant to say, and I believe this is a right that they should have, 'Yes, I am a marriage celebrant but, because of my conscientious belief as to what marriage is, I cannot assist you on this occasion,' then why not also extend that to, if I might say, very respectfully, the non-homophobic florist or any other service provider?

However, I do accept and understand that there are some vexed issues here. I think most people know that, when it comes to these matters, I usually seek to make a determination one way or the other. But, on this very rare occasion, I and, I suspect, some of my colleagues will actually be abstaining on this because we understand both sides of the argument. But I did want to get to my feet just to make the, I think, very valid and important distinction between saying to somebody, 'I'm not going to serve you because of your attribute,' as opposed to saying, 'Sorry, I cannot be of assistance because of the activity that I will, in fact, be assisting with on this particular occasion.'

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

I've heard it said that it's hazardous to answer rhetorical questions but I'm going to try and answer Senator Abetz's rhetorical question: what is the difference? The difference, in my view, Senator Abetz, through you, Madam Chairman, is this: I believe there ought to have been a conscientious objection or ground of exemption for celebrants for the same reason that there is a conscientious exemption for ministers of religion. I believe it is wrong to force a person to officiate in a ceremony the nature of which violates their conscientious beliefs, whether those beliefs be the product of the teachings of a religion or whether those conscientious beliefs arise from other considerations.

But when it comes to purely commercial or transactional relationships, the matter is entirely different. A gay couple are not asking a service provider or the vendor of goods to participate in or to officiate their ceremony. All they are seeking to do is to purchase an article of commerce. If the only relationship between the ceremony and the third party is purely commercial then, in my view, there is no conscientious reason why the commercial good or service provider should fall within a conscientious exemption.

The CHAIR: The question is that amendment (3) on sheet 8321 revised, as moved by Senator Leyonhjelm, be agreed to.

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

by leave—I move amendments (1) to (4), (6) to (7) and (9) to (12) on sheet 8299:

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

(2) Schedule 1, item 1, page 4 (lines 12 to 14), omit all the words from and including "their religion" to the end of paragraph 2A(b), substitute "their religion or the views of their religious community; and".

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

5A Section 6

Omit "This", substitute "(1) This".

5B At the end of section 6

     Add:

     (2) This Act is not intended to exclude or limit the operation of a State or Territory law dealing with anti-discrimination, to the extent that that law is capable of operating concurrently with this Act.

(4) Schedule 1, item 8, page 6 (line 21), omit "(1) The", substitute "The".

(6) Schedule 1, item 20, page 11 (lines 6 and 7), omit paragraph 47(3) (c).

(7) Schedule 1, item 21, page 11 (lines 15 to 17), omit subsection 47A(1), substitute:

Refusing to solemnise a marriage on the basis of religious beliefs

  (1) A religious marriage celebrant may refuse to solemnise a marriage despite anything in this Part if:

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

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

(9) Schedule 1, item 48, page 14 (lines 29 and 30), omit paragraph 81(2) (c).

(10) Schedule 1, item 63, page 17 (line 10), omit "47(3) (a), (b) or (c)", substitute "47(3) (a) or (b)".

(11) Schedule 1, item 63, page 17 (line 18), omit "the circumstances mentioned in subsection 47A(1)", substitute "any of the circumstances mentioned in paragraph 47A(1) (a) or (b)".

(12) Schedule 1, item 63, page 17 (line 23), omit "81(2) (a), (b) or (c)", substitute "81(2) (a) or (b)".

The Greens also oppose schedule 1 in the following terms:

(5) Schedule 1, item 8, page 7 (lines 1 to 17), subsection 39DD(2) (including the subheading) to be opposed.

(8) Schedule 1, item 21, page 11 (line 21) to page 12 (line 11), section 47B to be opposed.

I will talk to each of these amendments and then hopefully we'll be able to move through this fairly quickly so we can achieve the historic outcome that we are looking forward to achieving today.

The first ones that I want to talk about are about the issue that we have heard a lot about over the last two days, about civil celebrants and the role of civil celebrants. Our amendment here seeks to amend this legislation so that civil celebrants, including existing civil celebrants, would not be able to discriminate. I want to start by going back to our Senate inquiry and our exploration of the role of civil celebrants. What we found out during that Senate inquiry was that our current marriage law is very complex and mixed up. Particularly, the role of civil celebrants mixes up two quite separate groups of people. There are in that category the people that you think of as the ordinary civil celebrants that you go to in order to solemnise your marriage, but the category also includes ministers of religion from what are called the non-recognised or independent religions—they are not listed as recognised religions. These people are all sort of lumped in currently in the 'civil celebrant' category.

One of the really important recommendations we developed as part of the Senate inquiry earlier this year was to say, 'Let us create this category called "religious marriage celebrants".' It was primarily for these independent ministers of religion, so that they could be identified as being separate from the ordinary individual civil celebrants and so that people would know that these religious marriage celebrants would be solemnising marriages on a religious basis. As I said, that category was created primarily so that people who are independent ministers, ministers of non-recognised religions, could be religious marriage celebrants.

That then left the people whom you think of when you think of individual marriage celebrants. What we considered was: what should be their role? If those civil celebrants have particular religious beliefs or conscientious beliefs, particularly over the solemnising of equal marriages, should they have the right to decide that they don't want to do that? After hearing lots of evidence from across the spectrum—we heard from religious organisations, from academics, from LGBTI advocates and from mental health advocates about what the impacts of discrimination were—we came down, as a group, with a consensus recommendation that we felt that civil celebrants should have to uphold the law of the land and should have to marry any couple who are capable of being married who come to them and ask to be married. In our consensus report, we said:

The committee considers that such celebrants perform a function on behalf of the state and should be required to uphold Commonwealth law (including anti-discrimination laws).

That, in a nutshell, is what this amendment seeks to do. It says: no ifs, no buts; civil celebrants should have to uphold the law, including our antidiscrimination law.

In practice, it removes from this bill what has been called the 'transitional' provision or the 'grandfathered' provision. What we have been told is that about three per cent of existing civil celebrants thought they had advised their civil celebrants associations that if marriage equality became a reality they would have difficulty solemnising same-sex marriages because of their religious beliefs. In the findings of our Senate inquiry, we thought: 'Okay, it's only a small number. If it is a situation that just those existing civil celebrants are allowed to discriminate, maybe that is the compromise position.' So those existing civil celebrants would be grandfathered and be able to identified as religious marriage celebrants. This was a compromise which we agreed to at the time on the basis that it was grandfathered and it was only going to be a small number of celebrants.

However, in the time since our Senate inquiry report came out, there has been a lot of discussion about this group of civil celebrants who would then be able to discriminate. In particular over the last two months, since Senator Smith's bill has been made available for people to look at, it has been identified particularly as a concern by many members of the LBGTIQ community and beyond. Importantly, it's because it does go against this principle that, if you are a civil celebrant solemnising marriages according to the law of the land, you should marry anybody who comes before you. You shouldn't be able to discriminate. So for that reason, after hearing from people, we thought: 'Yes, that's reason enough for us to decide that there is a principle at stake here. Civil celebrants shouldn't be able to discriminate.' Even though we've got this three per cent, we thought, 'They are there in their role as civil celebrants, solemnising marriages according to the law of the land, and that's what they need to do.'

There was a second reason why we were keen to put this amendment and it goes to the next lot of things I'm talking about—that is, this legislation says that those civil celebrants who opt to be identified as religious marriage celebrants would be able to choose to not solemnise a marriage on the basis of their individual religious beliefs. That, too, is a very substantial shift in our antidiscrimination law. Currently, when it comes to religion and antidiscrimination law, we give exemptions for religious organisations, and we give exemptions for religious beliefs that are based on the tenets, doctrines and beliefs of a religion, not on an individual's personal religious belief.

That goes to the second lot of amendments I am moving, which is on the issue of personal religious belief and whether people should be able to discriminate regardless of who they are—in fact, regardless of whether they are even a minister on the basis of personal religious belief. Putting this provision in makes a very significant difference from what our current antidiscrimination law allows. It means that, rather than having something that is on the basis of a religion, you are making a decision just on the basis of a person's personal beliefs. You are at the top of a very slippery slope there. We've already had the debate here, 'Well, if you're going to allow discrimination on the basis of a person's personal religious belief, what's the difference between that and a person's personal conscientious belief?' I agree, because where does the line get drawn? What is a religious belief? What's a conscientious belief? But if you're going to allow discrimination on the basis of someone's religious or conscientious belief, it basically allows anybody to say: 'Well, it's my conscientious belief that I don't want to marry you for whatever reason I want. That's my personal conscientious belief.' It is really a very substantial and very significant change to our antidiscrimination law. So it would be a new development, a new principle, that we don't think is warranted. It certainly isn't warranted before we go through the process, as I am hoping that we as a parliament do, of looking at the issue of religion both through the Ruddock process started up by the Prime Minister and through what I hope will be the process of developing our antidiscrimination laws into a much more comprehensive and coherent set of laws governed by a charter of rights.

The third group of amendments we're moving today involve the provision of goods and services. In this bill before the chamber, as it stands, there's a restatement of the exemptions for religious groups that are laid out in the Sex Discrimination Act. These exemptions give religious organisations a right of refusal in the provision of goods and services according to the doctrines, tenets and beliefs of their religion or the religious susceptibilities of their adherents. We don't think it is necessary to restate these provisions in the Sex Discrimination Act in this bill, because it has been pointed out that including these provisions in the marriage equality bill is explicitly targeting LGBTIQ marriages for discrimination. We don't need to do that. The provisions are already there in the Sex Discrimination Act; we don't need to put up in lights in the Marriage Act that, hey, marriages between same-sex people or gender diverse people are likely to be explicitly targeted for discrimination. It doesn't make a substantial change but it is a really important principle that we don't want to be flagging that LGBTIQ people are going to be explicitly discriminated against. So, it takes away that symbolic indicator of the intent to discriminate against LGBTIQ couples, it removes unnecessary duplication in the bill and it would potentially remove any future adverse legal implications of the section, because there has been some concern that by restating it in the bill there would be further discrimination acts beyond those already in the Sex Discrimination Act.

In the next amendment we propose to introduce an objects clause into the legislation to say how this legislation would interact with state and territory laws, because we've noted some concerns that have been raised about the consequences of this bill passing and whether it is going to impact on existing state and territory laws. We wanted to make sure that there wouldn't be any adverse impacts—that the state and territory laws as they currently stand would continue to have the power they had. This objects clause states that this changed law doesn't intend to limit or exclude the operation of a state or territory law dealing with antidiscrimination.

The final amendment in this package of amendments is a change to the title. The bill's current title refers to marriage equality and religious freedoms, but that is not what we're actually talking about today. This bill is coming from a huge desire in the community for equality—to achieve marriage equality. This bill is about broadening the institution of marriage and allowing same-sex-attracted and gender-diverse couples to get married. It's about marriage. Yes, it includes provisions to deal with religious sensibilities, but fundamentally it's about marriage. So, we're proposing to change the title to make it as simple as possible: it would just be the Marriage Amendment Act 2017. That would be much more appropriate and certainly it would much better reflect the view of the Australian community that what we are legislating for is about equality—marriage equality and LGBTIQ people being able to marry the person they love.

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

( I rise to urge senators to reject all of the Greens amendments because they do the extraordinary thing of watering down even the limited protections in the bill before us. These amendments reveal that all the platitudes the Greens have contributed to this debate so far about free speech are just that: they are platitudes. The Greens do not sincerely believe in free speech; they even think the very targeted and measured protections—limited protections, as they are—that are in the Smith bill go too far and should be watered down or removed, and that is an extraordinary admission that they're making with these amendments so far.

What particularly worries me about this is that we've seen in recent years in politics in this country that, if you want to know what the Labor Party's position on an issue is going to be in five years time, look at what the Greens' position on the issue today, because, as sure as night follows day, the Labor Party ultimately adopts the Greens' position. I'm sure Senator Di Natale would agree with me on that. The Greens have led the Labor Party by the nose on so many issues to so many of the points that they have eventually come to, and I don't doubt that there are members of the Labor Senate team today who would quite like to vote for some of these amendments that the Greens are proposing but will not do so, because, as we know, the Labor Party is only having a Claytons conscience vote, not a real conscience vote, on these issues.

What this shows is that, inevitably, when this law is passed, with the limited protections it has, it will be no time at all before other parties in the Senate, led by the Greens and eventually, I suspect, supported by Labor, will try and unpick, undermine and remove those protections. That means we will be returning to these issues after this bill has passed, in time to come, and those limited protections could be watered down or removed. I think the Senate should make a very strong statement about this today. We should vote as powerfully and as strongly as possible to indicate that is not the path we want to take and that is not the path we will be taking. I urge all senators to vote against 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

( The reason we're here today is that there are enough of us who were able to work together to get a consensus to have a bill ready, straight after the nation said yes, so we can get this done. This means that we've worked through issues like transitioning arrangements for civil celebrants and, indeed, affirming within the existing antidiscrimination law and within the Marriage Act the right of religions to practice their own doctrine within the way they practice marriage. For those reasons, Labor will not be supporting the Greens amendments today.

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

If anyone wanted a demonstration that this bill was sensible and balanced, this is it. I continue to argue that the bill that's before the chamber is an accurate reflection of the extensive work that was done through the Senate committee process. I argue that the religious protections and other elements of the bill are necessary and appropriate, and I won't be supporting these amendments.

The CHAIR: The question is that amendments (1) to (4), (6) and (7), and (9) to (12) on sheet 8299 be agreed to.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

We now move to the second part of that. The question is that subsection 39DD(2) in item (8) and section 47B in item (21) of schedule 1 stand as printed.

Question agreed to.

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

Madam Chair, as indicated to Senator Smith, I have a brief bracket of questions about his bill that I would like to put to him.

The CHAIR: Continue, please, Senator Abetz.

Thank you. I just want clarification that the bill that Senator Smith has put before the parliament in fact does not reflect the postal survey question, which was: should the law be changed to allow same-sex couples to marry? Is it correct that his bill takes this a lot further and potentially will allow—if we were to take the Australian sex survey, for example—33 different gender types to also marry?

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

My view has been, since 15 November, that the Australian people spoke clearly—I've used the word 'emphatically'—in calling for marriage equality to be incorporated into Australian laws. This bill does that. This bill accurately reflects the will of the Australian people, and it does one other thing: I think it sensibly, carefully and in a considered way also ensures that same-sex marriage laws are introduced and imported into Australia's legal architecture with suitable religious protections.

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

I do ask again—I would have thought it would be a relatively simple question to answer—whether the bill accurately reflects the question in the postal survey, which was, very simply: should the law be changed to allow same-sex couples to marry? Does your bill, in fact, extend that? I think that has been admitted in your explanatory memorandum, but I would like it on Hansard to have that issue confirmed.

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

There's nothing further to add to my answer to Senator Abetz's first question.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.