Chris Hayes (Fowler, Australian Labor Party) Share this | Hansard source

I also wish to make a contribution on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017. When same-sex marriage was last debated in this place, in 2012, as the result of a private member's bill, I opposed the measure in support of retaining the traditional definition of marriage. From the outset, I should declare that I am a Catholic. I grew up in a religious household, which probably accounts for some measure of my social conservativism. I also felt it was better for children to grow up with a mother and father. However, as a longstanding member of parliament, I'm only too familiar with the levels of domestic violence, child abuse and neglect that are occurring in some of our nuclear families. I've certainly refined my views in this regard and now believe that children simply need unconditional love, care and support from parents, and to live in a safe environment.

Having said that, I consider the situation before the House today markedly different to when we last debated same-sex marriage in 2012. Given the efforts to establish a national consensus and now having the result of the nationwide survey, the question of same-sex marriage has effectively been taken out of the hands of parliamentarians. Therefore, as I see it, our obligation is to bring about the legislative measures necessary to give effect to the expressed will of the Australian people.

The simple fact is that the Australian people overwhelmingly decided in favour of marriage equality. Prior to the national survey I publicly stated that, despite my personal views in favour of the retention of the traditional definition of marriage, should the nationwide survey on same-sex marriage result in a 'yes' vote I would not frustrate or delay the passage of the legislation to give effect to the nation's decision. The same-sex marriage survey was commissioned as a national exercise to produce a national result. Now, while I voted no—as, I hasten to add, did the majority of my electorate—I believe it would be hypocritical and disingenuous to have participated in that democratic process and then not accept the outcome.

For me, the debate is no longer about whether the definition of marriage should be amended to allow same-sex marriage but rather the manner now in which we should move forward. We must ensure that the issue of same-sex marriage is dealt with effectively, whilst making provisions for appropriate safeguards. In saying that, I find the title of this bill a little misleading—particularly its reference to religious freedom. From my reading, that's certainly not the purpose or the actual design of the amendment to the federal Marriage Act. It is appropriate that we have a respectful discussion, first to identify the religious freedoms that may be impacted by the introduction of same-sex marriage and then to determine the level of protection required in the context of Australia's legal framework.

Echoing some common ground in this regard, Anna Brown, the Director of Legal Advocacy of the Human Rights Law Centre, and more recently spokeswoman for the Equality Campaign, indicated that she believed religious freedom should be protected in law. A similar view was also expressed by the United Nations Human Rights Committee, who, in their concluding observations on Australia, expressed concern about the lack of direct protection against discrimination on the basis of religion at a federal level.

I appreciate the fears held by various religious institutions that enacting same-sex marriage could impact on religious freedoms, particularly in respect of the teaching of doctrine and the functioning of various faith based organisations, including schools and aged care and those responsible for the provision of welfare. While the issue of same-sex marriage has placed a particular focus on religious liberty, we should be clear that this legislation before us is but one area of federal law that could impinge on religious freedom. Nevertheless, I regard these as legitimate concerns and matters that need to be addressed in order that our laws do not unintentionally act to violate one's genuinely held beliefs.

Unlike the United States, the United Kingdom, New Zealand and Canada, which have already recognised same-sex marriage, we do not have a bill of rights, which in those countries accords a measure of protection to the rights of freedom of belief, freedom of conscience and freedom of religion. Now, I'm certainly not advocating for a bill of rights, but I do consider it far from ideal that religious freedom in this country is solely protected by exemptions and exceptions in various state and federal antidiscrimination laws.

I note that freedom of religion is specifically provided for in article 18 of the International Covenant on Civil and Political Rights. The covenant is an international legal instrument to which Australia is a signatory and effectively defines many of those rights and privileges that reflect our democratic values. However, to date, we have not attempted to introduce the tenets of article 18 into Australia's domestic law. I do think this is an area that warrants some further consideration.

Nevertheless, it's important that any legislative protection for religious freedom only places limitations that are reasonable, necessary and proportionate. I'm convinced it would not be prudent to attempt to address the complex matters of religious freedom solely in the context of this bill, other than addressing those matters directly relating to the actual performance of marriage ceremonies. This bill should not be a legislative attempt to cover the field or an opportunity to use religious freedom as a means to frustrate the passage of this legislation. Father Frank Brennan, the CEO of Catholic Social Services and a prominent human rights lawyer, alluded to this when he said:

The Marriage Act amendments need to include adequate protection for freedom of religion in the conduct of marriage ceremonies. Other issues of religious freedom should be dealt with by the tweaking of existing legislation …

However, he did go on to say that we may need to specifically address issues of religious freedom in federal legislation and possibly reflect the protections that currently exist in both Victorian and ACT legislation.

I believe we will need to address the shortfalls in Australia's legal architecture to provide specific protection for religious freedom. However, this is a complex area requiring detailed consideration, and therefore I'm pleased with the establishment of the expert panel led by Philip Ruddock to examine the human right to religious freedom and to do that exercise independent of the marriage amendment bill. I would expect that those with a genuine interest in religious freedom, and not simply as a means to frustrate the passage of legislation, will engage with the expert panel during their deliberation. I note that the expert panel are required to report back on 31 March next year. Therefore, I think the responsible course is to await their recommendations before attempting to legislatively address the issue of religious freedom.

If we are to respect the will of the Australian people, I believe it is important that we separate the complex questions of religious freedom from the issue of marriage equality. Fiona McLeod, the President of the Law Council of Australia, emphasised this point when she said:

Australians were not asked to vote on the complex intersection between religious freedom and anti-discrimination protection, so it is appropriate that any major changes are not bundled with amendments to the … Bill.

Nevertheless, I remain committed to working positively with the Ambrose Centre for Religious Liberty and those who hold a genuine interest in protecting religious freedom in this country. However, for the reasons that I have outlined, I support the passage of this bill, confident that it reflects the views of the overwhelming majority of Australians.

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