Kevin Andrews (Menzies, Liberal Party) Share this | Hansard source

I rise to speak on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017.

At the heart of this debate is a simple but profound question: what is the meaning and purpose of marriage? For the proponents of change, the answer is simple: it is about love and equality. But, for millions of others, the answer is different and more complex. For them, marriage is a union between a man and a woman. It is a natural institution upon which all other relationships are founded—the means of having and protecting children and forming communities and nations. For them, it is a pre-political institution, a natural arrangement that predates forms of government and for which the government only has an involvement in order to protect the people historically most vulnerable—namely, children. While elements of both meanings can be found in modern marriage, the latter group believes that the primary purpose is having and protecting children. Indeed, it is a view which has prevailed across civilisations and cultures for millennia. These different understandings of marriage will not be resolved by the passage of this bill. In fact, it has highlighted them.

For some people, the belief in the traditional meaning of marriage is an innate understanding. For some it is an appreciation of the natural law, for others a conscientiously held belief. However described, it goes to the core of universally recognised human rights. In December 1948, the international community gathered at the United Nations adopted the Universal Declaration of Human Rights. Confronted by the horrors of the Second World War and egregious breaches of human rights in many places, world leaders sought to enshrine standards of conduct that respected the inherent dignity and liberty of each human being. Led by the redoubtable Eleanor Roosevelt, the Human Rights Committee of the new organisation had worked for nearly two years to draft the declaration. Australia was a significant supporter of the creation of the United Nations and also the universal declaration. Central to the declaration is the bold assertion that:

… human beings shall enjoy freedom of speech and belief and freedom from fear and want …

which should be protected by rule of law. Article 18 of the declaration states:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

As the Harvard professor of law Mary Ann Glendon done points out in her masterful account of the creation of the declaration, A World Made New, article 18 was a major achievement of the Human Rights Committee.

Two decades later, the international community concluded a long process to transform the declaration into an international legal instrument. Hence, the International Covenant on Civil and Political Rights was drafted and adopted. Amongst the supporters, again, was Australia. The covenant expands article 18 of the declaration with three additional provisions. First, no-one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice; second, freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others; and, third, the nations that are signatories to the covenant 'undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions'. Australia is a signatory to that covenant but it has not been incorporated into our domestic law.

A number of observations can be made about the protection of religion and belief in Australia. First, there is an international definition and standard of freedom of religion and belief that Australia has long supported. Accordingly, there is an objective measure by which the adequacy or otherwise of protections in Australia can be measured. The standard in article 18 of the covenant has also been interpreted by the United Nations committee from time to time. But it's also clear that there is very little legal protection for freedom of religion and belief in Australia. This is consistent with the evidence from experts to the Joint Standing Committee on Foreign Affairs, Defence and Trade inquiry into the status of the human right to freedom of religion or belief that I currently chair and which released its interim report about freedom of religion in Australia just this week. Section 116 of the Australian Constitution is limited in its scope, according to these same experts, and does not provide the range of protections covered by the international covenant. Nor does it protect against states restricting religious freedom.

So, these considerations are pertinent to the current same-sex marriage debate. The Senator Smith bill contains very little protection for religion and belief. Indeed, it is limited to the conduct of the marriage ceremony. The range of protections envisaged by the international covenant is missing. To claim that there will not be a range of adverse consequences for the freedom of speech, religion and parental rights in the absence of laws envisaged in the covenant is wrong. A significant concern that millions of Australians have about these proposed changes to marriage laws is the manner in which the freedom of speech and religion is threatened. These concerns are harboured by many people who favour the change, not just by those who oppose it. Their concerns are not fanciful. Already there has been a series of events that bear out the fears. So a bishop is dragged before a tribunal for simply expounding Catholic beliefs. A company retreats from a Twitter storm because it was associated with a respectful debate between two members of parliament about same-sex marriage. A business executive is hounded by activists to resign from the board of a Christian education institution. A sports star is harangued for expressing the belief that marriage is between a man and a woman. A university is pressured about an academic who supports a Christian foundation—and this issue was argued in the name of diversity; a diversity that tolerates just one view. These and other instances have occurred while marriage is still legally defined in this country as being between a man and a woman.

For almost 70 years Australia has subscribed to the Universal Declaration of Human Rights, and for half a century to the International Covenant on Civil and Political Rights, including the important and significant rights to freedom of religion and belief. These are clear, universal and objective provisions that should be protected and, unless they are, proponents of the no case have good reason to assert that human rights in Australia will be diminished as a consequence of the passage of this bill. The great irony of this debate is that the proponents of change are claiming a right to marry which is not recognised in international legal human rights jurisprudence while denying on the other hand the rights of conscience and belief that are clearly stated and subscribed to.

So the bottom line is this: Australians who believe that marriage is and will always be a union of a man and a woman should be free to profess and manifest that belief and not face the possibility of being hauled before a tribunal. Charities which operate on this understanding should not face the prospect of their charitable status being repealed. Schools founded on this principle should not be threatened with deregistration. And celebrants who subscribe to the traditional understanding of marriage should not be forced to participate in a wedding contrary to their beliefs.

This is a conscience debate. Accordingly, it would be strange if members were to ignore or abandon their conscience in coming to a decision on how to vote. Sir Thomas More once said,

… when statesmen forsake their own private conscience for the sake of their public duties … they lead their country by a short route to chaos.

In coming to a decision I am mindful that 47 per cent of my constituents and 57 per cent of those who voted supported a change. But I'm also mindful that many, including those who supported change, want to see the protection of conscience and belief in this bill. It is for these reasons that I will support the proposed amendments to uphold and protect freedom of conscience and belief. It's not my desire to stand in the way of the view expressed by the majority of those who voted in the survey, but I want to ensure that this bill promotes, rather than undermines, freedom of conscience and belief.

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