Graham Perrett (Moreton, Australian Labor Party) Share this | Hansard source

As a member of the Joint Standing Committee on Foreign Affairs, Defence and Trade, I rise to make a contribution on the interim report into the legal foundations of religious freedom in Australia. The Australia that I know and love is recognised as one of the world's most culturally, ethnically and religiously diverse societies. Despite our racist beginnings, modern Australia is a society founded on respect, acceptance and inclusion.

A valued part of this diversity is everyone's freedom to practise the religion of their choosing. It's something often erroneously held in irretrievable conflict with the legislation to allow same-sex marriage—the removal of discrimination from the Marriage Act. Australians have a proud history of removing discrimination in our laws. Our proud initiatives include providing the vote for women and repealing discriminatory migration policies or the recognition of the right of our first peoples to vote, although this took far too long to occur. Reducing discrimination in all its forms is a matter of social justice. Every human being is worthy of respect and equality before the law, regardless of their age, religion, race, gender, sexual orientation, occupation, level of income, ability or political beliefs.

It is indefensible and unjust that two people who love each other are unable to marry, because of their sexual orientation. This interim report evaluates and embraces the ability of everyone to enjoy religious freedom across many areas of society. A Senate select committee has already reported and considered the connection between same-sex marriage and religious freedom at length, including close examination of religious exemptions and exceptions. That particular report was the basis of the construction of the consensus bill being debated in the other chamber right now. I'm not speaking on that momentous legislation, because I do not want to delay change by 10 minutes more.

When reflecting on religious freedom and the report before us right now, it is timely for me to remind everyone that God did not write the Commonwealth Marriage Act. It was written by lawyers and legislators in ink, not etched in stone, and must reflect the views and values of Australians today. Every member of parliament is charged with ensuring our laws best balance and protect the values and beliefs of all the people we represent today, not yesterday and not tomorrow. Following the result of the postal survey, we know that Australians want discrimination removed from our Marriage Act. This can be done without impacting on the ability of everyone to freely observe their own faith, should they so wish.

Every person of faith in Moreton needs to know that discrimination on the basis of religious belief or activity is already prohibited in at least some circumstances in the Australian Capital Territory, the Northern Territory, Western Australia, Victoria and Queensland. I say that up-front. The detail of the legislation is different in each jurisdiction; however, discrimination on the basis of religion is generally prohibited with respect to employment, the provision of goods and services, accommodation, education, membership of clubs, participation in sporting activity and provision of government services. The Australian Constitution includes limited protection for religious freedom in section 116. It prohibits the Commonwealth from enacting legislation that would prohibit the free exercise or establishment of a religion. Australia is a signatory to the International Covenant on Civil and Political Rights, 1966, which was ratified in Australia on 13 August 1980. Article 18 of that convention gives specific protection to religious freedom.

The tension between the right of nondiscrimination and the religious freedom to discriminate in some cases was a common theme throughout many submissions made by the public. In fact, it was raised in the report of a committee I chaired in 2012, looking at the marriage legislation of Stephen Jones and Adam Bandt. While Moreton has fewer Christians than any other federal electorate in Queensland, I say directly to Moreton's Christians, Buddhists, Hindus, Muslims, Jews, Sikhs or people of any other religion that the passage of the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 will not affect the right of you or others to practise your faith or to raise your children in accordance with the teachings of your faith and it will not impact in any way on your religious scripture. This change in the legislation is about one thing only: removing discrimination from our Commonwealth Marriage Act.

Religious institutions already have the benefits of exemptions under antidiscrimination legislation. Those exemptions are limited, and the limitations have been tested in the courts. To dispel the misinformation, I refer firstly to the Cobaw case. The Cobaw case concerned the Victorian Equal Opportunity Act 2010. That legislation provides two exemptions for religious bodies or individuals. Firstly, anything done by a body established for religious purposes was exempt where it:

(a) conforms with the doctrines, beliefs or principles of the religion; or

(b) is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.

This is not dissimilar to the Queensland Anti-Discrimination Act 1991. Secondly, it exempted discriminatory acts that were necessary for the discriminator to comply with the person's genuine religious beliefs or principles.

The facts of Cobaw were as follows: in 2007, Christian Youth Camps operated the Phillip Island Adventure Resort. The Cobaw Community Health Service ran a state funded youth suicide prevention program for same-sex attracted youth called WayOut. Cobaw attempted to book the Phillip Island Adventure Resort for a camp for 60 same-sex attracted youth and 12 health workers. After the manager of Christian Youth Camps inquired as to the nature of the camp, he refused to allow the booking. That case first went to the Victorian Civil and Administrative Tribunal, with a finding that there was discrimination and the exemptions under the legislation did not apply.

On appeal, however, it was held that Christian Youth Camps was not a body established for religious purposes and could not avail itself of the exemptions under the legislation. It was further held that, even if it were a body established for religious purposes, the refusal of the booking was not necessary to avoid injury to the religious sensitivity of the adherents. The court was required to determine in that case whether the discrimination was based on the attribute of homosexuality. It was argued by Christian Youth Camps that the objections were due to an opposition not to homosexuality but to the syllabus of the camp in promoting homosexuality by telling the youths attending the camp that it was a natural and healthy human sexuality.

That argument was emphatically rejected by the court by way of a strong legal precedent. Judge Maxwell adopted the statement of the Administrative Tribunal, saying:

… an objection to telling a person (same-sex) sexual orientation is part of the range of normal, natural or healthy human sexualities is, in truth, an objection to (same-sex) sexual orientation. It denies same-sex attracted people the same rights to live as who they are, to express their sexual orientation in the manner they choose, and to gather with others of the same sexual orientation and those personally associated with them, to discuss matters of particular significance to them by reason of their sexual orientation, as heterosexuals enjoy.

It is interesting to note that a similar argument to that rejected by the court in Cobaw is being raised by members of the government this week. The member for Dawson said yesterday in his second reading contribution:

I've got to say that refusing service for a same-sex marriage is very, very different to refusing service to someone because they're gay. Refusing service to an individual because of who they are is very different to refusing service for a particular event which you might not be able to be part of because of your faith.

Christian Youth Camps sought special leave to appeal the Cobaw decision to the High Court. That special leave application was refused, with costs. Note this: the Cobaw decision demonstrates that religious institutions do have the benefits of exemptions from antidiscrimination laws to allow them to freely practise their religion, but the exemptions are balanced so that individuals are not discriminated against unless the discrimination is necessary for the practice of that religion.

Often cited is the Tasmanian archbishop case, where the Catholic Archbishop of Hobart, Julian Porteous, had a complaint lodged against him under the Tasmanian Anti-Discrimination Act. Archbishop Porteous produced a booklet outlining the Catholic church's teachings on marriage for distribution in Catholic schools. However, I do point out that the complaint was eventually withdrawn. Maybe the complainant saw that their case had no chance of success. There is no doubt that tensions exist between the protections from discrimination on one hand and religious freedoms on the other. Obviously there are many limbs to the work we do in government. We need to debate and pass legislation. What is happening in the other chamber right now is a change to the Marriage Act.

Another important part of my work in parliament is the work of committees like the one referred to in this report. They have a wider role, inquiring into matters referred to them and reporting on those inquiries. Committees look at the bigger picture. They take a wider view of the world, evidenced from lots of people. They see whether the balance has been achieved or whether change is needed. It is appropriate that this committee is looking at this issue now. It should give people some comfort, especially those of faith who have concerns about the changes to the Marriage Act being debated in the other chamber. I know they have some concerns about their free practice of religion. I do not have those concerns. As a Catholic—admittedly not the best Catholic in Australia, but someone who goes to church regularly—I know I'll still be able to practise my faith freely, in the same way I've done all my life. After the changes to the Marriage Act have been made law there will be no change.

My final message to all those who are concerned about the legislation being debated right now: I wish all people in Australia a very, very merry Christmas and a happy new year.

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