Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

This last set of amendments seeks to achieve two ends. First, the amendment inserts what is claimed to be a broad protection of religious freedoms and, second, the amendment would extend the right to refuse to solemnise marriages to all civil celebrants. The Senate voted against these amendments by a substantial majority, 36 to 27 and 38 to25, respectively. Passing these amendments here, members need to know, would create a substantial disagreement with the Senate.

Labor opposes both of these amendments, and I'll briefly explain why. As to the first, which said to be a protection of religious freedom, this is an attempt to enshrine article 18.1 of the International Covenant on Civil and Political Rights into Australian law with a declaratory amendment, and it is a radical proposal. It has potentially far-reaching and uncertain legal effects. The Attorney-General has claimed that such a declaration would not have legal effect, which does beg the question, why do it then? But Senator Brandis's legal advice is not something I or, I suspect, anyone else is comfortable relying on. The High Court's decision on the citizenship case just a few weeks ago in which all seven judges comprehensively blew the government's legal position out of the water is only the most recent example. Contrary to the claims made by the Attorney-General and other speakers, legal experts have said that this amendment could have far-reaching implications. It's a legal wildcard that the member for Corangamite is trying to insert into a carefully drafted bill. It's a wildcard that was not recommended in the unanimous consensus report of the cross-party Senate committee on which the bill is based.

The amendment proposes cherrypicking of a single right from a far more expansive human rights treaty without thought for the imbalances that this could create with respect to the other fundamental rights enshrined in the ICCPR. For example, why single out article 18(1) but not article 18(3), which states:

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

And in this context, article 26 of the ICCPR is also of significance. It commences:

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

The Australian people in every state and territory have just resoundingly voted to remove discrimination, not to increase it. I'm going to read again what the Prime Minister said of this bill on 17 November at a press conference:

… the Bill … does include important protections for churches and for ministers of religion. It doesn't impose any restrictions on religious practice or religious speech or preaching or anything of that kind.

Freedom of religion is a critically important right of all Australians, it is part of us. It is recognised in the Constitution. So, the protection of freedom of civil rights and freedom of religion in particular is one that is very important. But I have to say I do not see it as being threatened or impinged in any way by the Smith Bill.

I agree with the Prime Minister and Labor agrees with the Prime Minister. And I have to say that we in Labor are more than happy to discuss the better integration of international human rights obligations into Australian law. But the complex issues that are raised by this amendment need to be carefully considered by the religious freedoms inquiry that the Prime Minister has established for this very purpose. And the work of that inquiry should not be pre-empted by this rushed amendment.

On the other part of the amendment, the bill already permits ministers of religion and a new category of religious marriage celebrants from being required to solemnise same-sex marriage if it offends their religious beliefs. Labor has accepted this as a reasonable protection of religious freedoms. But the amendments here would extend the right to refuse to solemnise a marriage to civil celebrants, and Labor opposes this amendment. It was expressly rejected by the Senate committee, it undermines the purpose of the new category of religious marriage celebrants who may refuse to solemnise same-sex marriages where it offends their religious beliefs and it undermines the fundamental principle that civil celebrants, as secular representatives of the state, should be bound by antidiscrimination legislation. (Time expired)

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