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

In seeking to refute the need for this amendment to protect the religious freedom of charitable organisations in Australia, moved by the Treasurer, the member for Leichhardt, and indeed the member for Isaacs, relied on advice from the charities commission and from the Australian Taxation Office. The problem with that advice is it's very selective. If you go to the letter from the charities commission, the question concerned whether a religious charity that currently holds or expresses a view or position on marriage would be able to continue to do so without any negative impacts on its charitable status. And in answering that question, in the letter which has been tabled by the honourable member for Leichhardt, the acting charities commissioner said, 'I assume that "religious charity" means a charity with a purpose of advancing religion.'

Now it's understandable that, not being a lawyer, the member for Leichhardt may not comprehend that there are a lot of purposes that constitute a charity, but it's beyond belief that my learned friend the member for Isaacs could repeat that situation. If one goes to 12(1) of the Charities Act, there are about 12 different purposes that constitute a 'charitable purpose', of which one of them is:

(d) the purpose of advancing religion …

And that was what the advice went to. However, let me give some examples of others under 12(1):

(a) the purpose of advancing health;

(b) the purpose of advancing education;

(c) the purpose of advancing social or public welfare …

When one thinks about the major religious charitable organisations that operate in Australia, most of them that come to mind, like the CatholicCares, the Anglicares, the BaptistCares et cetera et cetera, are there not under purpose (d) of advancing religion but under purposes (a), (b) and (c) of advancing health, education or social or public welfare. So the advice that my friend the member for Leichhardt provides to the chamber is advice that doesn't relate to what most of the charities we're talking about actually do and the basis upon which their charitable purpose is stated and therefore doesn't go to the very issue of the amendments that have been moved by the honourable Treasurer.

But, more than that—and the honourable member for Leichhardt didn't quote this—in the penultimate paragraph of the advice which has been tabled, the Acting Commissioner of the Australian Charities and Not-for-profits Commission says: 'One way to address the concerns that have been raised may be to provide in the amending legislation that nothing in the legislation adversely affects an entity's charitable status by reason only that the entity holds or expresses a position on marriage after the enactment of the legislation that it held or expressed prior to the enactment of legislation that would not have had such an effect.' In other words, the advice provided is selective and doesn't go to the actual activities of most of the religious charities in Australia.

Secondly, the acting commissioner says, as a matter of making sure that there's no adverse consequence, to enact some amendments to the legislation, which is precisely the amendment before the House at the present time. Why is this important? It's important because of those other provisions under which most of the charities actually operate in Australia. If you then go to the way in which that has been interpreted by courts of law, because this is a provision or provisions that replicate charities law worldwide, then you find, in a number of jurisdictions which rely on the same common-law basis as do the provisions in the Charities Act in Australia, that this is actually a problem. Look at the position in relation to what happened in New Zealand. On 21 August 2017, the New Zealand Charities Registration Board deregistered Family First New Zealand, a body advocating for the traditional understanding of marriage, on the basis that it 'has a purpose to promote its views about marriage'— (Time expired)

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

I call the member for Menzies.

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

On 21 August 2017, the New Zealand Charities Registration Board deregistered a charity, Family First New Zealand, a body advocating for the traditional understanding of marriage, on the basis that it 'has a purpose to promote its views about marriage and the traditional family that cannot be determined to be in the public benefit in a way previously accepted as charitable'. That will be the precise situation that charities in Australia will find themselves in if this amendment is not passed by this House and indeed by the parliament. We are threatening the very basis of those charities being able to operate for the good, the welfare, of millions of Australians, regardless of their religious background or not, by not passing this amendment.

A similar position was indicated in the United States. Some may say that the United States has a different legal system, but the United States charities law in this regard is based on English charities law, exactly the same as Australian charity law is. Indeed, no less a person than the Chief Justice of the United States, Justice Roberts, indicated that a similar situation would prevail in that country if this were passed in that form.

So the confidence being asked of us by the member for Leichhardt and the member for Isaacs is not borne out. It's not borne out by the law. It's not borne out by the experience which has occurred other jurisdictions that rely on the same common-law position as we do in Australia, and it's not borne out by the charities themselves. As Senator Fawcett pointed out in the Senate, there are many charities who are very concerned about this very provision. I've had charities come to me who are concerned about this provision, and I know from speaking to colleagues about this that many charities have spoken to them as well.

What we're doing, if we fail to pass this particular amendment moved by the Treasurer, is placing in danger the ongoing work of hundreds of charities throughout Australia, some of most well-known household names as far as the charity sector in this country is concerned. This does not stop for a moment the passage of the bill in terms of allowing same-sex marriage or marriage between any two people to occur in Australia. What the amendment does is protect the age-old position so far as charities are concerned. Simply to rely on one part of the charities law—namely, the advancement of religious purposes—and willy-nilly ignore the advancement of health, education, and social welfare would be a reprehensible step by this chamber to take in this regard. I ask all colleagues—colleagues who will see the passage of this bill and the passage into law of same-sex marriage in Australia—to at least look at what's being done here.

We've got a situation in the Labor Party where the idea of a conscience vote has been totally thrown out the window. The idea that every member of the Labor Party in both the Senate and the House will virtually vote the same way on everything is beyond belief. I ask my colleagues on this side and I ask the crossbenchers to look at what the adverse impact of this would be so far as charities in Australia are concerned. It's absolutely clear that what was put to the chamber earlier does not cover the whole situation. We have some responsibility, surely, to the charities of Australia and the millions of Australians who are served by those charities, to ensure that their status is not adversely affected by the passage of this legislation. Therefore, I urge colleagues to look at this carefully. Do not just have some knee jerk emotive reaction and say you can't have any amendments. Look at the reality of what this will mean so far as charities and millions of Australians are concerned and support this amendment.

Trevor Evans (Brisbane, Liberal Party) Share this | Link to this | Hansard source

I'll be very brief in responding to one or two matters that were raised just then. I will be opposing these amendments, but I will start by acknowledging the genuinely held and professed concerns expressed just then by the member for Menzies, as well as those members moving these amendments: the member for Cook and the member for Boothby, who I have a lot of respect for, and, before that, many other members—the members for Deakin, McPherson, Dunkley, Warringah and others.

On this matter we disagree, respectfully, about the exact line where a compromise is to be struck. I remain forever grateful, as it seems most members on this side of the House do, for belonging to the great Liberal Party, which allows for a difference of opinion, allows for debates and conscience votes, and may, in fact, be the only party these days capable of bringing a majority of mainstream Australians along for the journey together into future.

The matter that I wanted to draw out in response to some of the concerns just raised was pointed to by the member for Menzies. It is a particular sentence in the letter of the acting charities commissioner, suggesting that it required this amendment to be moved to resolve any concerns. The member for Leichhardt did table that document, but I understand he also tabled some additional emails and some correspondence between a senator and the acting charities commissioner. I'm willing to be corrected on that, and I'll read it into the record in a moment, just in case. What the acting charities commissioner said in an email dated 24 November 2017 was very relevant and interesting on this point, so I'll put it on the record now:

The commission view is that under the current ACNC and Charities Act framework, it is unlikely—

unlikely—

that a charity for the advancement of religion could lose charitable status by adopting and advocating for the pre-existing definition of marriage. That is, it would be unlikely—

unlikely—

that a lawfully held view and advocacy of that view could be against public policy or public benefit.

However, given the doubts and concerns that have been raised arising from comments in other jurisdictions — particularly New Zealand and UK, a legislative provision confirming the intention of Parliament that the charity status of such an entity should not change by reason of the new definition, would put the matter beyond doubt.

I trust this clarifies but I would be happy to discuss further if required.

In short—

I'm still quoting—

not legally necessary but could remove any legal debate.

I'll repeat that final sentence for the benefit of honourable members: 'In short, not legally necessary but could remove any legal debate.' So this is not legally necessary according to the charities commissioner and therefore I and others remain unconvinced of the need for these amendments.

The Ruddock review will provide an opportunity to revisit this and some of the broader concerns on non-religious matters that were raised very legitimately by the member for Menzies just then and that do fall outside of the remit of the Marriage Act, which we're proposing to amend here today. If the Ruddock review engages in comprehensive consultation and recommends changes to laws such as these—and presumably it would then recommend that more than just views on marriage be protected—then I and others in this place would find that very persuasive and convincing.

Rowan Ramsey (Grey, Liberal Party) Share this | Link to this | Hansard source

I rise to speak in support of these amendments. Of the five amendments put forward, this one is the most palatable to all. I actually find it quite difficult to believe that this chamber would not overwhelmingly adopt these amendments, which have no reflection at all upon the Marriage Act but ensure the institutions and bodies which we rely on to create the Australia in which we live. It is all very well for others to say that they are adequately covered at the moment, but there was a time when we believed that school chaplaincy was well covered by the protections within Australian legislation and the Constitution. One person took the funding mechanism to the High Court and it was overturned. It fundamentally changed the way in which the federal government was able to fund many organisations within Australia. I don't think we should take the risk with this.

I concur with the member for Menzies' comments when he said, 'I find it hard to believe that there is no-one that normally sits on the other side of this chamber that can support these very mild and well-constructed amendments.' I would've been able to name at least four and maybe half a dozen who I know have had serious reservations about the Marriage Act within itself. I would have thought that, had they been given a free vote, they would have come across the chamber at least on this occasion and backed these particular amendments.

I have been most particularly concerned about this debate on the proposal of marriage equality for a long time. I have had much representation to my office and myself, particularly from independent and religious schools. I find it difficult to believe that there will not be a challenge to the way in which they are funded. If they are not prepared to teach the tenet that same-sex marriage—marriage between two individuals, if you like, as opposed to between a man and a woman—is an equal and viable opportunity for their students, if it is not taught on exactly the same basis, then I think their funding will be attacked.

Given that those tenets go exactly to many of the core reasons for their existence—their dedication to their religion—this is a gross infringement on those rights. It runs the risk of deconstructing the fabric of the society in which we live. I may be completely wrong about it, but why would we take the risk? I predict that if we do not put these amendments into this act today we will be revisiting this space within a medium length of time. I think within 12 months there will be a challenge not, I must say, from the LGBTQ support network—those who are desiring change to the Marriage Act—but from a subversive element elsewhere in our community. They will use that legislation to undermine those institutions. I don't think we should take the risk. Absolutely I think we should not take the risk. Of all the amendments, this is the one that I think is most important and offers the greatest benefit to Australia. Without it, we run the risk of the most damage.

I respectfully ask all those who have genuine concerns within their hearts about what the change in the Marriage Act might do to the Commonwealth's relationship to charities, to schools and to the aged-care sector—and to other governments as well—to really examine within their hearts whether they think they're doing the right thing if they knock back these amendments.

Scott Morrison (Cook, Liberal Party, Treasurer) Share this | Link to this | Hansard source

In concluding the debate on this matter, unless there are other members who wish to speak on it, I thank members for their contributions in this debate. I particularly thank those who have spoken in support of what I believe are very important amendments to protect religious freedoms in this country and, more importantly, the wonderful work of faith that they do in our community, not just here in Australia but all around the world.

Just to pick up on a couple of points in summary, I refer members under the explanatory memorandum on the original bill to paragraphs 177 to 179. I think that addresses many of the questions that have been raised. I don't want to delay the House by revisiting those debates.

I also commend the member for Menzies for the way he quite ably set out the issues, I think, with the failure of the advice that those who are opposing these amendments are relying on to provide that level of protection. I think he's adequately covered that and I don't intend to repeat it. I thank him for putting it forward so strongly.

There was also a statement made in the debate that apparently no-one asked for this protection. Well, that's just palpably false. Not only was evidence heard in the Senate committees about this matter, specifically asking for this; I also tabled in the course of this debate letters representing many different religious organisations and schools that have actually set out to ask for this. In particular, there is one that I didn't mention but which I will mention now because this has been raised. On 23 November I met with the Maronite Bishop of Australia and a number of other of the Eastern Orthodox bishops. He put to me what their proposed amendments were to the Smith bill.

He said that this position was held by the following: the Maronite Bishop of Australia; the Chaldean Catholic Eparchy of Saint Thomas the Apostle in Australia; the Metropolitan and Archbishop of the Syriac Orthodox Church; the Bishop of the Coptic Orthodox Church of Sydney and its affiliated region in Singapore; the Primate of the Armenian Apostolic Church of Australia and New Zealand; the Patriarchal Vicar of the Armenian Catholic Church in Australia; the Syriac Catholic Church; the Imam Masjid Arrahman at Kingsgrove; the Australian representative of the Mufti of Lebanon; and the Imam of the Lakemba Mosque. In their proposed amendments they asked for protection for charities who endorse beliefs that may not accord to the ramifications of the marriage definition and that there be no discrimination in government funding, either expressly or implied, with respect to organisations and religions that do not emphatically, or, for that matter, even tacitly, endorse what is being proposed in terms of same-sex marriage.

There is a clear demand for this. I fear what other members have said—that we will have to revisit this issue once the injury has happened. We could take steps now to prevent that injury and we could ensure that protections are in place to be absolutely assured on this issue. I, like other members of the government, am disappointed that the Labor Party have decided not to have a fair dinkum conscience vote on these amendments at all. In doing so, by opposing these amendments, I think they're letting people down in their communities who are depending on them to stand up for faith and religion and for the work of religion and faith in their communities.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The question is that the amendments moved by the Treasurer be agreed to.

Andrew Broad (Mallee, National Party) Share this | Link to this | Hansard source

by leave—I move amendments (1), (3), (5) and (6) together as circulated in my name. I might inform the House I'm doing my amendments in two sections. The first reason is, knowing that the Manager of the Opposition Business was going to give a speech that was going to bring down the parliament, I thought it was in our best interest to delay things a little bit longer and ensure we are in government a little bit longer. The second is because the two parts of my original amendments have two different distinct meanings and tackle two distinctly different things. If I can put this in a term, I would call this the Castle amendment, for those who have seen the movie.

Essentially, what you do in your own home is your own business and how you interpret your own beliefs in your own home is your own business. This, of course, broadens this principle across to a religious organisation that has facilities. What they do in their own facilities is their own business, and their beliefs should not be interpreted by a judge but should be consistent with the values they hold dear. I suppose you could put that in The Castle language as 'the vibe'. It's the vibe.

Essentially this amendment should ultimately, if it is lost here, be referred across to the Ruddock inquiry for consideration. This is borne out of the example of the Christian youth camp that had a belief structure. People had donated with their own money to build some facilities, and when those facilities were being sought to be used by people whose beliefs were contrary to that belief structure, the court took an onus of trying to interpret what that belief structure should be. I think people, if they think of the Australian way of doing things, hold very true to what is your own business is your own business and, if you paid for it, you should have the final say.

I notice in the Dean Smith bill that we're debating here, he draws on this principle very truly when it comes to the actual facilities for the marriage ceremony. This amendment seeks to broaden that when we think about the facilities a church or religious organisation might own. Recently a facility I know of, a church, was inquired upon by the Victorian education department in order to host an event. What the department failed to tell that church was the event it was wanting to host was the training for the local community for the Safe Schools program. This was in a town where there are many, many places where the department could have chosen to hold that event. It was, frankly, an affront to that church to have not been informed that the training for a state based education program was going to take place in the church facility without them knowing. It put the church in a very difficult situation. Do they refuse? Do they refuse and say, 'This is actually contrary to our beliefs.'? What we're saying in this amendment here is it gives some comfort. It also ensures that they don't have to have it defined in their belief but is actually reflective of their beliefs and values. I don't know what the church decided in the end, whether they chose to go forward and let the Victorian education department use their facilities. But I think there would be many Australians who would say that the approach by the Victorian education department was unreasonable, and that the church should have a right to be able to say, 'Look, frankly, can't you hold that event somewhere else,' without running the risk of having litigious encounters. So that is why I support this amendment.

If you can think about it, the values we hold dear, as Australians, are that you should be able to hold your values; you should be able to determine what happens in your own asset. This broadens across to churches, to campsites and to religious organisations that have been established with their own money to do what they want and they have the right to hold that value. That is not offensive, I think, and is a freedom that Australians should uphold.

Mark Coulton (Parkes, Deputy-Speaker) Share this | Link to this | Hansard source

Order! To members that are in the chamber and guests in the gallery, could you keep your conversations down. This is an important discussion. Everyone needs to hear what's being said.

Barnaby Joyce (New England, National Party, Leader of the Nationals) Share this | Link to this | Hansard source

Mr Deputy Speaker, I would like to thank you for the opportunity to make what I think will be a brief contribution to this debate. It's pertinent that I do it on this amendment. Being a long-time member of St Vincent de Paul, I think it's imperative that we enshrine their capacity to also adhere to their faith. It's very important because no-one would argue with St Vincent de Paul's right to help those who are most in need, from Matthew Talbot Hostel to Night Patrol. It does, obviously, draw on people predominantly of the Catholic faith, and these people should be allowed to continue on with their charitable work unimpeded by what might be tangential effects of this legislation.

I think it's also important to put on the record—I think it's cowardice not to—that I've said from the start that I would accept the view of the Australian people. I would never vote against the view of the Australian people. I do support the current definition of marriage as it stands. I am concerned in this debate that we should have a sense of the result of the plebiscite, in which roughly 60 per cent of people said yes—congratulations, that's a win—but 40 per cent of people said no. There should also be acknowledgement that absolute victory is absolute tyranny if you don't take into account some of the views of those who disagree. I know that, had the vote had been the other way around, that would be exactly the same argument used.

I don't come to this without a view of people in same-sex relationships. Warren Entsch noted before that it was a lonely old fight to try and get people equal access, especially through the dissolutions of superannuation and property rights. I actually supported those people in those relationships having equal rights and access. I don't come to this debate pretending to be any form of saint, but I do believe in the current definition of marriage, which has stood the test of time. Half of them fail; I acknowledge that—obviously, I acknowledge that I'm currently separated, so that's on the record. People should respect the views and the relationships of people's parents or grandparents. It is a special relationship between a man and a woman, predominantly for the purpose of bringing children into the world—if you are so lucky, noting that many people aren't.

As we go through this process and what I believe are conscience issues, I am somewhat perplexed that on none of these amendments have we had any support from any members of the Labor Party. I think if they were truly allowed to exercise their conscience there would be an occasion from time to time when there would be Labor Party members who no doubt have the same views as those who have occupied this side of the chamber on the amendments put forward, noting full well that we absolutely respect people's right to occupy that side of the chamber on the issues they find incredibly close and important to themselves. One of the reasons I say this is that on a debate where things had a 60-40 split, the probability that every person in the Labor Party would occupy that side of the bench on every issue is about three in a billion. So I just don't concur with the argument that this is something that people have done of their own free will. I think that there's a form of coercion in this.

That is unfortunate, to be honest, considering that after this part of the debate this piece of legislation will go through—as it should; that's the will of the Australian people—because on some of the issues there should have been more grace put into acknowledging those who have different views and who have rightly raised concerns with us. This issue of St Vincent de Paul is not a red herring. It's an issue that has been brought up in New Zealand; people have been taken to task in St Vincent de Paul in New Zealand. So on this issue if on no other, on behalf of the organisation that I love and cherish and for which I have worked for so long, I'd like to see this supported.

Warren Entsch (Leichhardt, Liberal Party) Share this | Link to this | Hansard source

On this amendment, I just want to indicate I'll certainly be opposing it. This is an amendment that will radically wind back our discrimination protection—an amendment that directly targets LGBTI people. So let be me clear: the majority of Australians voted yes on same-sex couples being treated fairly and equally across every state and territory. Australians have said that they want same-sex couples to have the same dignity and respect.

This bill has already passed in the Senate. It comes from a cross-party committee process that considered these questions in detail. It will allow all loving couples to finally tie the knot. The bill already protects the rights of ministers of religion, religious marriage celebrants and religious bodies to refuse services to LGBTI people. This is consistent with what our laws already say. Churches and religious groups already can hire and fire employees, refuse service to gay people and teach their religious doctrine. This bill does not change that.

But this amendment to the bill will radically change the religious exemptions test in our discrimination laws. Australians voted yes to remove discrimination against the LGBTI community, not to introduce new forms of discrimination. Our discrimination laws have set the standards for acceptable behaviour. Australians don't want our nation taken back many years by entrenching mistreatment and discrimination against same-sex couples because they get married.

We have an eminent panel of religious-belief experts who will look at the religious freedoms in a meticulous and comprehensive way. They certainly can do that, I think, and that is the right forum to deal with changes to other laws.

This bill should deal only with the Marriage Act. This amendment would dramatically wind back these important protections that protect our friends and family and neighbours from noncompliance and marginalisation. It lowers the test for discrimination. But what does this mean in practice? It means that, after same-sex couples get married, they will be less free from discrimination. I certainly oppose it. Thank you very much indeed.

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

Labor opposes this first part of the amendments, which, to make it clear, is an amendment to the Sex Discrimination Act. It would radically unwind discrimination provisions through changing legal tests in unprecedented and legally unorthodox ways. Our discrimination laws set the standard for acceptable behaviour in Australia, and Australians do not want to wind the clock back 30 years. That is not what Australians have just voted for. The existing test in the Sex Discrimination Act is largely replicated in state and territory discrimination laws, which would mean that, if the first part of these amendments were to pass, Commonwealth law would be radically out of step with Australian law in the rest of the country. It would be legally unorthodox and extremely broad.

These amendments would dramatically lower the threshold for discrimination. The amendment appears to incorrectly import a concept from a Canadian Supreme Court case, Syndicat Northcrest and Amselem, out of context, to dramatically lower the bar for the definition of 'belief', amending the test from acts or practices in 'conformity' with religious belief to being 'consistent with religious belief', and from being 'in order to avoid injury to' religious susceptibilities to 'because of' religious susceptibilities. That is what it would do. That would lower the threshold for when a religious body can rely on an exemption in discrimination protections, altering the way in which incorporation of religious doctrine is assessed by the courts. The other thing that this amendment would do is to extend the types of organisations which are defined as a body established for religious purposes.

I do need to clear up one thing. It's been suggested that St Vincent de Paul supports this amendment. That is simply not correct. The amendment is inconsistent with the Senate report. The Senate committee emphasised that a marriage equality bill should be consistent with existing antidiscrimination laws. To deal with something that the member for New England has suggested: this debate has thus far been conducted without any partisan rancour. Labor aims to continue to debate this bill without partisan rancour. The note that was introduced to the debate just a moment ago by the member for New England should be discarded.

The amendment is unrelated to marriage. The bill before the House—and I have said this already in the debate—changes the law relating to marriage. That's all it does. It has within it religious protections. I want to refer to what the Prime Minister said at a press conference on 17 November. He said: 'Senator Smith's 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.' I agree with that and Labor agrees with that. And the Prime Minister said this: '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's very important. But I have to say I do not see it as being threatened or impinged in any way by the Smith bill.' He's right about that too. Labor agrees with that, and that's the way in which this bill should be approached.

Finally, this amendment singles out LGBTIQ Australians. It's an amendment that would override state and territory laws in relation to LGBTIQ people in a way which cannot be justified, and Labor will not be supporting the first part of the amendment.

George Christensen (Dawson, National Party) Share this | Link to this | Hansard source

So much for the conscience vote! We were told there was going to be a conscience vote on this, but what we've heard repeatedly at the dispatch box from the member for Isaacs and the member for Griffith is 'we will', 'Labor will'. We know that there are people on their backbench who have the same concerns about religious liberty that we do over here. But they are not letting them have a conscience vote. That says a lot about Labor. The amendments that have been put forward by the member for Mallee go very much to the heart of religious liberty, which we have seen voted down again and again today in this House. And we've had cheers from the gallery—cheering for the erosion of religious liberty! There they go, cheering again. When I'm specifically saying 'eroding religious liberty', they support that. That is the voice of tolerance today! I am absolutely disgusted that we are going down this track.

These amendments, which no doubt are going to be opposed like every other thing today, are about ensuring that a church hall, a church property or a church service, or a business run by a church—it may be selling flowers for weddings that might be held in that church—is going to be protected from activists trying to take some sort of stand, which we know they will do because they have done it in the past. They have done it before and they will do it again—and there will be no protections for those churches. The member for Griffith and the member for Isaacs issued a statement in the press saying they were opposed to the draft exposure bill that Senator Brandis, the Attorney-General, put out on the question of same-sex marriage. In that draft exposure bill there were protections for churches, church-run halls, church-run schools, church-run businesses, church-run services and all the rest of it. There was quite comprehensive coverage for churches.

What we're talking about here is a similar sort of thing—protecting churches, church-run businesses and church-run services from activists who are going to want to litigate. There will be no protection for a commercially run church hall from being used for either a same-sex wedding ceremony or reception. There will be no protection for a church-run florist business who sells flowers in the foyer of a church as a side business to make income for the church when someone goes in to purchase those flowers. Those protections are not going to be there. There is laughter and tittering about that up in the galleries and down here. But, mark my words, something is going to happen—and, when it happens, people on this side of the chamber will be saying, 'We told you so!'

Bob Katter (Kennedy, Katter's Australian Party) Share this | Link to this | Hansard source

I never bought into this debate throughout it all because I thought it was totally irrelevant. If you live together, you are married automatically. The courts have decided that. Whether you're man and man, or man and woman, whether you like it or not, you're married in a legal sense. If there's going to be no change, then why this great hullabaloo, with $122 million and the whole time of the Parliament of Australia spent on this issue? If you want to see the judgement of the people, you should've been at the ballot boxes, where I was, during the Queensland elections. Both parties' votes are down in the low 30s. They are reaching the lowest levels ever recorded by either party in their history. Congratulations! Keep going in the direction you're going. We spent the year on this, which makes no difference, as far as I can see, to anything, but when I came down here, every single proposal for protection of religious freedoms has been voted down today. If the local association of LBGTs, or whatever the hell the words are, want to hire a church hall—no, I seriously have no idea what it is, and I'm not going to spend any time finding out either, because you'll probably have changed it between now and then.

I have throughout my life seen the rule of the mob and the intimidation of people, and I hope that my children and grandchildren can stand up to the mob and are not intimidated by them. When I was at university, we had to stand up to the mob that were running around waving Mao Zedong little red books. I had to ask some of my colleagues from university days—some of them were called then 'extreme lefties'; I think I might have been one of them, I don't know—'Did we really run around with Mao Zedong little red books?' It turns out that he's arguably the greatest monster in human history. He's responsible for 48 million deaths. You can get the pictures from the university demonstrations in my day—the rule of the mob, the rule of young people who are very good and positively minded, but they're young. I could quote Locke, I could quote de Tocqueville, but I'll choose to quote John Stuart Mill's On Liberty: 'Democracy does not deliver justice, democracy does not deliver fairness, democracy does not deliver protection to minority groups; democracy gives the majority the power, and that may well be tyranny.' In fact de Tocqueville, who's the greatest commentator on democracy, wrote a book on tyranny. That was the name of the book, and it was a book on democracy.

The thing that got me about this is: why do people in a relationship want to call it marriage? I refuse to use the word 'g-a-y'. I did very well, if I say so myself, in English, at school and thereafter, and I got a very high mark. There was a wonderful poem by Alexander Pope, and in it there is a wonderful line:

Belinda smiled, and all the world was gay.

I had to look it up in the dictionary: 'gay' means beautiful, happy, light, attractive, ethereal. I wouldn't—

An incident having occurred in the gallery—

Mr Speaker, can you shut them up, please? This is the Parliament of Australia. It's not a happy clappers meeting here.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

Order! The member will be—

Bob Katter (Kennedy, Katter's Australian Party) Share this | Link to this | Hansard source

These people—all these people up here who are clapping—they go around calling themselves beautiful, happy, light, attractive and ethereal, and they're proud of it. You know, I would be embarrassed if I went around calling myself all these great adjectives, thinking I'm a really wonderful person. What's in a name? (Time expired)

An incident having occurred in the gallery—

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

Order! I ask the members of the audience to please from refrain from clapping and making any noise while the debate is going on. I ask you very quietly and politely to do so. I give the call to the member for Kennedy

Bob Katter (Kennedy, Katter's Australian Party) Share this | Link to this | Hansard source

What I was saying was: why do they use that name? 'Because it's a lovely name. We think we'll call ourselves a lovely name.' They take the most beautiful word in the English language and take it for themselves. I think you've got a damned hide to be perfectly honest with you. I think you've got a damned hide and an inflated opinion of yourself, as well. And the rest of the world would agree with what I have just said.

Why is there this big thing about marriage? Whether you want it or whether you don't, you're already legally married if you're living together. That's the law in Australia. So why did we turn the whole parliament of Australia upside down for 12 months? Because they want to take our name, the name we give to a man and a wife coming together to protect the future generations with children, for themselves. They took the world 'gay' off us, and now they're taking the world 'marriage' off us. And when we ask for religious freedoms in this place from a bunch of bludgerigars over here, who have no conscience at all except for the endorsement of the Labor Party as their conscience and their compass, not one of them stood up for religious freedom in this place. That is a message that I will remind voters about at the next election, because there's still a damn lot of people in this country that do believe that we should love our neighbour—the Christian principle. There are still people in this country that believe that and believe they have the right to have a moral opinion. Obviously, these people here, attempting to intimidate the parliament, don't believe we should have that right. I have seen you before, because you were out there running around with your Mao Zedong books, back in the sixties. I've seen you before! So try your intimidation on, and enjoy yourself down here, but I'll see you back in the land of the people, and you won't be quite so popular there, I can tell you.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I won't be supporting these amendments. The Greens won't be supporting these amendments. I have set out the reasons why and, can I just say, I can't wait until my beautiful, happy, light and ethereal friends have exactly the same rights as I do. If the member for Kennedy and anyone else wants to know why we're having this debate, it is because for a very, very long time our law has entrenched discrimination. And I am so, so happy that we are standing on the precipice of removing it.

I just want to reassure the member for Kennedy: when we legalise equal marriage in this country, it won't be compulsory, Bob. What it will mean is that everyone in this country enjoys the same rights as the person who lives next door to them, the person that they work with and the person in their family. That is going to be a wonderful moment, and no amount of contributions or bigotry or hatred is going to take that away from us in a very, very short period of time.

On these amendments, can I say, we didn't have to have and we shouldn't have had the plebiscite, but when we did, Australian people voted very, very clearly to remove discrimination from our laws. What these amendments will do is increase discrimination in our laws, and for that very simple reason alone they cannot be supported. Let's get on with making equality a reality.

Bob Katter (Kennedy, Katter's Australian Party) Share this | Link to this | Hansard source

We made a decision in the last state election in Queensland not to run in all seats because we had very limited resources. We could only run in a very small number of seats. If we had attempted to spread those resources out, we wouldn't have got many votes. I may have seen a thousand advertisements for the 'yes' vote and the only advertisement I saw for the 'no' vote was on television. The only ones I saw for us was where we got boards and painted them with paintbrushes because that's all the money we had. And it would be rather interesting to find out where the tens of millions of dollars that was spent on the 'yes' campaign came from. I'm rather curious about that and we will be having a close look at that. But it's quite clear that we had no money to spend at all.

So if you've got a massive campaign—I won't say brainwashing—to get people to believe in your point of view and there's no campaign from the other side whatsoever then it's not surprising that you win the vote. And I might add the honourable member from Melbourne, with whom I agree on many things, just forgot to mention the fact that you are legally married in the sense that the legal concept of marriage, if you live together, is imposed upon you. When I was asked to vote in the very first referendum I voted in, I was lied to by the government, and it's very ironic that in the last effective referendum I voted in I was lied to again. They said they want equality. Well, they got equality now. It is imposed upon you whether you like it or whether you don't by the laws of this country. So what was it all about? It was just about a name. That's all it was about.

Andrew Broad (Mallee, National Party) Share this | Link to this | Hansard source

I thank the people who have offered insightful and interesting debate, entertaining debate some of it, on this amendment. I note with interest the talk about young girls and their being happy and excited and everything. I want to give an example. I have an eight-year-old daughter. She is learning to play the electric guitar. She is not very good at playing the electric guitar. But I'm happy to send her to your House to set up in your lounge room so she can play her electric guitar really, really loud. And bless her, she wants to go on The Voice; she thinks she can sing. I love her but she can't sing. You say, 'Where is he going on this?' Right? She has to have the right. It is her right to play that guitar anywhere she wants, in your house as loud as she wants. You say, 'Hold on a minute here, no, it's my house. My house. I might tell her to turn it down. I might tell her after 10 minutes of playing that she needs to be quiet.' Why? Because it's your house. You have the right.

Our religious organisations have built campsites. They have built church facilities and they have done it with their money. It is their right to determine what goes on in their facilities. It doesn't matter if you want to set up your electric guitar in their facilities and play it as loud as you can. It doesn't matter. It is contrary to everything that Australians stand for. The castle is a home. It is not up to the High Court, it is not up to judges to determine what you believe. It is not up to the judges to determine what goes on in your home. How dare you think it's discrimination to say that it is up to churches, and you're going deny them the right to use their facilities how they see fit. That is freedom we're talking about there. That is the freedom to express yourself in what you want to spend your money on and what you want to build your assets on, and you want to have the final say in what goes on in those assets.

Do not think you achieve freedom by giving rights to others and taking away the rights of someone else—or else we'll call this the 'electric guitar amendment', where you'll let me send my daughter over because, while I love her to bits, she can't play guitar. She'll come to your place, set up in your lounge room and play in your lounge room for as long and as hard and as loud as she wants to, and you can't do anything about it. Do you call that freedom? Is that what we want? Is that what this legislation is about? This legislation should be about uniting Australians to say they can do what they want in their own home. They can marry who they want, but don't take away other people's freedoms at the same time. Don't take away churches' freedom to decide what happens to their assets. You wouldn't give that freedom in your own home; don't take it away from the churches and religious organisations of Australia.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The question is that the amendments moved by the member for Mallee be agreed to.

Tony Smith (Speaker) Share this | Link to this | Hansard source

(In division) If it suits the House, I'll make a few remarks while the division is being counted. To members in the public gallery and the Speaker's gallery, noise from the galleries is disorderly, but you will have noticed that at the end of certain divisions today I've been very tolerant, given the historic nature of the legislation before the House. It's very important that members of parliament here in the House of Representatives are able to make their contributions without noise or interjections coming from the public gallery. Every member has that right on behalf of their electorates. So I would ask people who are in the gallery to refrain.

Andrew Broad (Mallee, National Party) Share this | Link to this | Hansard source

by leave—I move amendments (2), (7), (8) and (9), as circulated in my name, together:

(2) Clause 2, page 2 (table item 5), omit "Part 5", substitute "Parts 4A, 4B, 4C and 5".

(7) Schedule 1, page 19 (after line 13), after Part 4, insert:

Part 4A—Amendment of the Charities Act 2013

Charities Act 2013

68A After subsection 12(3)

Insert:

(4) For the purposes of this section, disregard the fact that an entity is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984.

Note 1: For example, a body that has a purpose of advancing social or public welfare may be registered under subparagraph (1) (c) regardless of whether it is a body established to advance religion under section 37 of the Sex Discrimination Act 1984. It may be both a body that has a purpose of advancing social or public welfare and a body established for religious purposes under section 37 of the Sex Discrimination Act 1984, but for the purposes of paragraph (1) (c) regard is not had to its status under section 37 of the Sex Discrimination Act 1984.

Note 2: For example, a body that has a purpose of advancing religion may be registered under paragraph (1) (d) regardless of whether it is a body established to advance religion under section 37 of the Sex Discrimination Act 1984. It may be both a body that has a purpose of advancing religion under paragraph (1) (d) and a body established for religious purposes under section 37 of the Sex Discrimination Act 1984, but for the purposes of paragraph (1) (d) regard is not had to its status under section 37 of the Sex Discrimination Act 1984.

(8) Schedule 1, page 19 (after proposed Part 4A), insert:

Part 4B—Amendment of the Income Tax Assessment Act 1997

Income Tax Assessment Act 1997

68B After subsection 30 -320

Insert:

30 -325 Bodies established for religious purposes

A fund, authority or institution does not fail to satisfy the requirements for endorsement under Division 30 of this Act for the reason that the fund, authority or institution is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984.

(9) Schedule 1, page 19 (after proposed Part 4B), insert:

Part 4C—Amendment of the Fringe Benefits Tax Assessment Act 1986

Fringe Benefits Tax Assessment Act 1986

68C After subsection 123C(2)

Insert:

(3) An entity does not fail to satisfy the requirements for endorsement in subsection (2) for the reason that the entity is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984.

68D After subsection 123D(2)

Insert:

(3) An entity does not fail to satisfy the requirements for endorsement in subsection (2) for the reason that the entity is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984.

I promise not to mention electric guitars in my speech! Faith based organisations are organisations that come from people who have a deep conviction and intend to live out their conviction in a practical way. I share the story, which actually started off some of the faith based organisations, of a woman who had been judged significantly, so significantly that she was about to be executed. A guy intervened—

Tony Smith (Speaker) Share this | Link to this | Hansard source

I just ask the member for Mallee—I apologise—if he could resume his seat for a second. Could members leave the chamber if they're intending to do so or sit down in the chamber. Those who are here are here to hear the contributions. The member for Mallee has the call.

Andrew Broad (Mallee, National Party) Share this | Link to this | Hansard source

I share the story of a guy who intervened and a girl who was about to get killed. She was about to get stoned for an action that she had taken, because she was caught in the act of adultery. He stood between her and the crowd. He looked at the crowd. He hopped down on the ground, and he wrote something on the ground. He picked up a stone, and he said, 'He who is without sin, throw the first stone.' The older people left first, then the younger people left, then there was no-one there. And he said: 'No-one's here to throw a stone. No-one judges you. Well, I don't judge you either.'

You wonder why I tell that story. I want to tell you why. It is because people who are motivated by their faith get involved in action. Faith based organisations are not judging organisations. They are in fact the spearhead of good. In 1967, when they had a referendum to give rights to the Indigenous population, what did the government do after that? They set aside reserves on the outskirts of towns so that, when the station people, the Indigenous people, had to move off because they were now due for the minimum wage and move into the outskirts of town, they had somewhere to go. That was the government's response. I'll tell you a little bit about my parents' response, motivated by faith. They lived in a tin shed and worked with the Aboriginal community to make sure people's livelihoods were looked after.

Faith based organisations are always the cutting edge, ahead of government, to deliver social services—

An honourable member: Abolishing slavery.

to abolish slavery. You know, David Livingstone opened up Africa. All we ask is that faith based organisations have the right to decide who is in the management and employment of those faith based organisations—the right to reflect those views. On tax law: the faith based charities should be exempt under antidiscrimination law, and it shouldn't impact their tax endorsements.

The freedoms that faith based organisations have provided for the world have been significant. Most of our aid organisations have been faith based organisations. It is imperative that those faith based organisations have the right to decide who they employ. The freedoms of faith based organisations to determine that those who seek to do their work hold similar values are important in a plural and tolerant society. What we do not want to see is people who attempt to litigate against faith based organisations on the grounds that they feel discriminated against. This amendment simply seeks to broaden the act that allows faith based schools and faith based churches to determine that the people who are in their employment are consistent with their beliefs. It attempts to broaden that to faith based organisations. Any attempt to diminish the rights of faith based organisations ultimately diminishes society.

I haven't seen too many people from the LGBTI community—and this is a challenge for the LGBTI community—become great social advocates like I have seen religious organisations and religious people be. The people who come into my office and complain about Australia's treatment of refugees are motivated by their Christian faith. That's what I want to say: we must look after people of faith and uphold them. Those faith based organisations should have those laws broadened across to them and that's why this amendment should be supported in this chamber. Thank you.

Warren Entsch (Leichhardt, Liberal Party) Share this | Link to this | Hansard source

I'll keep this very, very brief. These amendments are totally unnecessary. This is a marriage bill; this is not the time to be changing the Charities Act, the Income Tax Assessment Act or the Fringe Benefits Tax Assessment Act.

Religious charities provide essential services for our community—there's no question about that. And we should recognise their fantastic charitable work. Their charitable status will not be affected by their stance on marriage, in the same way that charities that support marriage equality haven't had their charitable status revoked. The charities commissioner and the tax commissioner both confirmed there's no need for this amendment, so now is not the time to rewrite other laws which have nothing to do with marriage. This bill already strikes the right balance. The Senate voted for it and so should we. Australians have waited long enough for marriage equality. We can deliver it today. Let's get it done!

Luke Howarth (Petrie, Liberal Party) Share this | Link to this | Hansard source

I rise to support the member for Mallee's amendments. I very much agree with what he had to say. Recently, a tribunal held that a large Australian faith based charity, St Vincent De Paul, could not require their president to also be of the same faith or be expected to act consistently with the charity's beliefs. This amendment to the marriage amendment bill will clarify that and, as has always been the intention of the law, faith based charities are to be recognised as religious bodies.

When I spoke on the same-sex marriage debate the other day I thanked the member for Leichhardt for his contribution to it, but on this issue I do disagree with him. Ultimately, this law and this bill will affect charitable status. Many of those organisations believe in the traditional view of marriage, that marriage is between a man and a woman. The concern is that, if those religious organisations continue to believe that in the future, what will happen to their charitable status? What will happen to those organisations? If we fast forward 10 years to 2028, what will happen to those people then?

Speakers opposite, including the member for Isaacs and so forth, have said, 'Oh, well, we don't need to talk about it here; we don't need to worry about it.' They say that the reason for not debating these bills is because it will delay the passage of same-sex marriage. But the fact is that the Labor Party are not standing up for religious freedoms in this country. The Labor Party are not standing up for individuals and Christian based organisations and charities in this party. In fact, to every person listening to this broadcast: you need to know that the Labor Party have not given their members a free vote. They talk about coming into this place and talk about a free vote, but they have not given their members a free vote.

People in my electorate—Jason from Clontarf—are concerned that this bill leaves churches, charities and individuals open to a wide range of political and anti-discrimination attack. Jason, I hear you. Mr Young from Bald Hills urged me to fight for additional protections for charities. Well, the Labor Party is not fighting for you. They are not. They come into this place and they say that there's been a free vote. They've been delaying this bill for the last 18 months by not honouring the coalition's strong commitment to having a plebiscite. They voted against it, and they continue to do so.

For every religious person, the 70 per cent of people who in the census said that they have a religion, the Labor Party is not fighting for them today. The Labor Party will not stand and be counted. For those electorates like Blaxland, where 73 per cent voted no, the Labor Party won't even give the member for Blaxland a say on issues like this. The member for Watson and the member for McMahon, who voted against same-sex marriage just four or five years ago, do not get a conscience vote on these amendments, nor does the member for Fowler or the member for Calwell. The Labor Party says, 'No, you don't have a right to a conscience vote on these amendments.'

For all Australians listening, the fact is that same-sex marriage can be delivered and will be delivered today, but it could have been delivered with sensible amendments in place. The Labor Party are running scared. They ran scared of the Australian people by not allowing a conscience vote straight up, and now they won't even give their own members sensible amendments in relation to this. It's not good enough. The Labor Party are weak. I will be proud to support these amendments.

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

The second part of this amendment would amend the Charities Act, the Income Tax Assessment Act and the Fringe Benefits Tax Assessment Act unnecessarily. Labor opposes this second part of the amendment, but not because of any lack of support for religious charities in Australia. Of course religious charities provide essential and valuable services for the Australian community, but their charitable status will not be changed due to their stance on marriage. Both the charities commissioner and the tax commissioner have confirmed that this amendment to those three acts is unnecessary.

The bolstering of the ability of religious bodies that is defined in the Sex Discrimination Act to satisfy tests for charitable fringe benefits and deductible gift recipient status is completely unnecessary and of uncertain legal effect. I will say this too: these amendments incorrectly and unhelpfully imply that there is somehow a threat posed to religious organisations in these respects by reason of the amendments to the Marriage Act. This set of amendments stems from a baseless concern. The tax commissioner, Chris Jordan, has confirmed that an organisation's position on marriage equality will have no impact on tax deductible status. I want to make it clear: there is no reason for religious charities to fear they will be impacted adversely if marriage equality becomes law.

The member for Mallee has repackaged parts of the abandoned Paterson bill on this issue. He is drumming up baseless fears in this debate, and so are other speakers, and unnecessarily scaring people with a religious objection to marriage equality. I will say it again: Labor supports religious freedoms. Labor has no problem with a debate on how to protect religious freedoms, but this is not the right time or place. The Prime Minister has set up a process for the new year, creating a panel led by Philip Ruddock. He will be assisted by eminent Australian lawyer Ros Croucher, President of the Australian Human Rights Commission, Annabelle Bennett, a former Federal Court judge, and Father Frank Brennan. They will be discussing and considering and reporting on these matters in detail, and that is the right place and the right time for having this debate. The government MPs who are proposing and supporting this second part of the amendments could do a great deal better in respecting their Prime Minister's own process. Labor will be opposing this second part of the amendments.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The question is that the amendments moved by the member for Mallee be agreed to.

Sarah Henderson (Corangamite, Liberal Party) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2), as circulated in my name, together:

(1) Page 3 (after line 11), after clause 3, insert:

4 Protection of religious freedom

Nothing in this Act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching.

(2) Schedule 1, item 20, page 10 (line 11) to page 11 (line 10), omit the item, substitute:

20 Section 47

Repeal the section, substitute:

47 Ministers of religion and marri age celebrants may refuse to solemnise marriages

Ministers of religion

(1) A minister of religionmay refuse to solemnise a marriage despite anything in this Part.

(2) In particular, nothing in this Part prevents a minister of religion from:

(a) making it a condition of solemnising a marriage that:

  (i) notice of the intended marriage is given to the minister earlier than this Act requires; or

  (ii) additional requirements to those provided by this Act are complied with; and

(b) refusing to solemnise the marriage if the condition is not observed.

(3) A minister of religion may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:

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

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

(c) the minister's religious beliefs do not allow the minister to solemnise the marriage.

Marriage celebrants

(4) A marriage celebrant may refuse to solemnise a marriage, despite anything in this Part, if the marriage celebrant's religious or conscientious beliefs do not allow the marriage celebrant to solemnise the marriage.

Grounds for refusal not limited by this section

(5) This section does not limit the grounds on which a minister of religion or a marriage celebrant may refuse to solemnise a marriage.

Today we will be voting on a bill to allow same-sex couples to marry. This is a historic day for the Australian parliament and our nation. As I made clear in my second reading speech last night, freedom of speech and freedom of religion are fundamental freedoms in a representative democracy such as ours. I have long supported the right of gay and lesbian couples to marry, but throughout this debate I've worked hard to ensure that the views of every person I represent in Corangamite are acknowledged and respected. As I said last night, I believe charities must be protected, marriage celebrants must be free to marry whom they choose and freedoms of speech and religion must be protected. I am concerned that the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 does not provide adequate protections.

I wish to place on record that I support the principles which underpinned a number of the other amendments before the House today—such that we would all be free to hold, express or teach views supporting traditional marriage without fear of recrimination in any form—but I was concerned about their scope. In spite of some concerns that I had that these amendments might be beyond power, I supported the Treasurer's amendments relating to faith based charities. The amendments I have moved demonstrate that I have stayed true to the commitment I gave to my constituents that I will support a bill to change the Marriage Act with strong religious protections.

The first amendment I have moved ensures the protection of religious freedom. It provides that nothing in this act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching. This amendment is intended to make it clear that religious freedom is protected using language based on paragraph 1 of article 18 of the International Covenant on Civil and Political Rights. It emphasises that nothing in the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 will in any way prevent or limit the rights of people to practice their faith, to preach their faith or to teach the doctrines, tenets, beliefs and observances which underpin their faith.

All Australians are free to choose their religion and to express and practice their religion and believes without intimidation or interference as long as those practices are within the framework of Australian law. If Labor members support religious freedoms, Labor members should vote for these amendments. But, as we have heard in this debate, Labor members have not been granted a genuine free vote.

The second amendment I have moved enables marriage celebrants other than ministers of religion to refuse to solemnise marriages on the basis of the celebrants' religious or conscientious beliefs. This amendment would provide further support to the religious freedoms of secular celebrants whose religious beliefs and practices preclude solemnising same-sex marriage. It would also afford protection to those celebrants who have a conscientious objection to marriages which are not traditional marriages between a man and a woman. In other words, it would protect celebrants whose personal, philosophical or cultural beliefs about marriage are not founded in a religious teaching or viewpoint. Such celebrants could decline to marry a couple without rendering themselves vulnerable to complaints brought under antidiscrimination legislation.

It is the case that the Senate has considered these amendments and that these amendments were rejected, but that is no reason for members in this place to vote against them. I'm also unpersuaded by the argument that amending the bill would delay the carriage of this bill. We have to get this bill right. That is a fundamental obligation on all of us as legislators, and that is why amending the bill in the manner I have proposed is important and necessary. I commend these amendments to the House.

Tony Abbott (Warringah, Liberal Party) Share this | Link to this | Hansard source

I'm very happy to support the amendment that's been moved by the member for Corangamite—very happy indeed. I thank her and congratulate her for bringing an amendment in such clear terms to the House.

Perhaps for the benefit of everyone in this chamber, including in the galleries, I might read the relevant protection of religious freedom very slowly, because what this amendment proposes is that nothing in this act should limit or derogate from the right of any person to manifest in a lawful manner his or her religion or belief in worship, observance, practice and teaching.

I put it to everyone in this chamber this evening: is there anyone at all here who does not believe in the right of people to manifest their religion or belief in worship, observance, practice and teaching? And if, as I am confident, every single person in this wonderful parliament tonight believes that it's right that people should have this fundamental protection, well, what possible objection could there be to including this in the bill before us? We have heard today contributor after contributor to these debates say that nothing in this bill will impinge on freedom of religion. Well, supporting this amendment is an opportunity to demonstrate absolute fair dinkumness when it comes to those statements. It's an opportunity to show that all the things that we've said—all the people who've objected to earlier amendments and everything they said about their desire not to impinge in any way on faith, on freedom, on religion—are fair dinkum.

Yes, it's true that if we pass this amendment that the bill, as amended, would then have to go back to the Senate, and there may be an hour or so of toing and froing before it came back. And I know there are many people in the galleries this evening who are yearning for the completion of this debate, but I am quite confident that you would enjoy the hospitality of this House. We could provide some hospitality here in this House. There are many members who would be only too happy to open the bar for you, and then we could all come back and do this, but do it in the right way—in a way that doesn't just respect the eight million people who voted yes but respects the anxieties, the concerns and the beliefs of the five million people who voted no. Then we would truly have a wonderfully unifying moment for our whole country.

Trent Zimmerman (North Sydney, Liberal Party) Share this | Link to this | Hansard source

I should start by acknowledging the member for Warringah's kind offer to pay for the entire celebration party tonight! That might be worth the extra hour delay!

This is similar in some respects to amendments that we've considered earlier during today's proceedings. I particularly wanted to focus on one aspect, and that's extending a conscientious objection to all celebrants. This is a principle that I understand opinions are legitimately divided on, but it's not one that I concur with. As I said earlier today, the role of the celebrant is to be an agent of the Commonwealth and the Commonwealth's laws. They are not ministers of religion. I note, for example, that these amendments don't seek to extend the same protections to, say, state registrars at births, deaths and marriages, who also conduct marriages under the law.

So, we do have a divide, quite sensibly, between those that are conducting marriages under religious rites, and those that are conducting marriages under the law. That's why I don't support extending any exemptions to celebrants, other than those already contained in this bill, and that's why I won't be supporting it.

This is the last occasion on which I intend to rise during the course of this week's long debate. Before I sit down, I did want to say a few other things. Firstly, I want to sincerely thank all my parliamentary colleagues on both sides of the chamber for what I think has been an outstanding debate. But I also wanted to acknowledge those in this corner who have worked so hard on this issue for such a long time. Of course, I refer to the member for Brisbane, Trevor Evans, and the member for Goldstein—Tim Wilson-Bolger!—and the member for Leichhardt, who is temporarily absent, so I'll say while he's absent that earlier today we had a photo of all the LGBTI members of the parliament, and everyone said, 'Where's Warren?' We had to remind ourselves that he's not actually gay! But I think we can make him an honorary gay. His leadership has been outstanding. I also want to again thank, in front of this gallery, those in the Equality Campaign, led so ably by Alex Greenwich, Tom Snow, Janine Middleton—who I saw up there before looking very Mosman!—Tiernan Brady and of course the incredible Anna Brown and that whole team that did so much.

Two years ago this week the voters of North Sydney sent to this chamber the first openly gay member of the House of Representatives. At the time, I was the first openly gay member—though I suspect that I probably wasn't the first gay in the village over the parliament's 116 years! But, nonetheless, I raise that because, in the lead-up to that election, many people wondered whether the community, in a lower house election, would embrace an openly gay candidate. And, of course, they did, because, as they should have, they judged me on my merits.

Two years later, people wondered whether Australians would embrace the relationships of their fellow gay and lesbian sisters and brothers, and, of course, we know they did, so resoundingly. What they said was that they understood that a same-sex relationship was no less committed, no less loving, no less difficult, no less beautiful and wonderful than any other relationship. Today we fulfil the wishes of the Australian people, and, in so doing, we leave this parliament making Australia, I think, a far better place.

During the course of campaigns there are often slogans—often some great slogans. Who will forget 'Jobs and growth', which was a great slogan! But I want to conclude by saying that there are three words this year that have touched the hearts and minds of all Australians: 'Love is love'. And, as we celebrate the Christmas spirit, I'm sure that's something that we can all agree on.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

The Greens will not be supporting these amendments. I didn't think it was possible that I was going to learn new things during the course of the debate that I hadn't heard before. But when the conservative forces who've opposed marriage equality said that we now need to enshrine international human rights law in our domestic law, I must say it slightly took me aback.

It is worth looking closely at these amendments, because whilst, on the one hand, they purport to enshrine certain rights that exist internationally, what they do not do is go on to the next part of the section that is quoted, and that is excerpted and lifted out of the international covenants and put in these amendments, because the next part of the section says:

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.

So what is crystal clear from the jurisprudence that the conservatives are seeking to draw on in moving these amendments is that the right of religious freedom does not trump the rights that other people enjoy, and, in fact, to the extent that it does, it can be restricted. So, if you're going to move an amendment that only includes the first part without the second part, what you're in fact saying is that the freedoms and equality that will be enshrined in this bill are able to be trumped by other protections, and that is not what people voted for.

On the second part of these amendments: these amendments give individuals new rights to discriminate against others on the basis of their sexuality—and it's not just simply linked to their religious beliefs or religious organisations; it's linked to their so-called conscientious belief. If one thinks about that even for a moment, what that will allow one to say is: 'I want to opt out of our country's sex discrimination laws because I have a conscientious belief against them.' And you shouldn't be able to just opt out of sex discrimination laws because you don't believe in them.

The Human Rights Law Centre said during the course of considering these amendments:

The idea that a personal moral view could be used to treat someone unfairly because of a particular attribute strikes at the very heart of the rationale for our discrimination laws to begin with, which is all about ensuring equal treatment regardless of particular personal attributes. Introducing a justification for discrimination on the basis of a personal moral view is giving a blank cheque to discriminate.

That is not what Australia voted for and it is not what the bill is meant to be about. These amendments should be opposed.

Christopher Pyne (Sturt, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

I rise to speak against the amendment moved by the member for Corangamite. I do so not because I don't want to delay the bill and see it go back to the Senate. I'm perfectly relaxed about the prospect of the Senate reconsidering the bill and the amendments that the House of Representatives passes. I agree with the member for Warringah that we never wait on the Senate—the Senate doesn't direct what the House of Representatives does. I oppose the amendment because I think it's based on a false premise. I again quote the member for Warringah, who read the first section that seeks to be changed, which is: 'Nothing in this act limits or derogates from the right of any person in a lawful manner to manifest his or her religion or belief in worship, observance, practice and teaching.' The amendment seek to introduce that into the act. But it seeks to introduce an amendment into the act for something the act doesn't do in the first place—the act doesn't derogate the rights of freedom of religion in this country—so it is based on a false premise. This amendment is designed to ensure that religious freedom is not inhibited or limited by the introduction of marriage equality.

My contention in the speech on the second reading and my contention this afternoon is that there has never been a reason to believe that marriage equality somehow inhibits the religious freedoms of ministers of religion or of institutions. And that is specifically provided for in section 116 of the Constitution, which provides for the separation of church and state, and in the actual bill that came to us from the Senate and that we are debating. Introduced by the member for Leichhardt, the sections that seek to introduce new sections to the Marriage Act 1961—sections 47, 47A, 47B and 71A—put it beyond any doubt at all that ministers of religion, Defence chaplains, religious celebrants, institutions, churches, will not be required to allow marriage equality in their institutions or to marry people of the same sex. As a legislative traditionalist, I don't believe that we should introduce unnecessary amendments into a bill to correct an injury that does not exist. Legislation should be passed by the House of Representatives that corrects an injury or a failing that we believe needs to be corrected and it should not include superfluous amendments that do nothing other than apparently correct something which, in my view, is a myth. This bill does protect religious freedom. It doesn't require anyone in Australia to act against their religious principles. Therefore, I do not support the amendment.

Bob Katter (Kennedy, Katter's Australian Party) Share this | Link to this | Hansard source

We have seen proposal after proposal after proposal here to protect religious freedom and every single one of them has been rejected. If you are objectively assessing what is going on here, you must view with a grave degree of suspicion the fact that every single attempt to protect religious freedom has been rejected. I don't apologise to anyone for using the word 'mob', because I have seen it throughout my lifetime: once you get a stampede on, it's a brave man that stands in front of it.

Honourable Members:

Honourable members interjecting—

Bob Katter (Kennedy, Katter's Australian Party) Share this | Link to this | Hansard source

I'm not being allowed to speak either, Mr Speaker—apparently that's inappropriate for anyone from our side! There is a consistent pattern of behaviour; even the most harmless of resolutions proposed is now being rejected. Please excuse me, because we Christians are a little paranoid. We have a history of being picked on in a very big way, and we get a little bit paranoid, so please excuse me for being a little bit paranoid and extremely worried today. When I went along and addressed the thousand people, the little lady, who I don't think has ever been in public life, said, 'I don't want my son wearing a dress.' What mobilised her was the simple exercise of a right to say—

Tim Wilson (Goldstein, Liberal Party) Share this | Link to this | Hansard source

I have a kilt.

Stephen Jones (Whitlam, Australian Labor Party, Shadow Minister for Regional Services, Territories and Local Government) Share this | Link to this | Hansard source

I have a dressing gown.

Bob Katter (Kennedy, Katter's Australian Party) Share this | Link to this | Hansard source

I'll take the interjections. I don't know where they're coming from, but they're saying, 'Men wear dresses all the time.' You must live in a different world than I live in, I can assure you.

An honourable member: They're called priests!

They are told that they have to go to school dressed up as a girl. A priest is not dressed up as a girl; he wears a surplice and soutane, and he's dressed up as a priest to identify him as a priest. So don't insult my intelligence and the intelligence of anyone here today by making such a stupid statement. I repeat for the third time: every single effort to protect religious freedom has been denigrated today. I would like to ask the Christians in Australia to remember that not one single time did this parliament protect them today—not once.

Craig Kelly (Hughes, Liberal Party) Share this | Link to this | Hansard source

Very shortly we'll be finally voting on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017. As I indicated previously, I'll be voting for that bill in line with my electorate. However, before we do that, I would ask my colleagues, the members of the opposition and the crossbenchers to give one final consideration to this amendment moved by the member for Corangamite, which I support. Firstly, of the two schedules of the amendment, the first schedule is protections of religious freedom. As the member for Corangamite reminded us, this is in line with the Universal Declaration of Human Rights. It says:

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.

To not support this amendment is to say that you do not support section 18 of the Universal Declaration of Human Rights.

The second schedule of the amendment goes to ministers of religion and marriage celebrants. Again, I would like every member of parliament to think very carefully about what it means if this amendment is opposed. The Australian government Attorney-General's Department has a website which is titled 'Find a marriage celebrant'. On that it lists different categories of marriage celebrants. It lists the category:

Ministers of religion of recognised denominations who perform religious ceremonies.

They will be exempt from the provisions. They will have the freedom to solemnise a same-sex marriage or not. There is another category:

Commonwealth-registered marriage celebrants who perform religious ceremonies for independent religious organisations.

Under the final bill they will also have the right to decide whether to solemnise a same-sex marriage or not to. There is also a third category:

Commonwealth-registered marriage celebrants who perform civil ceremonies.

What is proposed under the bill is that those that are listed as civil marriage celebrants will have the ability to, within 90 days, effectively opt in or opt out—however you want to describe it—to put themselves on a separate list where they will give themselves the right to either perform or not perform a same-sex wedding.

I have a fundamental concern that a government website will have two categories of people. It will have one category that will support same-sex marriage and one category that will not. I do not believe that this is the responsibility of government. There should be no distinction on a government website as to whether someone supports same-sex marriage or doesn't support it. For those civil celebrants that wish to do a same-sex wedding, there are other methods. They could take out an advertisement on the front page of The Sydney Morning Herald. I'm sure that after the final bill is passed their services will be in great demand. But it should not be a government website that lists two different categories of marriage celebrants: those that will perform same-sex marriages and those that won't. There are several reasons why that should be not done, but one of the most important reasons is that for marriage celebrants on both sides, no matter where they want to stand or whichever list they go on, they should be free from harassment and they should be free from intimidation. Unfortunately, there is nothing in the bill that gives those protections.

Finally, there is also the 90-day section that only allows a civil celebrant 90 days to go on that list. After those 90 days, that section is forever closed. As the Universal Declaration of Human Rights states, an important freedom of religion— (Time expired)

Stephen Jones (Whitlam, Australian Labor Party, Shadow Minister for Regional Services, Territories and Local Government) Share this | Link to this | Hansard source

It's so good to see the galleries of this parliament so filled with people who have come to Canberra to witness a historic event. When I look up, I see men and women of all ages, of all colours and of all faiths who have come to witness our great democracy. I've got to say, you've seen a pretty amazing debate. It's been always passionate and sometimes a little bit oddball. Sometimes you've heard some things that I know I found offensive or certainly weird. But I also know that throughout the course of your lives, either you or your children have heard things which are much more offensive. As a result of what we are going to do today, this will change, because the force of this law is not just what it is going to permit but it is what it says about us as a nation.

Tony Smith (Speaker) Share this | Link to this | Hansard source

I just ask the member for Whitlam—I hesitate to interrupt, but we've had the second reading. It's important he addresses the question before the chair, which is on the amendments moved by the member for Corangamite, in fairness to all other members who have spoken in the debate.

Stephen Jones (Whitlam, Australian Labor Party, Shadow Minister for Regional Services, Territories and Local Government) Share this | Link to this | Hansard source

Thank you, Mr Speaker. In relation to the amendment that goes to civil celebrants, I simply want to make this point: when you act as a civil celebrant, you're performing a civil ceremony, not a religious ceremony, and you are exercising a function under our law. It should be that the people who are exercising the function under our law are equally bound by it. There should be no basis in relation to civil celebrants which permits discrimination.

All of the amendments that are raised in the name of religious freedoms go to a single point: that we should be making a distinction under this law to protect religious rights and freedoms. Every member on this side of the House supports religious freedom in this country—every single member. I know that every single member that is going to vote in favour of this legislation supports religious freedoms. But under our law it has never been unlimited. So perhaps it might be better for those who are advocating these changes and these amendments to go away and reflect upon their own religious beliefs, because these, of course, have changed over time as well, and reflected the changes in views in society. I argue that, instead of accepting these amendments, that would be a better course.

If these amendments are rejected and the substantive motion gets up, there are many people who are going to look back upon it and say that this course of action was inevitable. We know that that is not the case. In 2012, when I first moved a marriage amendment bill to the same effect, there were only 42 people who voted in favour of it. I have a hunch that, when the vote is recorded when this bill passes through, it could well be passed on the voices, and there will be a hell of a lot more than 42 people. People have changed their minds. Parliamentarians have changed their minds, and that is a good thing. It says a lot about what we have become as a country.

Tim Wilson (Goldstein, Liberal Party) Share this | Link to this | Hansard source

I rise to say that I cannot support this amendment, very much in the spirit of the remarks that have already been made by the Leader of the House. I was elected as a Liberal and there is no day, frankly, that I am prouder to be a Liberal and a member of the Turnbull coalition government than this day. As a Liberal, I was elected to defend the freedom of this parliament and to make decisions in the national interest. I have always opposed and always will oppose any effort to entrench international treaties into domestic law which undermine our national sovereignty. My opposition to this amendment should not be misinterpreted as being opposed to its spirit or its objective—or many of the remarks that other people have made—as one of the strongest and proudest defenders of religious liberty in this parliament. But I cannot support the introduction of an amendment that refers directly to the International Covenant on Civil and Political Rights in the same language, because it would allow our courts to undermine our freedom by, ultimately, using foreign jurisdictional law as the basis for their interpretations.

We are a liberal democracy, and the choice that has always confronted this nation is: are we a social democracy or a liberal one? Social democracies legislate what people can do. Liberal democracies remove the barriers for people to exercise their freedom. That is what we are doing in this House today. We are removing the barrier and the boundaries which stop people from enabling themselves to get married.

In closing, this will be the last time I make a contribution to this debate as well. I extend, just as the member for North Sydney has, my thanks to Trevor Evans, the member for Brisbane, Warren Entsch, the member for Leichhardt, and Trent Zimmerman, the member for North Sydney, for their leadership in this debate, as well as Senator Dean Smith in the other place. I also want to put on the formal record my thanks to the Prime Minister, Malcolm Turnbull. This will be a marker in your legacy, Prime Minister, and you deserve every bit of credit for its success.

The final thing I want to say in this debate is to inform the House that I will be dedicating my vote, in the final vote, to the Goldstein family the Greenes of Hampton. The Greene family have been at the front of this debate at every step of the way, and I acknowledge their incredible work. Proud parents Russell and Roxy, with their son and daughter, Steven and Angie, got together to support their son Brent. They have put themselves at the fore of this debate, because they're united by their love, their family and their commitment. So I dedicate my final vote to them, and I want to say thank you for your leadership in my community and across the nation.

Tanya Plibersek (Sydney, Australian Labor Party, Deputy Leader of the Opposition) Share this | Link to this | Hansard source

I rise to oppose both parts of the amendment proposed by the member for Corangamite. Laozi said: 'Being deeply loved by someone gives you strength, while loving someone deeply gives you courage.' Those in the galleries today have shown both strength and courage in their long fight to see this legislation passed. It would be shameful for this parliament to delay this legislation any further. This amendment, and all of the amendments today, should not be supported because, as the Leader of the House said, 'They are completely unnecessary,' and also because this delay is completely unnecessary.

Today, by the end of the day, will be a day that we look back on and it will be one of those days that you remember. You'll remember exactly where you were when this legislation passed and exactly what you were doing when this legislation passed. We should not be dragging out this debate with unnecessary amendments, pushing this legislation into tonight or tomorrow or delaying it for as long as it can be delayed.

I could not be more delighted that, after so many long years, we are almost there. This is almost done. By the end of today, Australia will be a better, kinder and fairer place for all of us. I want to pay tribute to those pioneers who have been fighting for this day for so many years and so many decades, and that is the reason that I cannot support this amendment—not either part of this amendment. I know that this has been an enormously difficult campaign for our LGBTIQ families, having to defend yourselves and defend the people you love from all sorts of nonsense—and you've heard plenty of it today in the discussion of some of these amendments.

Tony Smith (Speaker) Share this | Link to this | Hansard source

No, these two amendments!

Tanya Plibersek (Sydney, Australian Labor Party, Deputy Leader of the Opposition) Share this | Link to this | Hansard source

These two amendments in particular. But soon love will prevail, and it will be your victory, and I hope you will enjoy it.

Craig Kelly (Hughes, Liberal Party) Share this | Link to this | Hansard source

I will not be long, I just want to conclude on the final point that I made because it is a most important point. The fundamental principle of this country, with our religious freedoms, is the ability to change one's religion if one so seeks. But what this bill does is provide a 90-day window for someone who is a civil marriage celebrant to decide where they will sit—whether they will solemnise same-sex marriage or they will not. They have 90 days to exercise their religious freedoms, and then after that they cannot change their position. That is something I cannot support. And I would encourage again my colleagues to give this amendment one final thought about whether they can support it. It will not frustrate the bill. The final bill will go through, but this will at least give marriage celebrants some form of protection.

Finally, I am completely against the principle that we as a government will hold a list that divides marriage celebrants into some that support same-sex marriage and some that don't. I believe that fundamental principle is against the entire bill for what all those in the gallery here are to support. With that, I commend the amendment to the House.

Andrew Wilkie (Denison, Independent) Share this | Link to this | Hansard source

I cannot support this amendment and, indeed, I haven't supported any of the earlier amendments, because during the postal survey the overwhelming majority of Australians voted to end the discrimination. They did not vote to create discrimination, and that would be the effect of this amendment. That's why this amendment cannot be supported. Isn't it time to stop the discrimination and to stop the hurt? Haven't members of the LGBTIQ community been hurt enough for so long—those that have been vilified and abused and hated and assaulted and even murdered, and those who have been forced to take their own life? Surely it is time to end the discrimination. That's why this amendment cannot be supported. I say to the opponents of same-sex marriage: you've had your day. It is now time—it's beyond time—for the members of the LGBTI community, many of whom are people of faith themselves, many of whom, as people of faith along with everyone else of faith, will continue to enjoy freedom of religion. But surely it's time to give the LGBTI community freedom from religion. I will not support this amendment. The protections in the current bill are satisfactory. I think we should just do this thing. In closing, can I say something I said the other day in my speech on the second reading: our laws don't just tell us how to act; they also reflect how we think as a country, so let's start thinking better.

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

I rise to support the amendments moved by the honourable member for Corangamite, and I do on this basis: if, as we are being assured collectively by the Labor Party and by others in this place, there are no adverse consequences of making this change to the legislation—and it's been the assertion that has been put repeatedly during the long hours of this debate today that there are no adverse consequences—then they should support clause 1 of the amendments from the member for Corangamite. There are no explanatory memoranda and there's no reference to international instruments, so this can be read and interpreted simply on the basis of the words that appear in the amendment itself:

Nothing in this Act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching.

If there are no adverse consequences, as we are repeatedly assured, then surely that provision can be supported. Otherwise, the words that we hear, contrary to the fact of how people vote, are basically worthless and meaningless so far as this debate is concerned.

Earlier in the debate, we had assertions about the protection of organisations that are advancing religious causes, and yet the point put—that many of these religious organisations operate under other clauses within the Charities Act for other charitable purposes; namely, advancing health, education and social welfare—has not been answered in this debate. So the suggestion that is made that there are no adverse consequences of these changes is simply wrong. It is a bland assertion that has no basis to it, and if there was some basis for answering that, it would have been properly answered. We are asked instead to trust in a process that will occur next year, a process, as far as I'm aware, for which there is not even terms of reference at this particular point of time. In other words, there are no adverse consequences but, if there should happen to be so, well, trust in a process that might come along next year.

I think there's been a major mistake, if I may say so, on the part of the Labor Party. Effectively, failing to allow a conscience vote—and we all know members on the other side who have grave reservations about this; I'm not going to name them but we all know who they are—will, in the eyes of many Australians, actually reduce the legitimacy of this outcome, and that is something which I don't think is very desirable.

But I finish on the point that if the negative consequences that many people have warned about, who genuinely are concerned about them, come to pass, then I hope that those who have asserted boldly and blandly here that there are no such negative consequences will at least have the grace and humility to accept that they were wrong.

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to 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)

Sarah Henderson (Corangamite, Liberal Party) Share this | Link to this | Hansard source

Before I sum up, I seek leave to put the question on the two amendments separately.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The member for Corangamite is requesting that the amendments be put separately. The amendments are in the possession of the House together and so in order for them to be separated now, the member for Corangamite will need to seek leave for that to occur. Is the member for Corangamite seeking leave?

Sarah Henderson (Corangamite, Liberal Party) Share this | Link to this | Hansard source

Yes.

Tony Smith (Speaker) Share this | Link to this | Hansard source

Is leave granted?

Leave not granted.

Sarah Henderson (Corangamite, Liberal Party) Share this | Link to this | Hansard source

In summing up the first amendment, I want to reiterate and emphasise that nothing in this bill before the House in any way prevents or limits the rights of people to practice their faith, to preach their faith or to teach the doctrines, tenets, beliefs and observances which underpin their faith. I reject the arguments against this amendment and I say to the member for Sturt, respectfully, that he is not correct. Legislation frequently includes provisions which clarify the operation, breadth and scope of such legislation. As legislators, we must ensure that acts of parliament are interpreted as intended. That is why this amendment is important. And to the member for Goldstein and other members: there's absolutely no reference to any international treaty. It should be read on the face of the amendment.

In relation to the second amendment, this enables marriage celebrants other than ministers of religion to refuse to solemnise marriages on the basis of the celebrant's religious or conscientious beliefs. The bill before the House does not currently provide for these rights. It is right and proper that a celebrant who holds religious or conscientious beliefs should not be compelled to conduct a marriage or otherwise face recriminations, legal action or worse as a result of not complying with the Sex Discrimination Act. It is important to make the point—I make this point strongly—that the Sex Discrimination Act does not apply to anything done by a person in direct compliance with the Marriage Act. Already members opposite have agreed that there should be a proper exemption in relation to the Sex Discrimination Act in the bill before the House. I certainly am proposing this should be extended.

In conclusion, I'm very proud today to stand on this side of the House with each of my Liberal and National colleagues who are exercising a genuine free vote. I respect each person's right to vote in accordance with their conscience. It is absolutely disappointing that Labor members opposite have not been granted a free vote. A free vote on the original bill and not on any of the amendments is no free vote at all. Members know it. In fact, if a member were to cross the floor, it is likely that he or she could be expelled from the Labor Party, because that's how the Labor Party works. So today I am particularly proud to stand here as a Liberal to put these amendments to the House. I commend these amendments to the House.

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

I want to be clear: Labor has accepted the need to protect religious freedoms. There is protection of religious freedoms in the bill in the form in which it has come to this House from the Senate. The Prime Minister has described the bill as having adequate religious freedoms, which is why it is a great curiosity that the Prime Minister has said that he proposes to vote for this unnecessary, ill-thought-through amendment. We will not be extending exemptions from antidiscrimination legislation to secular officers appointed by the state. This is something that civil celebrants have not themselves sought. There is already in the bill the creation of a new category of religious marriage celebrants, and that is an acceptable compromise. Labor opposes both parts of this last amendment. Let's get this done.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The question is that the amendments moved by the member for Corangamite be agreed to.