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

I seek leave to move the amendments that have been circulated in my name together.

Leave granted.

There are a number of amendments that do a number of things and—

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

The member for Melbourne needs to now formally move amendments (1) to (12) as circulated.

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

I move amendments (1) to (12) as circulated in my name:

(1) Clause 1, page 1 (lines 14 and 15), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment Act 2017".

(2) Schedule 1, item 1, page 4 (lines 12 to 14), omit all the words from and including "their religion" to the end of paragraph 2A(b), substitute "their religion or the views of their religious community; and".

(3) Schedule 1, page 5 (after line 17), after item 5, insert:

5A Section 6

Omit "This", substitute "(1) This".

5B At the end of section 6

Add:

(2) This Act is not intended to exclude or limit the operation of a State or Territory law dealing with anti-discrimination, to the extent that that law is capable of operating concurrently with this Act.

(4) Schedule 1, item 8, page 6 (line 21), omit "(1) The", substitute "The".

(5) Schedule 1, item 8, page 7 (lines 1 to 17), omit subsection 39DD(2) (including the subheading).

(6) Schedule 1, item 20, page 11 (lines 6 and 7), omit paragraph 47(3) (c).

(7) Schedule 1, item 21, page 11 (lines 15 to 17), omit subsection 47A(1), substitute:

Refusing to solemnise a marriage on the basis of religious beliefs

(1) A religious marriage celebrant may refuse to solemnise a marriage despite anything in this Part if:

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

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

(8) Schedule 1, item 21, page 11 (line 21) to page 12 (line 11), omit section 47B.

(9) Schedule 1, item 48, page 14 (lines 29 and 30), omit paragraph 81(2) (c).

(10) Schedule 1, item 63, page 17 (line 10), omit "47(3) (a), (b) or (c)", substitute "47(3) (a) or (b)".

(11) Schedule 1, item 63, page 17 (line 18), omit "the circumstances mentioned in subsection 47A(1)", substitute "any of the circumstances mentioned in paragraph 47A(1) (a) or (b)".

(12) Schedule 1, item 63, page 17 (line 23), omit "81(2) (a), (b) or (c)", substitute "81(2) (a) or (b)".

The Greens are moving these amendments—and these are the same amendments as were moved in the Senate—to do a number of things. I'll explain shortly and without detaining the House for too long what each of those things does. I want to make the point that of course, whether or not these amendments are successful, this bill will be supported. This is a bill that has been a long time coming and is something the Greens have campaigned for for a very long time.

The amendments that have been moved will do several things. They're important not so much for technical reasons but because the principle of this bill, and the principle of the vote of the people in the postal survey that we didn't want to have but that came back with a resounding yes, was to enshrine equality. It was to enshrine equality in our laws. It was not to further entrench discrimination. And, in our mind, there are a number of items that are in this bill that we do support as a compromise bill but that nonetheless contain elements of that compromise that we are worried might potentially open the door for further discrimination in the future.

The items with respect to civil celebrants would remove the transitional provision that allows civil celebrants who are not ministers of non-recognised religions to become religious marriage celebrants and allows them to then have the ability to refuse to solemnise marriages on the basis of their personal religious beliefs. That is because, in the bill as proposed, the proposed right of refusal for existing celebrants who are laypeople reflects a shift from giving religious organisations exemptions from our antidiscrimination law to giving individuals exemptions based on their personal religious belief.

We do note that the Coalition of Celebrant Associations say that they only expect that a very small number of people might take up that exemption, but we are worried that there is a distressing precedent that is being set by allowing individuals rather than organisations to now start claiming this question of exemption on the basis of personal religious belief. It sends, we think, the wrong message to LGBTI Australians, and we should not be opening the door to allow individuals to start claiming those kinds of exemptions. You only need to think—if you took it out of the LGBTI context and put it into another context—of someone claiming an exemption on the basis of their personal belief around another attribute to see how this could be a potentially worrying move in the future, should it be expanded.

The items regarding personal religious belief fall into the same category, and I move those for the same reasons.

I want to also draw attention to the amendments regarding the title. If I look at the title, I understand, given that it was a compromise bill, why the title of this bill does not reflect the question of equality, but it is disappointing that it doesn't. We're proposing, very simply, a compromise solution that we change it back to 'marriage amendment bill' so that it's not about primarily protecting religious freedoms, which we say don't need to be protected beyond the bills that we've previously introduced in this place because they are already protected in other forms of the law. But we should recognise this for what it is—namely, an amendment to the Marriage Act, and that is its primary purpose.

With regard to the item concerning interaction with state and territory laws, this is important. In the discussions that took place that led to the compromise bill, which I reiterate we support, very real questions were raised about what this bill might do to those protections that exist in state or territory laws where the state and territory laws have gone further—in particular, one may think about Tasmania—in recognising the removal of discrimination, especially with respect to LGBTI communities. When one considers that with the goods and services question, which I will come to next, one understands, I hope, the import of the door that we are potentially opening.

The amendment with respect to goods and services should be removed. There are already exemptions in the Sex Discrimination Act that allow religious organisations the right of refusal in respect of goods and services. We do not support those exemptions, have campaigned for some time and will continue to campaign for the removal of those exemptions. (Time expired)

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

The member for Melbourne has the call.

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

For the benefit of the House, I won't speak for much longer. It is not right that religious organisations are able to claim exemptions from the Sex Discrimination Act that other organisations don't enjoy, and we've seen the hardship that that has led to. It has led to people in many instances losing their jobs and being discriminated against, and we do not understand why, in 21st century Australia, such exemptions continue to exist. What worries us about picking up those exemptions and putting them again in the Marriage Act is that it opens the door, we fear, for, in the future, organisations or commercial entities attached to organisations that might be one or two steps removed—they might be owned by a church or by a church-like organisation or associated with a church-like organisation or potentially even an individual—to say: 'Hang on, there must have been a new and expanded protection for me, otherwise they wouldn't have put it in the Marriage Act. Let me claim that exemption and now let me claim the right not to provide a service to you in connection with your marriage.' That is very concerning because, if you looks at the US, you can see the path the people who have opposed equal marriage in the first place want to take next—that is, one of litigation—where they will continue to try and wind back the protections that are enshrined in this bill. We're very, very concerned that, by putting something in this bill that does not need to be there, we might open the door for future litigation. I hope I'm wrong. I hope that, when the courts look at this, they say, 'There's nothing in here that isn't already in existing legislation; it gives you no new rights.' I accept that that's what the member who is moving the bill will say is the case—that it's simply a restating. I hope that I'm proved wrong.

I want to place on the record today that these provisions should not be in this bill and it might be necessary in the future to come back and take them out, if we find that they're being abused. If we find that they're working against the intent of this bill and being used to undermine the freedoms and equality that are granted by this bill, then we might need to come back and remove them. I understand that these amendments may not get up and I understand that many people will be voting against me on these amendments, not because they necessarily disagree with the spirit of them but because they're backing in the compromise. I accept that as a position. It's not the position I take but it's a reasonable position to take. I hope what flows from that is that, in the future, if we find out that the provisions in the bill are working against the LGBTI community in a way that we've seen overseas, we can have a sensible discussion about revisiting it and potentially taking these provisions out of the legislation. With that, I commend the amendments to the House.

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

I thank the member for moving these amendments on behalf of the Australian Greens. I want to indicate that I will be opposing this amendment, as I will other amendments being considered during the committee stage of this debate. I want to start by saying that we have a bill that has been endorsed by the Senate. I think there is a strong desire to have this bill considered and resolved before Christmas. The last thing I want to see out of this process today is some kind of Mexican stand-off with the Senate that potentially threatens or delays that.

I wanted to comment on the merits of the amendment that has been moved in two respects. Firstly, the bill that we have, as the honourable member has recognised, is essentially a compromise that was developed through the Senate select committee process. There are matters in that report and in this bill that did involve some give and take by all parties involved in that process. I particularly want to comment in relation to the proposal that the right of individual ministers to refuse to solemnise marriages should be removed from the bill. I want to argue against that on principle.

An important part of our bill is recognising certain aspects of religious freedom, particularly in relation to the solemnisation of marriages. That includes recognising that religious organisations and their practitioners should have the right to act in accordance with the tenets of their faith and with their own individual religious beliefs. This amendment would potentially remove the right of a minister of any faith to exercise their own religious beliefs in relation to marriage. If we accept that principle in relation to marriages conducted according to religious doctrine—there's a right to religious freedom—that has to extend beyond an organisation and to an individual practitioner. It is entirely possible you could have situation where a particular church—the Uniting Church of Australia to name one as an example—changes its position in relation to same-sex marriage and allows ministers to conduct same-sex marriages, but an individual minister does not agree or concur with that view and wants to exercise their own faith.

The second thing I wanted to comment on was in relation to celebrants. This amendment effectively removes the capacity of existing celebrants to exempt themselves in the same way that ministers can. This is one of the areas that was a compromise. I start from the position that celebrants are effectively acting as agents of the Commonwealth and have an obligation to uphold Commonwealth law. In an ideal world, I accept the point the Australian Greens have made. However, what I would say is that, in the spirit of compromise, we created a pathway for existing celebrants to register themselves as religious marriage celebrants and be afforded the same protections as ministers. That is a compromise, but it does reflect the fact that existing celebrants became celebrants when the law was different, whereas under this bill future celebrants will have to uphold the law of the land. For these reasons, I urge the chamber to vote against this amendment.

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

Somebody has to do it today, so I might as well get it out of the way: 'It's okay to vote no'. The reality is I cannot support this amendment. I want to associate myself with the remarks of the member for North Sydney, particularly on the basis of his critique of the issue around celebrants. I don't quite agree automatically with the position he has come to, which is that civil celebrants are merely agents of the Commonwealth. There is inherit conflict between people's lives, their private views and their freedom—unlimited freedom of conscience and their right to manifest that. We know there's an intersection between people's public duties. I also don't like the idea that somebody of faith could be discriminated against when they are taking a lawful profession simply because of their private faith. As the member for North Sydney has correctly cited, this bill is a compromise of the political situation before us. It is what is necessary to get a bill through the Senate and the House of Representatives and to take the country forward together.

I encourage people to vote against this amendment, and the fact that the Australians Greens, with respect to them, are moving this amendment is a classic reminder of the fact that this bill is not one that they have authored; they have many criticisms of it. It is something that has come from the parliament and from the Senate, and I encourage people to vote against these amendments.

Anthony Albanese (Grayndler, Australian Labor Party, Shadow Minister for Tourism) Share this | Link to this | Hansard source

Those great philosophers Mick Jagger and Keith Richards once sang: 'You can't always get you what you want, but you get what you need.' This bill is what people need. They do not need delay or for the bill to be put off or for a series of amendments to be carried by this House that then get referred to the Senate, begin the whole debate all over again and return to this House at some time in the future.

What my community want, as they have clearly indicated, is to get this done. That's what Australians voted for in overwhelming numbers. Is this bill perfect? No. It's a product of a consensus. It is a product of a collective effort by people of goodwill, across the Senate, to ensure that reform can move forward. During the voluntary postal survey, I and other advocates of a vote for yes, in response to the misleading campaigns of those who suggested that this would have all sorts of unknown consequences to the lives of people who won't be impacted by this legislation at all, clearly said: 'There is a bill already. It's a bill in the name of Dean Smith in the Senate.' It's a bill which has received, quite remarkably, unanimous support and consensus in the Senate.

I say to the member for Melbourne that there's a time when you don't think, 'Oh, I can make this improvement here so that it satisfies all of my wants.' This bill is it. This isn't a time for grandstanding. This isn't a time for trying to ensure there's product differentiation. This is a time for national unity. This is a time for support by people of goodwill, across this parliament, and I pay tribute to people on the other side of the chamber—people I don't normally agree with—because it's hard. It's easier if you're in a party looking for purity all of the time on every issue and you say, 'I think maybe there might perhaps be consequences to this, though I don't think they're real,' which is what the member for Melbourne just indicated, and it is what he indicated in his second reading speech. He spoke about these amendments as restating things that are already in the Sex Discrimination Act. He said that this amendment would seek to change the title of the bill. Guess what? Do a survey of Australians and see how many people know the title of any particular bill, and I'd be amazed if you still want to hold up marriage equality in order to make change that is not of substance.

That's a fundamental area of disagreement that I have and why I'm in a major party, the Australian Labor Party. What I do in this place is come in here to make a real difference to real people and to real lives. That is what this legislation will do. That is why all of the amendments to this legislation should be rejected, whether they be the amendments we're considering now or future amendments moved by some of the opponents of marriage equality seeking to make changes which are not necessary. These issues were considered during the Senate processes. We have an outcome—we have an outcome that will produce marriage equality and can do it today. The big campaign of marriage equality was 'let's get this done'. Let's not delay, let's not look for areas of disagreement, because that's simply not productive. I say to the member for Melbourne that I think it's unfortunate that these unnecessary amendments are being moved. I won't be supporting them. I call upon other members of the House not to support them, not to support the other amendments and to get this done today.

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

I'll be very brief in my comments. It is a good opportunity, after all, to set down a consistent standard upon which to assess amendments that will be moved through the course of today. And I think it's entirely fair, when I'll be objecting to other ill-considered amendments which I have characterised as symbolic posturing, that I equally object strongly to these amendments. Can I make the very significant point that all of these Greens amendments are contrary to the Senate committee report which the Greens' own representative on that committee agreed to. The member conceded that the Senate committee process involved a compromise. Well, this bill is a compromise. This is the reality that we're dealing with, and most outcomes involve a compromise.

I want to draw out one of the compromises that I think will be a topic of conversation today. It is around the protections for organisations and bodies established for a religious purpose. What the Greens are proposing by way of their amendments is that a church cake stall or a church bookshop would have the same treatment as a commercial business. That proposition does not have broad community support. I have often wondered about the preoccupation on both sides of this debate with these mythical bakers and cake makers. Australia is not America. The search for fictitious homophobic bakers in Australia continues unfulfilled! Let's be honest here. For a case like that to arise in Australia it would require a gay couple who care more about activism than about the success of their own wedding to find a business operator who cares more about religious doctrine then the commercial success of their own small business and for both of them to commit to having a fight. Typical Australians would genuinely question the bona fides of the players in a case like that, and the slim prospect of that occurring doesn't warrant the pages and pages of commentary and debate that have been dedicated to it.

But this Greens amendment would actually significantly increase the prospects of that horror situation arising because we would be widening the net to include bodies who legitimately do put religious doctrine ahead of commercial business success. It would allow somebody genuinely looking for a fight to go knocking on the doors of some churchgoers organising fundraisers or bodies established for religious purposes, not business purposes. That's why I'll be opposing these amendments. It's important that we stay true here today to the compromise, the good balance, struck in this bill. It's a good bill. It's a strong bill. Let's get it done here today without going back to the Senate.

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

I want to thank the members of the government for the spirit of their contribution. But I have to respond to the member for Grayndler because, up until this point, we had an understanding that we would move this without tit for tat contributions. I will not be lectured on the question of posturing when we're in this position because an amendment was passed to the Marriage Act several years ago that you supported. And we had a situation where we introduced legislation to the parliament to remove discrimination years ago, and it wasn't allowed to be voted on. So I'm disappointed. In my contribution to this debate, no criticism of the opposition was put forward. We're not going to call a division on this. We're going to support this bill going through. I urge the member for Grayndler to pull his head in because today should not be about making points against each other. Today is a rare opportunity for people across the parties to come together and make sure that love is put first. Let's get back to that and let's get this vote happening.

Question negatived.

Michael Sukkar (Deakin, Liberal Party, Assistant Minister to the Treasurer) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (44) as circulated in my name together:

(1) Clause 1, page 1 (lines 14 and 15), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment (Definition and Protection of Freedoms) Act 2017".

(2) Schedule 1, item 1, page 4 (lines 8 to 10), omit paragraph 2A(a), substitute:

(a) to allow civil celebrants (including traditional marriage celebrants) to solemnise marriage, understood as:

  (i) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or

  (ii) the union of 2 people to the exclusion of all others, voluntarily entered into for life; and

(3) Schedule 1, item 1, page 4 (line 11), after "religion", insert "or traditional marriage celebrants".

(4) Schedule 1, item 1, page 4 (line 13), after "own religious", insert "or conscientious".

(5) Schedule 1, item 1, page 4 (line 15), after "religious", insert "and conscientious".

(6) Schedule 1, item 2, page 4 (line 27), omit "religious", substitute "traditional".

(7) Schedule 1, item 3, page 5 (lines 5 and 6), omit the item, substitute:

3 Subsection 5(1) (definition of marriage )

Repeal the definition, substitute:

marriage means:

(a) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or

(b) the union of 2 people to the exclusion of all others, voluntarily entered into for life.

(8) Schedule 1, item 5, page 5 (lines 13 to 17), omit the item, substitute:

5 Subsection 5(1)

Insert:

traditional marriage celebrant means a person identified as a traditional marriage celebrant on the register of marriage celebrants under Subdivision D of Division 1 of Part IV.

(9) Schedule 1, page 5 (after line 17), after item 5, insert:

5A After section 5

Insert:

5AD Determining when a belief is held etc.

(1) For the purposes of this Act, a person holds a genuine religious or conscientious belief, or genuinely believes, if the holding of the belief (inclusive of the person's or entities beliefs as to the actions, refusals, omissions or expressions that are consistent with that belief)is not fictitious, capricious or an artifice.

(3) For the purposes of this Act, if an authorised celebrant holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, then in holding, expressing or acting on that belief:

(a) whether or not another person who is to be married is a man or a woman is to be determined by the authorised celebrant; and

(b) in determining whether the other person is a man or a woman, if the authorised celebrant reasonably believes and genuinely believes that the current legal status of the other person as a man or a woman is different from the legal status of the other person as a man or a woman at the time of the other person's registration following the other person's birth, the authorised celebrant may disregard the current legal status of the other person's sex or gender, or their gender identity or intersex status.

(10) Schedule 1, item 8, page 5 (line 24), omit "Religious", substitute "Traditional".

(11) Schedule 1, item 8, page 5 (line 25), omit "religious", substitute "traditional".

(12) Schedule 1, item 8, page 5 (line 27), omit "religious", substitute "traditional".

(13) Schedule 1, item 8, page 6 (line 1), omit paragraph (b), substitute:

(b) either:

  (i) the person is a minister of religion; or

  (ii) the person holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

(14) Schedule 1, item 8, page 6 (line 2), omit "religious", substitute "traditional".

(15) Schedule 1, item 8, page 6 (line 6), omit "religious", substitute "traditional".

(16) Schedule 1, item 8, page 6 (line 9), omit "religious", substitute "traditional".

(17) Schedule 1, item 8, page 6 (line 11), omit "religious", substitute "traditional".

(18) Schedule 1, item 8, page 6 (line 15), omit "religious", substitute "traditional".

(19) Schedule 1, item 8, page 6 (line 16), omit "religious", substitute "traditional".

(20) Schedule 1, item 8, page 6 (line 18) to page 7 (line 17), omit section 39DD.

(21) Schedule 1, item 8, page 7 (line 18), omit "religious", substitute "traditional".

(22) Schedule 1, item 8, page 7 (line 20), omit "religious", substitute "traditional".

(23) Schedule 1, item 8, page 7 (line 23), omit "religious", substitute "traditional".

(24) Schedule 1, item 8, page 7 (lines 26 to 33), omit subsection 39DE(3).

(25) Schedule 1, item 8, page 7 (after line 33), after section 39DE, insert:

39DF Request for identification as a traditional marriage celebrant to be removed

(1) A traditional marriage celebrant may, in writing, give the Registrar of Marriage Celebrants notice that the celebrant no longer wishes to be identified as a traditional marriage celebrant on the register of marriage celebrants.

(2) If a traditional marriage celebrant gives the Registrar of Marriage Celebrants notice in accordance with subsection (1), the Registrar must remove the identification of the celebrant as a traditional marriage celebrant from the register.

(26) Schedule 1, items 9 to 16, page 8 (line 3) to page 9 (line 34), omit the items.

(27) Schedule 1, item 17, page 10 (line 3), omit "religious", substitute "traditional".

(28) Schedule 1, item 17, page 10 (line 5), omit "religious", substitute "traditional".

(29) Schedule 1, page 10 (after line 6), after item 17, insert:

17B Before subsection 45(1)

Insert:

Ministers of religion

17C Before subsection 45(2)

Insert:

Traditional marriage celebrants

(30) Schedule 1, item 18, page 10 (lines 7 and 8), omit the item, substitute:

18 Subsection 45(2)

Omit "not being a minister of religion", insert "being a traditional marriage celebrant (other than a minister of religion)".

18A After subsection 45(2)

Insert:

Other authorised celebrants

(2A) Where a marriage is solemnised by or in the presence of an authorised celebrant, not being a minister of religion or a traditional marriage celebrant, it is sufficient if each of the parties says to the other, in the presence of the authorised celebrant and the witnesses, the words:

"I call upon the persons here present to witness that I, A.B. (or C.D.), take thee, C.D. (or A.B.), to be my lawful wedded wife (or husband or spouse)";

or words to that effect.

Certificates of marriage

(31) Schedule 1, item 19, page 10 (lines 9 and 10), omit the item, substitute:

19 Before subsection 46(1)

Insert:

Traditional marriage celebrants

19A Subsection 46(1)

After "denomination", insert "but being a traditional marriage celebrant".

19B After subsection 46(1)

Insert:

Authorised celebrants (other than ministers of religion or traditional marriage celebrants)

(1A) Subject to subsection (2), before a marriage is solemnised by or in the presence of an authorised celebrant, not being a minister of religion of a recognised denomination or a traditional marriage celebrant, the authorised celebrant shall say to the parties, in the presence of the witnesses, the words:

"I am duly authorised by law to solemnise marriages according to law.

"Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.

"Marriage, according to law in Australia, is the union of 2 people to the exclusion of all others, voluntarily entered into for life.";

or words to that effect.

State and Territory officers

19C Subsection 46(2)

After "subsection (1)", insert "or (1A)".

(32) Schedule 1, item 20, page 10 (line 26), after "religious", insert "or conscientious".

(33) Schedule 1, item 20, page 10 (line 28) to page 11 (line 7), omit subsection 47(3), substitute:

(3) To avoid doubt, a minister of religion may refuse to solemnise a marriage, despite anything in this Part or any law of a State or Territory,if any of the following applies:

(a) the refusal is consistent with the doctrines, tenets or beliefs of the religion of the minister's religious body or religious organisation;

(b) the refusal is made because of the religious susceptibilities of adherents of that religion;

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

(34) Schedule 1, item 20, page 11 (line 9), omit "This section does not", substitute "Subsections (2) and (3) do not".

(35) Schedule 1, item 21, page 11 (line 13), omit "Religious", substitute "Traditional".

(36) Schedule 1, item 21, page 11 (lines 15 to 17), omit subsection 47A(1), substitute:

(1) This section applies to a traditional marriage celebrant who is not a minister of religion.

Note: For the refusal by a minister of religion to solemnise a marriage, see section 47.

(1A)Despite anything in this Part or any law of a State or Territory, the celebrant may refuse to solemnise a marriage that is not the union of a man and a woman if:

(a) the celebrant holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; and

(b) the holding by the celebrant of that belief does not allow the celebrant to solemnise the marriage.

(37) Schedule 1, item 21, page 11 (line 19), omit "religious", substitute "traditional".

(38) Schedule 1, item 21, page 11 (after line 30), after subsection 47B(1), insert:

Note: Examples include:

(a) the provision of services by relationship counsellors;

(b) hire of reception halls;

(c) catering for receptions;

(d) the provision of chapels, receptions halls, other like facilities or services by educational institutions to which section 38 of the Sex Discrimination Act 1984 applies.

(39) Schedule 1, item 57, page 15 (lines 23 and 24), omit the item.

(40) Schedule 1, item 63, page 17 (line 11), omit "religious", substitute "traditional".

(41) Schedule 1, item 63, page 17 (line 15), omit "religious", substitute "traditional".

(42) Schedule 1, item 63, page 17 (line 18), omit "(1)", substitute "(1A)".

(43) Schedule 1, item 64, page 18 (line 10), omit "religious", substitute "traditional".

(44) Schedule 1, item 66, page 19 (line 7), omit "religious", substitute "traditional".

The first contribution was not particularly consistent with the spirit of love today, but I will try and be a little more measured in my comments than the previous speakers. These amendments which I am moving essentially do two things: one is symbolic and deals with the definition of 'marriage', and the second is in relation to the religious and conscientious protections provided to celebrants. So one is quite symbolic in nature and one is very practical.

In relation to the first change that I'm proposing, the Marriage Amendment (Definition and Religious Freedoms) Bill 2017—the Smith bill, as I will call it today—redefines marriage to be the union of two people. We believe it unnecessarily distinguishes the definition held to be true by at least five million people. One thing I said in my speech on the second reading was that—to the extent that it's possible for us to simultaneously ensure that the overwhelming will of the Australian people is met by changing the Marriage Act to allow same-sex couples to marry while also respecting the views of a not-insignificant proportion of our country: 40 per cent of Australians or five million people—we should, to the greatest extent possible, seek to do so, because today, even for people such as I who voted no, should be a unifying moment for our country. It should be unifying for 100 per cent of those who voted in the postal survey, not just the 61 per cent who voted yes. So my proposal, as circulated in these amendments, is that we have a definition of marriage that includes 'the union of two people to the exclusion of all others, voluntarily entered into for life, or the union of a man and a woman to the exclusion of all others, voluntarily entered into for life'. Note that there are two categories there but one definition of marriage, one that appropriately recognises and fulfils our obligation to meet the will of the Australian people in allowing same-sex couples to marry but also ensures that a definition, a belief and an understanding of marriage that has been understood from time immemorial is also contained in that piece of legislation.

As I say, it's extraordinarily important today that we do, to the greatest extent possible, cater for 100 per cent of Australians. That's not going to be possible on every question. On the substantive question as to whether we change the act or not, of course the majority rules, and we must fulfil our obligations to the Australian people. But, where possible, we should be seeking in this House to represent all of our constituents, and that's what this symbolic change to the definition of marriage, in relation to the bill in front of us, does. It ensures that we absolutely fulfil the obligation under the postal survey, but it also recognises that, for those five million Australians who have had an understanding of or a belief—it might be a religious belief—about or a tradition as to marriage, that is also contained in that bill. Where they are not inconsistent, where one doesn't infringe on the other, I think we must do so, and I'd be asking the House to support that change.

The second change in the amendments that I've circulated, essentially, extends the religious and conscientious protections to celebrants. As supported by the February 2017 Senate select committee report on same-sex marriage—which I note was approved by Labor, NXT, Greens and coalition senators—celebrants who are not religious ministers should still be able to refuse to solemnise a marriage, consistent with their religious convictions. This bill does not implement that approach, other than as a transitional measure. I don't think anybody ever envisaged that a celebrant who had a conscientious view on marriage should be forced to conduct a ceremony if that was against their conscientious beliefs. That would also have the perverse impact of saying, 'You're entitled to choose not to solemnise a marriage for a religious belief, but you're not entitled if you have a conscientious belief against conducting that ceremony.' It might seem counterintuitive to many people listening to my contribution, but I don't think we should be saying that only those with religious objections should be entitled to do so. I'd say there are lots of people who would have objections for very secular reasons, which have nothing to do with religion, and they should not be forced to conduct ceremonies. The transitional measures that are currently contained in this bill are hopelessly inadequate in protecting those individuals.

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

Labor will be opposing this amendment. Indeed, we will be opposing the other amendments that will be moved, for the very simple reason that this bill now needs to pass the parliament. It should pass the parliament in an unamended form. It should pass the parliament in the form in which it has come to us from the Senate because, as the member for Grayndler has already made clear, we need to get this done.

This is a bill about marriage equality. It's a bill that allows couples to marry in Australia. It allows for couples who are already married overseas to have legal recognition of their marriages at home. Contrary to the suggestion made by the member for Deakin, this is a bill for 100 per cent of Australians. To be clear about what these particular amendments do, they create a new category, described as traditional marriage, that would single out same-sex couples for discrimination. The reference in these amendments to conscientious belief might sound innocent enough on its face, but it would be unprecedented and dangerous to allow discrimination on that basis. It would be a step back from longstanding antidiscrimination provisions, and that's why Labor is very clear in our opposition to this amendment.

Australians have cast their vote already for true equality for all Australians. They did not cast their vote for new forms of discrimination to be introduced. The amendments that are put forward by the member for Deakin contain elements from the unloved and unmourned Paterson bill in the Senate, which was abandoned. If these amendments were to succeed, they would create two separate categories of marriage—an entirely retrograde step. They would create an unnecessary, artificial and unhelpful distinction between man-woman marriage and marriages between other consenting adults. The consensus report of the Senate select committee supported amending the bill that was to be introduced, amending the definition of marriage. This was a unanimous report from the Senate select committee. Paragraph 2.20 of that Senate committee report says:

The committee supports the use of '2 people' as the appropriate definition to broaden access to marriage for all Australian adults.

To make it clear, so that there's no confusion about the other aspect of these amendments, the bill that's before the House does not allow for civil celebrants to refuse to solemnise a marriage on the basis of their personal beliefs regarding same-sex marriage. What the bill does allow for is for celebrants to self-nominate as a religious marriage celebrant, if they wish, where they are a registered marriage celebrant, as for ministers of religion. Again, the bill is consistent with the Senate select committee's report from February this year, which reached a historic cross-party consensus on the pathway forward. This amendment goes in the opposite direction.

As I have said, we are very directly of the view that the introduction of conscientious belief as a justification for a refusal to perform a marriage ceremony would be a very dangerous proposition. It is contrary to the entire framework of Australia's existing antidiscrimination laws. Labor does not support the drastic extension of discrimination to include exemptions on the basis of conscientious belief. This bill is an opportunity to increase equality across Australia. It should not be used as an opportunity to increase discrimination.

Karen Andrews (McPherson, Liberal Party, Assistant Minister for Vocational Education and Skills) Share this | Link to this | Hansard source

I rise to speak on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017. There are two indisputable facts that have arisen in the public debate on same-sex marriage: (1) Australians have voted overwhelmingly to change the definition of marriage to include same-sex couples; and (2) Australians want to ensure that religious freedoms are safeguarded. In my view, it's incumbent upon the parliament to reconcile both with this legislation. And, as the original bill does not provide a number of specific religious safeguards in relation to the definition of marriage, these amendments are necessary.

A Newspoll in August found that in response to the question 'Do you think parliament should provide guarantees in law for freedom of conscience, belief and religion if it legislates for same-sex marriage?' 62 per cent of people said yes; 18 per cent said no; and 20 per cent were uncommitted. So roughly the same proportion of people support religious protections as support same-sex marriage. Clearly we have an equal obligation to both groups to reflect their views, and this can be done. Many people voted yes with the expectation that religious freedoms would be safeguarded. In my own electorate of McPherson, for example, 60 per cent of people in the 2016 census actively identified as Christian with only 31 per cent saying they have no religion. My electorate recorded a 65.5 per cent 'yes' vote, higher than the national average. Clearly a great many people who are Christian or who are of other faiths voted yes, and I believe many did so with the expectation that religious freedoms would be safeguarded.

The Leader of the Opposition said in September:

I can give this guarantee to the Australian people: I and Labor not support legislation which impinges upon religious freedom in this country … What I promise Australians is that before the legislation for marriage equality is completed or voted on in parliament, we will make sure that concerns about religious freedom are met with and dealt with and are treated with respect.

The amendments that we are introducing today are about making sure those concerns are met and dealt with. And the Leader of the Opposition needs to honour his word and vote in support of these amendments. If he does not, I challenge the Leader of the Opposition to explain how Labor has taken into consideration the 62 per cent of Australians who want religious freedoms protected.

This bill before the House requires amendments so we can specify religious protections in regard to the definition of marriage while at the same time expanding it. There are a number of aspects identified by human rights lawyers and constitutional lawyers that are absent and should be included in this bill. These include: recognising both traditional marriages and two-person marriages as valid marriages in Australian law under the definition; protections for marriage celebrants with religious and conscientious objections; recognising legitimate beliefs on this issue and freedom of expression; an antidetriment shield provision protecting individuals and organisations with a genuine traditional marriage conviction from being subjected to unfavourable treatment by public authorities because they hold or express or lawfully act on that conviction; and freedom from being required to express, associate with or endorse a statement or opinion about marriage which is inconsistent with a person or organisation's genuine religious or conscientious convictions about marriage. Protections for charities should include non-discrimination in government funding, protection of religious bodies and schools and rights for parents to withdraw children from certain classes if the content conflicts with their religious or conscientious beliefs.

As these amendments clearly demonstrate, we can specify religious protections in regard to the definition of marriage while at the same time expanding it. Amendments to protect religious freedom will not mean a weakening of antidiscrimination laws. It's not about giving people of religion a licence to discriminate. It's about acknowledging and allowing people to maintain sincerely-held religious and conscientious personal views without them being discriminated against for those views. This is the fundamental basis of freedom of thought, religion and speech which we pride ourselves on as a Western democracy. Beliefs in same-sex marriage and traditional marriage, while oppositional in nature, should be able to exist side-by-side.

The Australian community is overwhelmingly loving, tolerant, mature and respectful enough to know that we can accommodate a wide range of views and ideas. We can agree to disagree and not see differences of opinion as some sort of short-coming to be denied and subverted. We can legalise same-sex marriage and at the same time protect the fundamental rights of those who, for religious reasons, do not personally support it. It will not make any marriage less legal. I commend the amendments to the House.

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

The Greens will be opposing these amendments and all of the other amendments that plagiarise from the widely rejected Paterson bill. I won't make further comments on the other amendments, because these comments apply to all of them. These amendments seek to increase discrimination against lesbian, gay, bisexual, transgender, intersex and queer Australians. Now, the far Right conservatives who are promoting these amendments say they're a shield for religious belief, but in fact they're a sword for hatred and bigotry that will be turned against our fellow Australians. The bill contains protections for religious belief. The bill contains them. As you would have heard from the previous debate, we think some of those are turning from protections into something else, and in fact it goes too far. But to suggest that the bill does not contain those protections is simply wrong.

We must remember that the people who are moving these amendments are the people who didn't want marriage equality to happen in the first place. There comes a point where you have to accept the verdict of the people and the verdict of the parliament, which are that equality has won. The people moving these amendments, in continuing to prosecute the fight against marriage equality, run the risk of looking like those World War II soldiers stuck a decade or two later who hadn't realised that the war was actually over. There comes a point where you have to realise that equality has won and it's time to come out of the jungle.

We need to get on with doing what the Australian people want. Australia has voted not for hatred but for love. The Australian people do not want us to insert in this bill potential weapons that can be used against the very people who this bill is trying to support. Now it is time to give up the war against equality. Equality has won. We urge the House to reject these and all of the other amendments so that we can now pass the Senate bill unamended and make equality a reality within a matter of minutes.

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

If I could just make a couple of observations following the contribution from the member for Melbourne: look, it's true that we've just had a plebiscite campaign, and it's true that some of us in this House argued strongly for the 'no' case, but all of us in this House are respecters of the democratic process, and I think it would be wrong to say that there are very many people left in this House who are opponents of same-sex marriage. What there are left in this House—more, I suspect, than the member for Melbourne might think—are people who believe in freedom of conscience, freedom of speech, freedom of religion and parental choice. These amendments are not designed to frustrate this bill. They are not designed to delay this bill. They are designed to improve this bill and to make this bill a unifying occasion—as unifying as it can be under all the circumstances.

Almost eight million Australians voted yes; almost five million Australians voted no. All Australians, whichever way they voted, deserve to have their views respected and, as far as is possible, accommodated in the legislation. I suspect that many of the eight million who voted yes did not want to exclude traditional marriage; they simply wanted to embrace same-sex marriage too. And that's the beauty of the amendment proposed by the member for Deakin: it respects traditional marriage while allowing same-sex marriage to take place. In addition, it is extending to new celebrants the freedom of conscience that is given in the bill to existing celebrants. If it's right for existing celebrants to have this freedom of conscience, surely it's right for new celebrants to have this freedom of conscience as well.

We all want this bill to proceed expeditiously through the House. We all want Australians to feel proud of the parliament this day, but I think we will feel prouder of the parliament this day if the parliament is capable of considering these amendments on their merits rather that coming into this chamber with a preconceived view.

I was delighted in the course of the campaign when both the Prime Minister and the Leader of the Opposition pledged that, before same-sex marriage becomes law, there will be adequate freedoms of conscience, religion and expression in place. That is simply what these amendments seek to do—to make the words of the Prime Minister and the Leader of the Opposition a reality. I commend the amendment to the House.

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

I'll be opposing these amendments and I make these remarks on behalf of a number of my coalition colleagues in order that this consideration in detail be as time efficient as possible. There are two main elements to these amendments that I'll touch on. The first relates to the definition of marriage, and the second relates to civil celebrants.

To best understand why these amendments are ill-considered, let's remember how this bill formed its current positions with respect to the definition of both marriage and celebrants. This started as a government bill, an exposure draft prepared by our Attorney-General. It subsequently went through a Senate committee, a comprehensive process where there was extensive consultation with many of Australia's religious organisations and other community leaders and organisations. There were 400 submissions, 40-something witnesses and significant scrutiny by all of those senators, and that consultation led to a unanimous set of findings—that is, unanimous agreement by senators across the political spectrum, including government senators. What is proposed in these amendments goes against the informed and unanimous findings of senators from right across the political spectrum. Given these amendments are essentially the same as those defeated recently in the Senate, they should be rejected again here for similar reasons.

On the detail of these amendments, let me start with civil celebrants. To be clear, the bill in front of us protects civil celebrants. The bill allows existing civil celebrants who have strong religious beliefs against same-sex marriage to identify as religious marriage celebrants, which then gives them the right to refuse to solemnise same-sex weddings. What the amendments propose to do, on the other hand, is create a carve-out that would be ongoing and would allow not just religious objections to same-sex marriage but non-religious objections as well. To be clear, that approach has been strongly rejected by the associations representing civil celebrants. I have taken the time to meet with some of them to confirm this. The civil celebrants associations do not want this. The Senate committee specifically considered this amendment and rejected it too. To quote the committee: 'Consideration should be given to affording a pathway for current'—current—'civil celebrants to elect to transfer to religious marriage celebrants, allowing these celebrants the benefit of the protections afforded to ministers of religion.'

Now on to the definition of marriage. The bill proposes to amend the definition of marriage from 'a man and a woman' to 'two people'. That's what senators from right across the political spectrum recommended, following their extensive consultation. They said, 'The use of "two people" is the appropriate definition to broaden access to marriage for all Australian adults'. What these amendments propose to do, on the other hand, is create two definitions—marriage A and marriage B. Marriage A would be the union of 'a man and a woman', and marriage B would be the union of 'two people'.

There's a key question here that a member would need to be able to answer before supporting these amendments: are marriage A and marriage B different or are they the same? Is the distinction legally significant or is it symbolic? I was surprised to hear the first honourable member speaking in favour of these amendments, because his contribution said that the change was 'symbolic'. He used that word. Whereas subsequent speakers in favour of the amendments, I think, broadly seemed to say that they aren't symbolic but serious and material amendments.

If there is not a significant difference between proposed marriage A and marriage B, if this is symbolic, then this is a pointless, unnecessary amendment with no legal effect and there's no justification to support it. Pointless regulation is illiberal regulation. This government is philosophically opposed to pointless red tape. Our statute books are not the place for symbolism and gestures. We have Sky News for that. Yet, if there is a significant difference between proposed marriage A and proposed marriage B then I can tell you right now that that is contrary to the equality that the overwhelming majority of Australians just voted for. The people listening to this debate could well be forgiven for thinking that we are going close now to replaying the postal survey campaign with this amendment.

Members supporting these amendments have to decide: Are they merely symbolic? Are we supporting red tape? Or do they create a real legal difference and, in doing so, potentially undermine the overwhelming decision of the Australian people? Either way, the proposed amendments should be rejected. This bill is already a compromise; it strikes the right balance. That's why this bill has the blessing of both religious leaders and gay rights advocates. The proposed amendments do not have that broad support.

Ted O'Brien (Fairfax, Liberal Party) Share this | Link to this | Hansard source

I rise to support the amendment put by the member for Deakin. To me, it addresses a deficiency in the bill where there's an embedded assumption that religious beliefs are more important than conscientious beliefs. There's an assumption in the bill that says religion is more important than conscience. That is reflected in clause 47, where more rights or bestowed on an religious celebrant in the future than a civil celebrant, once the grandfathering period is over.

I have a problem with this out of principle, because, in contrast to that assumption, I believe that conscience trumps religion. Conscientious belief trumps religious belief. Indeed, the primacy of conscience is not only fundamental to the philosophy of the party to which I belong, the Liberal Party, but it is also fundamental to Christian theology. I support the wise words of the 19th century theologian, John Henry Newman, who at the time was a cardinal of the Catholic Church. He said, 'I drink to the Pope, but my conscience first.' Based on that principle of conscience being primary, I shall be supporting this amendment as well as other amendments put by some of my colleagues.

Andrew Laming (Bowman, Liberal Party) Share this | Link to this | Hansard source

I want to add to what I think have been some excellent contributions on this side. You can hear both sides of this important debate happening on this side of the chamber, and I do wish that on the other side there might have been a slightly more detailed look at these very important amendments. It seems that this side of the chamber reflects the diverse views of the nation, and the other side doesn't. Clearly, why this amendment has been put in very good faith by very good people is a concern about the pre-eminence of one form of marriage. The concern about marriage celebrants is one that deserves to be discussed, but I feel that it is not an amendment that this House should carry.

In the fundamental understandings of what discrimination is, we have two definitions. One simply recognises that a difference is discrimination. But there is also the unjust and prejudicial treatment of a group, and that is also discrimination. We find it very hard, in this place, to create rules that allow the first and prevent the latter. For that reason, we have to be extremely careful to be defining something like marriage in two ways, when this great nation has told us they are prepared to extend the definition and create one form of union between consenting couples. As I said last night, if there are Australian adults out there wishing to marry, we should be allowing them to do it. This is a world lacking love not one with surplus love. It is a world lacking love, and we need to recognise love in all its forms. That has been decided. That debate is over. Now we need to ask ourselves a simpler question: is there any need for legislation to be defining more than one form of marriage? Quite simply, there is not.

I believe there is something unique and special about my marriage, but I believe that everyone would feel the same way about their own marriage—self-evidently. We can hold to those views in a free economy and free democracy without necessarily discriminating in any way that rubs it in the face of others that their marriage is different, because that's fundamentally what you do as soon as you profess your view publicly in a way that ultimately harasses or even humiliates someone else. That's not what 99 per cent of Australians want to do, but the reality is that this debate has energised the one per cent at either end of the extreme to find a way to take this sort of stuff to court, and it's such a shame that we have to consider these kinds of amendments, hanging off what should be a beautiful bill that allows every Australian the chance to marry.

There are important discriminatory issues to be considered, but they should not be hanging off this bill. There is a time to protect charities and a time to protect individuals who are mistreated and harassed by the state for their views, but it's not necessarily in this bill. We shouldn't be using this bill as a stalking horse to advance other quasi-religious concerns when it comes to marriage.

I want to conclude by discussing the many marriage celebrants out there. There are thousands in Queensland—I come from the bible belt of south-east Brisbane—but, of all of those celebrants, I'm yet to meet one who says, 'I have a completely non-religious conviction to traditional marriage.' For goodness sake, you go to a marriage celebrant because you don't want to get married in a church. They are hardly queuing up, for that reason. Those celebrants, if they hold a religious conviction, can go back and connect with their local church. I mean, in my part of the world you can't walk down a street without running into a church. There are plenty of opportunities for that.

Those religious exemptions already exist. I say to a very deep thinking member for Fairfax on this matter: conscience is utterly important, but, in this current world, giving conscience a new non-religious avenue simply allows licence for bigotry. We have existing legislative exemptions. They overwhelmingly cover views around marriage. If you're a celebrant who happens to not have that religious conviction—I'd love to meet that unicorn. If you exist, connect with your local church and you'll be fully covered to continue your work.

Fundamentally, if you are in the business of marrying people, if you are exchanging resources for marrying people, then get over it. Occasionally you might marry a couple that you don't overly like, but in this world you can't discriminate if you don't like someone. The moment you carve out these marriage celebrant exemptions, it’s just like saying the religious exemptions should be expanded to convention facilities and extended to public halls and facilities. It's endless. We have religious convictions; we all understand what they are. They're well supported by both sides of the chamber, and that's where this exemption should stop. For that reason, despite a huge number of my supporters having a different view, I have to vote against this amendment.

An incident having occurred in the gallery

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

Order! This is a tough one, but please understand we're trying to get through this. I want to make sure that all members here and those in the gallery can hear the procedures, so I ask you to knock it back a little bit to allow the parliament to continue and get this bill through.

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

I'm pleased to rise to speak on the amendments moved by the member for Deakin. I will start by confirming that it's my intention to vote for the bill. My electorate voted 58 per cent yes, and 42 per cent no; therefore, I'll be voting yes to the substantive bill.

However, there are some concerns I have with the bill and there are also some concerns I have with the member for Deakin's amendment. My concerns go to the Attorney-General Department's list and a website that is titled 'Finding a marriage celebrant'. Currently, that lists three separate categories that someone can go to. The first category is 'Commonwealth registered marriage celebrants who perform civil ceremonies'. The second category is 'Commonwealth registered marriage celebrants who perform religious ceremonies for independent religious organisations'. And the third category is a list of 'ministers of religion of recognised denominations who perform religious ceremonies'.

What is proposed is that those who come under the original bill, those that come under the second two categories, can refuse to solemnise a same-sex marriage. That is what the bill provides for. It also provides for those in the first category, which is Commonwealth-registered marriage celebrants who perform civil ceremonies, to elect to opt out. It will enable them to also refuse to conduct a same-sex wedding. Now, I am concerned that the government would keep any list of people with a minority view, no matter what that may be. We live in a society today where there is increasing intolerance against people with minority opinions. I am sure all those in the public galleries today would oppose that. We want to live in a society where people are able to express their differences, to say they disagree with mainstream opinion and to do so without fear of harassment or threats. What this bill does is create separate categories that would list Commonwealth-registered marriage celebrants who will perform same-sex marriages and those who won't. I do not believe that is the government's responsibility. I believe it would be far better if there were an opt-in process so that those who wish to perform same-sex weddings opt to be on that list. I do not think it is the government's responsibility to hold a separate list of those who don't.

The other concern I have is that there is a 90-day window that enables those on the first list to opt out. One of the most important things when we talk about freedom of religion is the freedom to change one's religion throughout one's life or to change one's religious beliefs over time. This bill only allows a 90-day window for someone to decide to opt out and be on another list. People must have the right in our society to change their religious beliefs over their life, but that is something that the 90-day window does not allow. I know that these issues are not going addressed by this bill or this amendment, but I would encourage the review by the Hon. Philip Ruddock, the former member for Berowra, to seriously consider these issues. We want to make sure that people in this society are not subject to any form of vilification because they hold opposing views to their fellow Australians. My fear is that what is proposed in this bill will create that opportunity for those civil marriage celebrants who have different opinions on same-sex marriage for religious reasons.

I will leave my remarks there. I hope that all members of the House would give consideration in the future to this list. It is not the government's job to have separate lists of people who hold minority opinions on any single subject.

Michael Sukkar (Deakin, Liberal Party, Assistant Minister to the Treasurer) Share this | Link to this | Hansard source

I want to address a couple of the points that have been raised. In essence, what we're hearing from those who oppose this amendment is that if you have a conscientious, deeply held view on traditional marriage, you will effectively be unable to continue to be a marriage celebrant. That is what we are hearing. That's anathema to me. That is anathema, I think, to people who hold freedoms—freedom of conscience and freedom of thought—very dear. It also is quite a peculiar argument, as I said, that if you have a deeply held religious view you are entitled to continue to be a civil celebrant, but if you have a deeply held secular view you are not. This is a distinction this House should not approve.

I also want to directly address a couple of points by my good friend the member for Brisbane, about the International Covenant on Civil and Political Rights, which I think he referred to. General comment 22 says of article 18:

The right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) in article 18 (1) is far-reaching and profound; it encompasses freedom of thoughts on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others.

Then general comment 22, which specifically addresses his point, provides:

The Committee draws the attention of States parties to the fact that the freedom of thought and the freedom of conscience are protected equally with the freedom of religion and belief.

Again, our Senate select committee accepted that we adhere to these beliefs under article 18 and noted:

General Comment 22 makes the specific point that equal protection is afforded to conscience, and as such any attempt to differentiate on the rights of an individual based on conscience vs religion may be contested

So here we have a Senate committee, made up of every major and minor party in this House, which has accepted that article 18 should not allow for an artificial bifurcation between religious beliefs and deeply held conscientious beliefs—and that is exactly what this bill does. If we don't support this amendment, we are saying we don't adhere to article 18, and, more perversely, we are saying that only those who have deeply held religious beliefs will be entitled to continue as civil celebrants, but those who have deeply held secular beliefs are somehow second-class citizens.

Also, just while I'm up, I want to present a supplementary explanatory memorandum, with a statement of compatibility with human rights, if leave is granted.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

Is there any objection to leave being granted?

Mr Tony Burke (Watson, Australian Labor Party, Manager of Opposition Business (House)) Share this | Link to this | Hansard source

I haven't seen it.

Honourable members interjecting—

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

Briefly, in response to some of the notes made just then in that contribution, I want to draw honourable members' attention to the fact that this idea that we would casually legislate to allow conscience, rather than religious belief, to override antidiscrimination laws is a courageous one that I would suggest requires a lot more thought and consultation than the brief week or so that these amendments have existed. Members should know that doing so, allowing conscience rather than religious belief to override antidiscrimination laws, would exceed the exemptions contained in any federal, state or territory antidiscrimination laws currently across Australia. That's not a trifling thing, Deputy Speaker and honourable members. It's not a mere amendment. This would be a substantial change to the architecture of Australia's antidiscrimination laws, which are currently well balanced. These amendments and this proposal deserve much more careful consideration.

Mr Tony Burke (Watson, Australian Labor Party, Manager of Opposition Business (House)) Share this | Link to this | Hansard source

I don't intend to make a speech in detail on the amendments in any way; I simply want to refer to the issue that was raised by the member for Barker—

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

Deakin.

Mr Tony Burke (Watson, Australian Labor Party, Manager of Opposition Business (House)) Share this | Link to this | Hansard source

sorry, Deakin; I apologise for that. Given that it appears to be an explanatory memorandum, we're not going to object to it being tabled, but I do need to flag for people that we are dealing with a conscience vote. The ordinary circumstance of me being able to provide leave on behalf of a whole lot of people, when we've got a 67-page document which I haven't read and none of us have read, is—just to flag for future tablings—a difficult ask. I appreciate that this is the first time I've raised that difficulty for the House. We'll grant leave for this to be tabled, but there are problems with the tabling of documents today in a general sense that I just need people to be aware of. I'm not in a position ordinarily to be able to give leave on behalf of the whole opposition on a conscience vote issue. But for this I can indicate, having checked, that leave is granted.

Michael Sukkar (Deakin, Liberal Party, Assistant Minister to the Treasurer) Share this | Link to this | Hansard source

I thank the Manager of Opposition Business for allowing that. We've tabled a document which obviously outlines in detail some of the amendments.

Again in response to my good friend the member for Brisbane: we are specifically, in this case, making a change that is not trifling, in its very intention, and a range of amendments that we'll see today are actually intended to ensure that the perverse outcomes that occur under state antidiscrimination laws—such as the Archbishop of Hobart being dragged in front of an antidiscrimination tribunal for circulating a booklet that just talked about a Catholic teaching of marriage—can't occur. That is precisely what we are seeking to do. These changes, which say that conscientiously held secular beliefs should not be inferior to conscientiously held religious beliefs, are anchored by our obligations under article 18. It has been accepted by this House, by each of the major parties and the minor parties, that you cannot provide primacy to one without the other. This is a very minor amendment.

Can I just in a broader sense say that we're in no way trying to frustrate in essence what the Australian people have said, and that, overwhelmingly, is that they want same-sex couples to marry. Liberals and Nationals have a conscience vote on this—unlike the Labor Party, who have bound themselves to not supporting any amendments—so we have to defend these fundamental freedoms. To the extent that we can simultaneously ensure we're meeting the requirements of the postal survey and protecting those things we hold dear, we should do so. These changes are anchored in our obligations under article 18, and both sides of the House and the minor parties have agreed that you cannot give primacy to one without the other. It would be a very sad day if this House were now saying that, if you're a civil celebrant with a secular conscientiously held belief in traditional marriage, you're done. I would expect that from the member for Melbourne, and I would expect that from some parts of the Labor Party, but I certainly wouldn't expect that from our side of politics.

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

I note the continual reference to international treaties as the basis for arguments. Having served as Australia's Human Rights Commissioner, and not being a big fan of international treaties, I find it odd that those who might ordinarily oppose international treaties raise them as the basis of an argument. It's the sort of thing would I expect from the Marxist member for Melbourne, but less so from those on the Liberal side. But let's keep the spirit right. The key point is that, if we're going to use human rights as the basis of arguments for why different amendments should be included, we should understand the principles that sit at the heart of them. The freedom of conscience is the unlimited right for you to hold an opinion and to think, to be able to hold that view. Once you get into the point of action, it has always been limited by law. Article 18.3 of the International Covenant on Civil and Political Rights—not that I think this should be the basis of law—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.

Considering that the fundamental issue before us today is the freedom to marry, it is, as far as I'm concerned, a very legitimate restriction.

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

I appreciate the thoughts of the previous speaker, the member for Goldstein, and those who are opposing this, but there is one consideration that I don't know has been taken into account, and that is that there are many churches and other religions which under Commonwealth law do not have status to provide marriage certificates. They are small churches. Some of them are very independent churches, with just a single pastor and his congregation. Often, the ministers of those particular denominations or independent churches go out individually and apply for a civil celebrants licence because it is an easier thing to do; there is much less red tape than going through the process of getting the Attorney-General to look at covering them as a religious organisation. A lot of them are evangelical churches with strongly held biblical beliefs around marriage. In knocking this amendment down, you're going to be saying to all of those pastors that they can no longer abide by the principles and articles of faith of their religion. They are going to have to give away the right to marry. That is basically what you're saying. Those pastors are no longer going to be able to marry, because in doing so they're going to put themselves and, I guess, their entire congregations at risk of litigation and at risk of being hauled before the Human Rights Commission. I've got to say it's a very dangerous area that we've slid into if that is indeed what this House wants to do. We're effectively then saying that even for a religion, even for a pastor, there is no out for them unless they're covered by something that's very difficult to get, and that's the Attorney-General's exemption.

I see some members shaking their heads, but it is actual fact: it is true. I know of several pastors in my own electorate that have arrangements like this. They are civil celebrants in their own right. They do not belong to a bigger denomination, and right now, if the House knocks back this amendment, they are going to be forced to perform same-sex marriages or they're going to have to give up that licence. So there's no freedom of religion here for those people. I take the argument—I don't agree with it, but I take it—of the previous speaker, the member for Goldstein, about freedom of religion. Well, I tell you what: if that's freedom of religion, it's not worth the paper it's written on.

If our freedom of religion is simply leaving our faith behind at the church door, the synagogue door or the mosque door and not actually putting it in practice in our own lives—particularly when it comes to ministers of religion and what they have to do in the course of their jobs—then this House is effectively eroding freedom of religion, freedom of faith and freedom to act out in the conscience of your faith. This is even for those civil celebrants who, for whatever reason, decide they're going to be civil celebrants but are Christians. Again, I know people like that in my own electorate. Their freedoms are going to be eroded here.

I would say: think very carefully about what you're going to do. It goes further than what you think. In doing this, you're going to be ensuring that there are a lot of people who would otherwise support this bill that will no longer be able to do so.

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

I want to speak briefly on this, particularly in response to that last contribution. But I will say something up-front, because the assertion was made by the mover that voting against this amendment was voting against freedom of conscience.

There are a number of reasons which lead me to vote against this amendment. First, this amendment basically creates two separate definitions of marriage. When we're talking after a postal survey where so many Australians wanted equality of marriage, I think that to say there are two different types of marriage is fundamentally wrong. Marriage will be marriage under every circumstance under this act and that's how it should be.

Secondly, in relation to celebrants and this whole issue of religious freedoms, I want to make one key point which flows through many of the amendments that are presented today. The right to religious freedom is expressed as absolute, but, in all of these amendments, the right to religious freedom only extends as far as being able to discriminate against same-sex couples wanting to be married. For example, the traditional marriage celebrant proposed by this amendment can't decide that he or she doesn't support interfaith marriages, or can't decide that they want to refuse to marry divorcees. It's only for same-sex couples where the right to religious freedom is extended. I think that is why it's regarded as so discriminatory.

Particularly in relation to the point that the previous speaker made, I want to clarify that section 5(1) of the act as it currently stands allows for the recognition of ministers from small and emerging churches. It allows people who are not ministers of recognised churches to so register. That means that they will be covered and allowed to exercise the rights of ministers.

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

The question is that the amendment moved by the member for Deakin be agreed to.

Andrew Hastie (Canning, Liberal Party) Share this | Link to this | Hansard source

by leave—I move revised amendments (1) to (11) as circulated in my name together:

(1) Clause 1, page 1 (lines 14 and 15), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment (Definition and Protection of Freedoms) Act 2017".

(2) Clause 2, page 2 (table item 2), omit the table item, substitute:

(3) Schedule 1, item 1, page 4 (lines 4 to 16), omit the item, substitute:

1 After section 2

Insert:

2A Objects of this Act

(1) It is an object of this Act to create a legal framework that:

(a) provides that marriage means:

  (i) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or

  (ii) the union of 2 people to the exclusion of all others, voluntarily entered into for life; and

(b) fulfils Australia's international obligations, and addresses matters of international concern, including:

  (i) protecting the rights of freedom of thought, conscience, religion, expression and association in relation to the holding, expressing, or acting on, certain beliefs; and

  (ii) preventing discrimination against people and entities in relation to holding, expressing, or acting on, certain beliefs; and

  (iii) making it unlawful for people or entities to be deprived of benefits, or to be subjected to detriments, obligations or sanctions, for exercising freedom of thought, conscience, religion, expression and association in holding, expressing, or acting on, certain beliefs; and

(c) protects freedoms described in subparagraphs (b) (i), (ii) and (iii); and

(d) eliminates, as far as possible, discrimination against persons or entities on the ground of religious or conscientious belief; and

(e) ensures, as far as practicable, that everyone has the same rights to equality, regardless of religious or conscientious belief, as the rest of the community.

Note: The objects of this Act relate to the marriage power and, to the extent that the objects provide for the protection of freedoms, to the external affairs power.

(2) For the purposes of paragraph (1) (b), Australia's international obligations include obligations under the following:

(a) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23), including Articles 18, 19 and 22;

(b) the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40), including Article 5;

(c) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5), including Article 13;

(d) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4).

(3) In addition, the elimination of intolerance and discrimination on the basis of religion or belief, including as evidenced by the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by the General Assembly of the United Nations on 25 November 1981 (resolution 36/55) is a matter of international concern.

2B Alternative constitutional basis for Part VAA

(1) Without prejudice to its effect apart from this section, Part VAA also has effect as provided by this section.

Corporations power

(2) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision:

(a) confined to a person that is a corporation (within the meaning of paragraph 51(xx) of the Constitution); or

(b) confined to a person:

  (i) who is an officer or employee of such a corporation; and

  (ii) in connection with the person's duties as an officer or employee that relate to the trading activities of the corporation as a trading corporation or the financial activities of the corporation as a financial corporation (as the case may be).

External affairs power

(3) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to giving effect to the international obligations and matters of international concern including those mentioned in section 2A.

Trade and commerce power

(4) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place in the course of, or in relation to, trade or commerce (within the meaning of paragraph 51(i) of the Constitution).

(5) Subsection (4) does not apply to the extent (if any) that its application would infringe section 92 of the Constitution.

Note: Section 92 of the Constitution requires trade among the States to be absolutely free.

Territories power

(6) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place wholly or partly in a Territory.

Telecommunications power

(7) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct is engaged in using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).

Banking power

(8) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place in the course of, or in relation to, banking (within the meaning of paragraph 51(xiii) of the Constitution).

Insurance power

(9) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place in the course of, or in relation to, insurance (within the meaning of paragraph 51(xiv) of the Constitution).

(4) Schedule 1, page 5 (after line 4), after item 2, insert:

2A Subsection 5(1)

Insert:

Commonwealth authority means:

(a) a Minister; or

(b) an Agency within the meaning of the Public Service Act 1999; or

(c) a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth enactment, not being an organisation that is registered under the Fair Work (Registered Organisations) Act 2009 or a branch of such an organisation; or

(d) a body established or appointed by the Governor-General, or by a Minister, otherwise than by or under a Commonwealth enactment; or

(e) a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth enactment, other than a person who, by virtue of holding that office, is the Secretary of a Department; or

(f) a person holding or performing the duties of an appointment, being an appointment made by the Governor-General, or by a Minister, otherwise than under a Commonwealth enactment; or

(g) an incorporated company over which the Commonwealth, or a body or authority referred to in paragraph (a), (b), (c), (d), (e) or (f), is in a position to exercise control;

(h) a federal court; or

  (i) the Australian Federal Police; or

(j) a Norfolk Island agency as defined in the Privacy Act 1988.

entity: see section 5AA.

law, unless otherwise stated to the contrary, includes:

(a) a Commonwealth law; and

(b) a law of a State or Territory.

(5) Schedule 1, page 5 (after line 12), after item 4, insert:

4A Subsection 5(1)

Insert:

public authority means:

(a) a Commonwealth authority;

(b) a State or Territory authority;

(c) a local government body established by or under the law of the Commonwealth, a State or Territory;

(d) an officer or employee of any of the authorities mentioned in paragraph (a), (b) or (c), when acting in the capacity of an officer or employee of an authority;

(e) a person or entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of another public authority (whether under contract or otherwise);

(f) a person or entity declared by the regulations to be a public authority.

Note: A non-government school in educating students may be exercising functions of a public nature but as it is not doing so on behalf of the government it is not a public authority.

relevant belief:

(a) for a person: see subsection 5AC(1); and

(b) for an entity: see subsection 5AC(2).

relevant marriage belief:

(a) for a person: see subsection 5AB(1); and

(b) for an entity: see subsection 5AB(2).

religious body or organisation: an entity is a religious body or organisation if:

(a) the entity is a body established for religious purposes to which section 37 of the Sex Discrimination Act 1984 applies; or

(b) the entity is an educational institution established for religious purposes to which section 38 of the Sex Discrimination Act 1984 applies.

(6) Schedule 1, page 5 (after line 17), after item 5, insert:

5A Subsection 5(1)

Insert:

State or Territory authority means:

(a) a State or Territory Minister; or

(b) a Department of State of a State or Territory; or

(c) a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a law of a State or Territory, other than an association of employers or employees that is registered or recognised under a law of a State or Territory dealing with the resolution of industrial disputes; or

(d) a body established or appointed, otherwise than by or under a law of a State or Territory, by:

  (i) a Governor of a State; or

  (ii) the Australian Capital Territory Executive; or

  (iii) the Administrator of the Northern Territory; or

  (iv) a State or Territory Minister; or

(e) a person holding or performing the duties of an office established by or under, or an appointment made under, a law of a State or Territory, other than the office of head of a State or Territory Department (however described); or

(f) a person holding or performing the duties of an appointment made, otherwise than under a law of a State or Territory, by:

  (i) a Governor of a State; or

  (i) the Australian Capital Territory Executive; or

  (iii) the Administrator of the Northern Territory; or

  (iv) a State or Territory Minister; or

(g) an incorporated company over which the State or Territory, or a body or authority referred to in paragraph (a) (b) (c) (d) (e) or (f), is in a position to exercise control; or

(h) a State or Territory court; or

  (i) a State or Territory police force.

5B After section 5

Insert:

5AA Meaning of entity

(1) For the purposes of the Act, an entity means:

(a) an entity (other than an individual) within the meaning of section 184-1 of the ANew Tax System (Goods and Services Tax) Act 1999; and

(b) a non-entity joint venture within the meaning of section 195-1 of the ANew Tax System (Goods and Services Tax) Act 1999.

Note: The term entity includes body corporates, body politics, partnerships, unincorporated associations or other bodies of persons, trusts and superannuation funds.

(2) For the purposes of subsection (1), an entity is an entity regardless of whether:

(a) the entity is for-profit or not-for-profit; or

(b) the entity is a religious body or organisation; or

(c) the entity operates to make a profit or not.

5AB Meaning of relevant marriage belief

(1) A person holds a relevant marriage belief if the person holds:

(a) a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or

(b) any one or a combination of genuine religious or conscientious beliefs that are constitutive of, supporting of or a corollary of the belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, which beliefs may include, without limitation, any of the following beliefs:

  (i) a marriage that is not a union of a man or a woman is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person;

  (ii) the family structure of a man and a woman united in marriage with their children is a fundamental building block of human society, and this family structure has significant advantages for the nurture and raising of children;

  (iii) sexual relations should only occur within a marriage, understood as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life;

  (iv) the gender difference and complementarity of men and women is an inherent and fundamental feature of human society and is reflected in the gender difference and complementarity of a man and a woman united in marriage;

  (v) a fundamental feature of a marriage between a man and a woman is the modelling for children born from, or raised in, that marriage of the gender difference and complementarity of the man and the woman;

but for the avoidance of doubt, does not include the belief mentioned at paragraph 5AC(1) (b).

(2) An entity holds a relevant marriage belief if the entity has adopted:

(a) a belief mentioned in paragraph (1) (a); or

(b) one or more beliefs mentioned in paragraph (1) (b);

as beliefs the entity holds.

5AC Meaning of relevant belief

(1) A person holds a relevant belief if the person holds:

(a) a relevant marriage belief; or

(b) a genuine religious or conscientious belief that:

  (i) a same-sex relationship is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person; or

  (ii) the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth; or

  (iii) any one or a combination of genuine religious or conscientious beliefs that are constitutive of, supporting of or a corollary of a belief mentioned in subparagraphs (1) (b) (i) or (1) (b) (ii).

(2) An entity holds a relevant belief if the entity has adopted:

(a) a belief mentioned in paragraph (1) (a); or

(b) one or more beliefs mentioned in paragraph (1) (b);

as beliefs the entity holds.

5AD Determining when a belief is held etc.

(1) For the purposes of this Act, a person or entity holds a genuine belief, or holds a genuine religious or conscientious belief, or genuinely believes, if the holding of the belief (inclusive of the person's or entities beliefs as to the actions, refusals, omissions or expressions that are consistent with, a consequence of, made in connection with, based upon, constitutive of, supporting of, or a corollary of that belief)is not fictitious, capricious or an artifice.

(2) For the purposes of subsections 5AB(2) and 5AC(2), but without limiting those subsections, an entity may state or adopt a belief as a belief the entity holds by:

(a) including the belief in its governing documents, organising principles, statement of beliefs or statement of values; or

(b) adopting principles, beliefs or values of another entity which include the belief;

(c) adopting principles, beliefs or values from a document or source which include the belief; or

(d) acting consistently with that belief.

(3) For the purposes of this Act, if an authorised celebrant, chaplain or an authorised officer holds a relevant marriage belief or a relevant belief, then in holding, expressing or acting on that belief:

(a) whether or not another person who is to be married is a man or a woman is to be determined by the authorised celebrant, chaplain or authorised officer; and

(b) in determining whether the other person is a man or a woman, if the authorised celebrant, chaplain or authorised officer reasonably believes and genuinely believes that the current legal status of the other person as a man or a woman is different from the legal status of the other person as a man or a woman at the time of the other person's registration following the other person's birth, the authorised celebrant, chaplain or an authorised officer may disregard the current legal status of the other person's sex or gender, or their gender identity or intersex status.

5C After section 5A

Insert:

5B Act binds Crown

(1) This Act binds the Crown in each of its capacities.

(2) This Act does not make the Crown liable to be prosecuted for an offence.

(7) Schedule 1, page 5 (after line 17), after proposed item 5C, insert:

5D Section 6 (heading)

Repeal the heading, substitute:

6 Interaction of Act with State and Territory laws

Act (other than Part VAA) not to exclude operation of certain State and Territory laws

5E Section 6

Omit "This Act", substitute "(1) This Act (other than Part VAA)".

5F At the end of section 6

Add:

Part VAA of this Act is intended to " cover the field "

(2) It is the intention of Parliament that, in order to recognise the protections, rights, privileges and entitlements of a person or entity that holds a relevant belief or a relevant marriage belief and to ensure that such protections, rights, privileges and entitlements are recognised equally and without discrimination in all States and Territories, Part VAA operates:

(a) to cover the field in relation to those protections, rights, privileges and entitlements; and

(b) to provide a complete, exhaustive and exclusive statement of the law relating to those protections, rights, privileges and entitlements; and

(c) to exclude and limit the operation of the laws of the States and Territories in relation to those protections, rights, privileges and entitlements.

(3) For the avoidance of doubt, and without limiting subsection (2), if a protection, right, privilege or entitlement granted, or a limitation provided for under Part VAA of this Act, is inconsistent with a protection, right, privilege or entitlement granted, or a limitation provided for, under a law of a State or Territory, this law shall prevail, and the State or Territory law shall, to the extent of the inconsistency, be invalid.

(4) In addition, proceedings must not be brought against a person, and a person must not be convicted of an offence under a State or Territory law or otherwise be found to have contravened a provision of a State or a Territory law, if:

(a) a law of a State or Territory deals with a matter dealt with by Part VAA of this Act; and

(b) an act or omission by a person that constitutes an offence against, or a contravention of, that law is permitted by Part VAA of this Act.

(8) Schedule 1, page 10 (after line 6), after item 17, insert:

17A At the end of section 43

Add "(subject to Part VAA)".

(9) Schedule 1, page 15 (after line 26), after item 58, insert:

58A After Part VA

Insert:

Part VAA—Freedom of thought, conscience, religion, expression and association in relation to holding certain beliefs

Division 1—Protection of freedoms

88J Freedom to hold or express relevant belief

(1) Subject to subsections (2) and (3), a person or an entity has the right to freedom of thought, conscience, religion or belief in relation to holding or expressing a relevant belief, including the right to have or adopt that belief.

(2) Despite any law, it is lawful for a person or an entity to hold or lawfully express a relevant belief.

(3) A reference in this section to lawful expression of a relevant belief:

(a) does not include expression that would constitute an offence against or a contravention of, a law;

(b) for the avoidance of doubt does include expression that is not an offence against, or a contravention of, a law because of section 88KA.

88JA Freedom to hold, express or act on relevant marriage belief

(1) Subject to subsections (2) and (3), a person or an entity has the right to freedom of thought, conscience, religion or belief in relation to holding, expressing, or acting on, a relevant marriage belief, including:

(a) the right to have or adopt that belief; and

(b) the right to manifest that belief:

  (i) individually or in community with others; and

  (ii) in public or private; and

  (iii) in worship, observance, practice or teaching; and

  (iv) in any action or refusal to act.

Note: For the purposes of subparagraph (1) (b) (iv), examples include acting, or refusing to act, in the course of engaging in any of the following for the purposes of preparing for, solemnising or celebrating a marriage:

(a) a for-profit or a not-for-profit business;

(b) duties as an employer or an employee;

(c) activities related to community and public affairs.

(2) Despite any law, it is lawful for a person or an entity to hold or lawfully express a relevant marriage belief and engage in lawful conduct which manifests a relevant marriage belief.

(3) A reference in this section to lawful expression and lawful conduct:

(a) does not include expression or conduct that would constitute an offence against or a contravention of, a law;

(b) for the avoidance of doubt does include expression or conduct that is not an offence against, or a contravention of, a law because of section 88KA.

(4) This section does not imply any limitation on the rights of a person or entity to act on a relevant belief.

88K Protection from unfavourable treatment

(1) Despite any law it is unlawful for a public authority or a relevant person or entity within the meaning of subsection (2) to treat or propose to treat another person or entity unfavourably, or subject or propose to subject the person or entity to any detriment or disadvantage, obligation or sanction, or denial of any benefit, whether directly or indirectly, including, without limitation, in relation to any of the following:

(a) the employment of a person;

(b) the engagement of a contractor or volunteer;

(c) academic, trade or professional qualifications, accreditation or licensing;

(d) accommodation;

(e) education;

(f) the provision of economic benefits, including grants, funding or subsidies;

(g) the supply or acquisition of goods, services or facilities;

(h) the assessment or selection of a person or entity to be a supplier or acquirer of goods or services or facilities;

  (i) the administration or enforcement of Commonwealth, State, Territory or local government laws and programs, including the granting of funding under those laws or programs;

because the other person or entity:

(j) holds or expresses a relevant belief other than a relevant marriage belief; or

(k) holds or expresses a relevant marriage belief; or

(l) engages in any lawful act or lawfully refuses or omits to engage in an act because the person or entity genuinely believes that the act or refusal or omission is consistent with a relevant marriage belief; or

(m) has a characteristic that appertains generally to a person or entity described in paragraphs (j), (k) or (l); or

(n) has a characteristic that is generally imputed to a person or entity described in paragraphs (j), (k) or (l); or

(o) associates with a person or entity described in paragraphs (j), (k) or (l) or associates with a group or is a member of a group which is an entity described in paragraphs (j), (k) or (l) or which includes a person or entity described in paragraphs (j), (k) or (l); or

(p) employs or engages as a contractor or volunteer (or has not refused to employ or engage as a contractor or volunteer) a person who is described in paragraphs (j), (k) or (l); or

(q) provides goods, services, funding, subsidies or other economic benefits to a person or entity who is described in paragraphs (j), (k) or (l) (or has not refused to do so); or

(r) acquires goods, services, funding, subsidies or other economic benefits from a person who is described in paragraphs (j), (k) or (l) (or has not refused to do so).

Note: Examples of detrimental action made unlawful by section 88K include the following:

(a) A public authority, such as a government agency, refuses to appoint or hire or promote or dismisses a person, employee or contractor because that person holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.

(b) A public authority, such as a government agency or private sector body exercising professional or trade accreditation functions on behalf of government or under statutory authority refuses to accredit or imposes disadvantageous conditions on an accreditation of a person or entity because the person holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.

(c) A public authority such as a local government or State or Territory or Commonwealth Government department or agency refuses to provide a grant or funding or provides it on disadvantageous conditions because the grant applicant holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.

(d) A government education authority, including a government school, or a private school when acting on the instruction of or in accordance with its funding contract with a government authority, suspends or expels a student or bans or refuses access to facilities or funding to a student club because the student or the student club holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.

(e) A public authority refuses to supply to or acquire from a person or entity goods or services or facilities or discriminates against the person or entity in a tender process because the person or entity holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.

(2) In this section, a relevant person or entity means a person or entity which engages in the conduct described in subsection (1) because it is caused or induced to do so by a public authority, including being caused or induced to do so:

(a) by a request, instruction or expectation of a public authority; or

(b) by a condition of a contract or arrangement with a public authority; or

(c) by a condition of direct or indirect funding by a public authority; or

(d) by a condition of a licence or permission granted by a public authority.

(3) It is unlawful for a public authority to cause or induce a relevant person or entity to engage in conduct described in subsection (1), including in the ways described in subsection (2).

(4) A request, instruction, expectation or condition of the following kind is void to the extent that it would cause or induce the person or entity to engage in conduct described in subsection (1):

(a) a request, instruction or expectation of a public authority directed to a person or entity;

(b) a condition of a contract or arrangement between a public authority and a person or entity;

(c) a condition of direct or indirect funding by a public authority to a person or entity;

(d) a condition of a licence or permission granted by a public authority to a person or entity.

(5) The reference in paragraph (1) (l) to engaging in a lawful act or lawfully refusing or omitting to engage in an act:

(a) does not include engaging in an act, refusal or omission that would constitute an offence against, or a contravention of, a law; and

(b) for the avoidance of doubt does include engaging in an act, refusal or omission that is not an offence against, or a contravention of, a law because of section 88KA.

88KA Protection from certain laws when expressing or acting on a relevant marriage belief or a relevant belief

Relevant marriage belief

(1) Subject to subsection (10), despite any law, where:

(a) a person or entity holds a relevant marriage belief; and

(b) the person or entity expresses a statement or opinion (in any manner) which the person or entity genuinely believes is consistent with the relevant marriage belief; and

(c) the expression of the statement or opinion would not be reasonably likely, in all the circumstances, to threaten or harass another person or group of persons on the basis of the sexual orientation, gender identity, intersex status, marital or relationship status or the family responsibilities of the person or persons in the group;

the expression of the statement or opinion does not constitute an offence against or contravention of a law prohibiting vilification or a law which makes it unlawful to offend, humiliate, intimidate, insult or ridicule another person.

(2) For the purposes of subsection (1) a statement or opinion may be expressed in any manner including by acts, words, sounds, images or writing.

(3) Subject to subsection (10), despite any law, where:

(a) a person or entity holds a relevant marriage belief; and

(b) the person or entity engages in conduct, other than an expression mentioned in subsection (1), which the person or entity genuinely believes is consistent with the relevant marriage belief;

the conduct does not contravene a law of a State or Territory prohibiting discrimination.

(4) For the purposes of subsection (3), conduct includes engaging in an act, or refusing or omitting to engage in an act.

Relevant belief

(5) Subject to subsection (10), despite any law, where:

(a) a person or entity holds a relevant belief; and

(b) the person or entity expresses a statement or opinion (in any manner) which the person or entity genuinely believes is consistent with the relevant belief; and

(c) the expression of the statement or opinion would not be reasonably likely, in all the circumstances, to threaten or harass another person or group of persons on the basis of the sexual orientation, gender identity, intersex status, marital or relationship status or the family responsibilities of the person or persons in the group;

the expression of the statement or opinion does not constitute an offence against or contravention of a law prohibiting vilification or a law which makes it unlawful to offend, humiliate, intimidate, insult or ridicule another person.

(6) For the purposes of subsection (5) a statement or opinion may be expressed in any manner including by acts, words, sounds, images or writing.

(7) Subject to subsection (10), despite any law, where:

(a) a person or entity holds a relevant marriage belief; and

(b) the person or entity engages in conduct, other than an expression mentioned in sub-section (1), which the person or entity genuinely believes is consistent with the relevant marriage belief;

the conduct does not contravene a law of a State or Territory prohibiting discrimination.

(8) For the purposes of subsection (7), conduct includes engaging in an act, or refusing or omitting to engage in an act.

(9) The inclusion of relevant marriage belief within relevant belief at section 5AC does not imply any limitation on the rights of a person or entity to act on a relevant marriage belief.

(10) Nothing in this section prevents a person or entity committing an offence in relation to discrimination or contravening a prohibition on discrimination in the Sex Discrimination Act 1984 if the person or entity engages in conduct which under that Act is unlawful discrimination against another person.

88KB Determining what is a public authority

(1) In determining if a function is of a public nature within the meaning of paragraph (e) of the definition of public authority in subsection 5(1) the factors that may be taken into account include:

(a) that the function is conferred on the entity by or under a statutory provision;

(b) that the function is connected to or generally identified with functions of government;

(c) that the function is of a regulatory nature;

(d) that the entity is publicly funded to perform the function.

(2) To avoid doubt:

(a) the factors listed in subsection (1) are not exhaustive of the factors that may be taken into account in determining if a function is of a public nature; and

(b) the fact that one or more of the factors set out in subsection (1) are present in relation to a function does not necessarily result in the function being of a public nature.

(3) For the purposes of paragraph (e) of the definition of public authority in section 5(1) an entity may be acting on behalf of the public authority even if there is no agency relationship between the entity and the public authority.

(4) For the purposes of paragraph (e) of the definition of public authority in section 5(1) the fact that an entity is publicly funded to perform a function does not necessarily mean that it is exercising that function on behalf of the public authority

88L Scope of rights—expressing a relevant marriage belief or a relevant belief

The right of a person or an entity that holds a relevant marriage belief or a relevant belief to express that belief includes, but is not limited to, the freedom to seek, receive and impart information and ideas of all kinds, either orally, in writing or in print, in the form of art, or through any other medium.

88P Requiring a person to express, publish, associate with or support statements or opinions

(1) Despite any law, it is unlawful for a person or entity to:

(a) require another person or entity to engage in relevant conduct in relation to a statement or opinion; or

(b) treat another person or entity unfavourably because the other person or entity refuses or omits to engage in relevant conduct in relation to a statement or opinion;

if the other person or entity holds a relevant belief and genuinely believes that the statement or opinion is not consistent with that belief.

(2) In subsection (1) relevant conduct in relation to a statement or opinion means:

(a) expressing, publishing or disseminating the statement or opinion;

(b) producing or distributing a thing which expresses or supports or endorses the statement or opinion;

(c) associating the second person or entity with the statement or opinion; or

(d) endorsing or supporting the statement or opinion.

(3) Despite any law, it is lawful for a person or entity to refuse or fail to comply with a requirement mentioned in subsection (1).

Note: Examples of unlawful conduct under section 88P include any one or more requirements that a printer, signwriter, artisan, film-maker or media business which holds a relevant marriage belief or a relevant belief express a statement or opinion or publish or produce a poster, sign, video or media content which expresses or endorses a statement or opinion that they genuinely believe is not consistent with that belief.

88Q Religious bodies or organisations

(1) Despite any law, a religious body or organisation may engage in a lawful act, or lawfully refuse or omit to engage in an act, if the body or organisation:

(a) is an entity that holds a relevant marriage belief or a relevant belief; and

(b) genuinely believes that the act, refusal or omission is consistent with the holding of that belief.

(2) The reference in subsection (1) to engaging in a lawful act or lawfully refusing or omitting to engage in an act:

(a) does not include engaging in an act, refusal or omission that would constitute an offence against, or a contravention of, a law;

(b) for the avoidance of doubt does include engaging in an act, refusal or omission that is not an offence against, or a contravention of, a law because of section 88KA.

88R Right not to attend class if material taught is not consistent with a relevant marriage belief or a relevant belief

(1) This section applies to a person who:

(a) holds a relevant marriage belief or a relevant belief; and

(b) either:

  (i) is a parent or guardian of a student of an educational institution who has not attained the age of 16; or

  (ii) is a student of an educational institution who has attained the age of 16.

(2) Despite any law, if a person genuinely believes that material taught by the educational institution in a class is not consistent with the relevant marriage belief or relevant belief held by the person, the person may request the principal of the educational institution to:

(a) if the person is a parent or guardian of a student—release the student from attendance of that class and any subsequent class in which that material is taught (or the relevant parts of those classes); and

(b) if the person is a student—be released from attendance of that class and any subsequent class (or the relevant parts of those classes) in which that material is taught.

(3) The request must:

(a) be in writing; and

(b) be made at least 24 hours before the start of the first class in respect of which the request is made.

(4) The principal must release the student from the class (or the relevant parts of a class), and any subsequent class, if the principal is satisfied that the request has been made by the person on the basis that the person holds a relevant marriage belief or a relevant belief.

(5) Where a student is released from a class (or the relevant parts of a class) the principal must take all reasonable steps to arrange adequate supervision of the student during the period of that release.

(6) Where an educational institution proposes to teach or present material that is likely to be objectionable to a person who holds a relevant marriage belief or a relevant belief, the institution must:

(a) notify the person in writing at least a week in advance of the day of the first relevant class that:

  (i) the class or classes will contain that material; and

  (ii) the student has the right to be released from the class or classes or the relevant part of the classes; and

(b) ensure that the material is taught in a single class or as few classes as is possible.

Division 2—Offences

88S Victimisation

(1) A person commits an offence if the person commits an act of victimisation against another person.

Penalty: 25 penalty units.

(2) For the purposes of subsection (1), a person is taken to have committed an act of victimisation against another person if the person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

(a) has made, or proposes to make, a complaint under the Australian Human Rights Commission Act 1986; or

(b) has brought, or proposes to bring, proceedings under that Act or under this Part; or

(c) has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under that Act; or

(d) has attended, or proposes to attend, a conference held under that Act; or

(e) has appeared, or proposes to appear, as a witness in a proceeding under that Act or under this Part; or

(f) has reasonably asserted, or proposes to assert, any rights of the person or of any other person under that Act or under this Part; or

(g) has made an allegation that a person has done an act that is in contravention of or unlawful under a provision of this Part;

or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g).

(3) It is a defence to a prosecution for an offence under subsection (1) constituted by subjecting, or threatening to subject, a person to a detriment on the ground that the person has made an allegation that another person had done an act that was unlawful by reason of a provision of Division 1 of this Part if it is proved that the allegation was false and was not made in good faith.

Division 3—Remedies

Subdivision A—Civil enforcement

88T Actions for loss or damage

(1) A person:

(a) who suffers loss or damage; or

(b) who is detrimentally affected by the conduct of another person; or

(c) whose rights are interfered with;

because another person contravenes, or was involved in contravening, a provision of Part VAA of this Act may bring an action in a court of competent jurisdiction to recover the amount of any loss or damage arising from the contravention from the other person.

(2) An action mentioned in subsection (1) may be brought by:

(a) an interested person; or

(b) a person acting on behalf of an interested person.

(3) An action under subsection (1) may only be begun within 3 years after the day on which the cause of action arose.

(4) This section does not affect any right or liability that a person has under any other law.

(5) For the purposes of this section, a person is involved in a contravention if, and only if, the person has:

(a) aided, abetted, counselled or procured the contravention; or

(b) has induced, whether by threats or promises or otherwise, the contravention; or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d) has conspired with others to effect the contravention.

88U Injunctions for contravention of this Act

Application for injunctions

(1) If a person has engaged, engages or proposes to engage in conduct consisting of an act or omission that constitutes an offence or other contravention of Part VAA of this Act, either of the following persons may apply to a court of competent jurisdiction for an injunction under subsection (2) or (3):

(a) an interested person;

(b) a person acting on behalf of an interested person.

Prohibitory injunctions

(2) If a person has engaged, is engaging or is proposing to engage in conduct constituting an offence or other contravention of Part VAA of this Act, the court may grant an injunction restraining the person from engaging in the conduct. The court may grant the injunction:

(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

(b) whether or not the person has previously engaged in conduct of that kind.

Mandatory injunctions

(3) If:

(a) a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail to do an act; and

(b) the refusal or failure did, does or would constitute an offence or other contravention of Part VAA of this Act;

the court may grant an injunction requiring the person to do the act. The court may grant the injunction:

(c) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do the act; and

(d) whether or not the person has previously refused or failed to do the act.

Interim injunctions

(4) Before deciding an application for an injunction under this section, the court may grant an interim injunction:

(a) restraining a person from engaging in conduct; or

(b) requiring a person to do an act.

Discharging or varying injunctions

(5) On application, the court may discharge or vary an injunction.

No undertakings as to damages if applicant is prescribed person

(6) A person cannot be required, as a condition of granting an interim injunction, to give an undertaking as to damages.

Powers conferred are in addition to other powers of the court

(7) The powers conferred on a court by this section are in addition to (and do not limit) any other powers of the court.

88V Court may make other orders

(1) A court of competent jurisdiction may make any other order (including a declaratory order) it thinks fit if a person or entity contravenes Part VAA of this Act.

(2) The court may make an order under this section only on application by:

(a) an interested person; or

(b) a person acting on behalf of an interested person.

(3) An order under this section may be enforced as if it were a judgment of the Court.

(4) Without limiting the generality of subsection (1), where, in a proceeding instituted under this Part, the Court finds that a person who is a party to the proceeding has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in contravention of a provision of Part VAA, the Court may, whether or not it grants an injunction under section 88U or makes an order under section 88T, make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in subsection (5) of this section) if the Court considers that the order or orders concerned will compensate the first-mentioned person in whole or in part for the loss or damage or will prevent or reduce the loss or damage.

(5) The orders referred to in subsection (4) are:

(a) an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the Court thinks fit, to have been void ab initio or at all times on and after such date before the date on which the order is made as is specified in the order;

(b) an order varying such a contract or arrangement in such manner as is specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date before the date on which the order is made as is so specified;

(c) an order refusing to enforce any or all of the provisions of such a contract;

(d) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to refund money or return property to the person who suffered the loss or damage;

(e) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage;

(f) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his or her own expense, to repair, or provide parts for, goods that had been supplied by the person who engaged in the conduct to the person who suffered, or is likely to suffer, the loss or damage; and

(g) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his or her own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage.

Note: Section 88V is based on section 87 of the Competition and Consumer Act 2010.

88VA Contravention of Part VAA

For the avoidance of doubt, conduct which is unlawful under Part VAA constitutes a contravention of Part VAA.

Subdivision B—Jurisdiction of courts

88W Federal Court and Federal Circuit Court have jurisdiction

For the purposes of this Division the Federal Court of Australia and the Federal Circuit Court have jurisdiction to hear and determine matters arising under Part VAA.

(10) Schedule 1, page 16 (after line 8), after Part 1, insert:

Part 1A—Amendment of the Australian Human Rights Commission Act 1986

Australian Human Rights Commission Act 1986

62A Subsection 3(1) (after paragraph (a) of the definition of unlawful discrimination )

Insert:

(ab) Part VAA of the Marriage Act 1961; or

62B Subsection 3(1) (after paragraph (d) of the definition of unlawful discrimination )

Insert:

(da) Division 2 of Part VAA of the Marriage Act 1961.

(11) Schedule 1, item 70, page 20 (after line 13), after subitem (2), insert:

(2A) Part VAA of the amended Act applies according to its terms from its commencement.

These are important amendments because they seek to safeguard sincere Australians and entities that, for either conscientious or religion reasons, hold to a relevant marriage belief and directly associated beliefs on family structure, sexual relations and parenting. The amendments impose limitations on the expression of those marriage beliefs in that they must not constitute hate speech. They must not be harassing or threatening on the basis of sexual orientation, gender identity, intersex status or marital or relationship status. They do not give licence to sexual discrimination. They do not permit a person or entity to discriminate against other Australians, as prohibited under the Sex Discrimination Act 1984.

These amendments, rather, are a shield for people and organisations that hold to a traditional view of marriage. They are not a sword to be wielded in the service of bigotry. I make that very clear; they are a shield, not a sword. These protections are very narrow and tightly focused around marriage. The protections only operate around the question of marriage and directly associated beliefs as per the Marriage Act. They do not open the door, as some members of this House have suggested, to broader religious freedoms which are contrary to Australian values. This will not open the door to sharia law. I note the member for Isaacs is sitting opposite. We worked together closely on the committee for intelligence and security. He of all people knows that I'm not the sort of person who would seek to alloy Australian law with sharia law. This amendment is tightly focused on the question of marriage and safeguarding within limits the freedom of Australians and religious organisations who express a conviction in traditional marriage. It's very important that we safeguard those people and organisations now—not in the future, but today.

The member for Deakin's amendment to include a unifying definition of marriage that recognises the views of Australians who voted in the postal survey has just been voted down. We've effectively extinguished from the Marriage Act the view of marriage held by 4.9 million Australians. Now we must seek to protect their freedom to hold that view. When this bill passes, which it will, the practical effect of the legislation is that the rights of same-sex couples to marry will interact with the rights of those who hold a traditional view of marriage. We need to reconcile those rights in a way that protects all Australians without detriment to anyone acting in good conscience or from religious conviction with respect to marriage.

These amendments introduce part 5AA, which draws its constitutional basis from the external affairs powers under section 51 of the Constitution and the protection of religious and conscientious belief in international human rights law. It protects Australians in the following ways. First, it protects the freedom of Australians to hold or express a belief in traditional marriage without exposure to vexatious litigation under state or territory antivilification law. These protections will prevail against such laws with the Commonwealth providing a universal standard of protection for all Australians with respect to marriage. They will prevent instances like that we saw in Tasmania, where Archbishop Julian Porteous was hauled before the Anti-discrimination Tribunal. They would also protect people like the young Canberra woman who was fired in September for posting on her Facebook page, 'It's okay to say no.'

Second, the amendments shield people and organisations such as churches, schools and faith based charities from detrimental treatment by government or delegated public authorities for expressing or holding traditional marriage beliefs. They will be able to hold their views without risk of dismissal, defunding, withdrawal of accreditation or any like detrimental action. Third, they protect people or organisations from having to promote or support views contrary to their own beliefs on marriage. They will protect people from coercion against conscience. Finally, and very importantly, they allow parents who hold to a traditional marriage and an associated view to withdraw their children from classes that teach material not consistent with their relevant beliefs. This protection mirrors the law that allows parent to withdraw their children from religious education. It is not novel; it reflects existing statute and case law here in Australia and New Zealand.

I want to come back to where I started. This amendment protects freedom of conscience and freedom of speech but within limitations. It does not licence hate speech or any speech that threatens or harasses those people of sexual orientation or views contrary to traditional marriage. It also provides a shield to organisations and individuals that is only enlivened when they're under attack. It's a good amendment, and I implore my colleagues to back it.

Terri Butler (Griffith, Australian Labor Party, Shadow Assistant Minister for Preventing Family Violence) Share this | Link to this | Hansard source

We'll be opposing these amendments. These amendments largely reflect the Paterson amendments that were lost by 44-20 in the Senate when this bill was before the Senate. I seek to oppose the amendments on the basis of three sets of reasons: the first being procedural, the second being principle and the third being the merits.

The procedural reason to oppose the amendments, with the greatest respect to the member for Canning, is that any amendment to this bill will cause a delay because there will then be a disagreement between the houses, and a delay in the passage of marriage equality will break the nation's heart. We don't know how long that delay would be, but we do know it could go for some time. It is manifestly unfair to ask people to wait longer for marriage equality. People have waited long enough for marriage equality. We should not amend this bill. There are people like my friend Berenice, who is in her 80s and in hospital very ill, are waiting on the passage of this bill, and there will be many other elderly people who are as well. Let's do what the nation has asked us to do and get this done.

The second set of reasons is principles. Amendments such as these, which are radical departures from the state of the current Australian law, may well be things that we should consider, but they should be considered in a way that is appropriate and in a way that has opportunities for detailed consideration and review. The Ruddock panel that has been established will be the ideal place for these amendments to be considered and discussed in detail. For example, these amendments were not covered in the consensus Senate report that came out of the select committee, which was a cross-party committee, earlier this year. There has been no opportunity for detailed review, detailed submissions or detailed consideration of these specific amendments. As I say, it may well be that collectively we seek to create new rights or change the way that religious protections are established in this country. I look forward to engaging in a constructive manner with the member for Canning and others next year when the Ruddock panel is underway, because I'm certainly in favour of protecting human rights, including the rights to freedom of religion.

The third set of reasons to oppose these amendments is on merit. As I say, it's difficult because these amendments are so radical and do depart from the existing Australian law and we haven't had detailed consideration of them in an orderly fashion. There is an attempt to rush them through the parliament, but let me make some observations having made that caveat. In terms of the freedoms that are sought to be enacted in this bill, we're talking here about new provisions that are unlike, really, anything that we have in Australian law. The freedoms are, as I say, something that should be considered in detail, but we need to also remember that, when we talk about human rights, it is almost always the case that human rights compete with each other and that balances have to be struck. I think most people reading, in particular, proposed section 88J and the related sections would have concerns about whether the correct balance has been struck with them.

The no-detriment provision that's been provided is unorthodox. It provides greater protection than similar provisions in respect of attributes such as sex, race and disability. The language that is used in the no-detriment clause prohibits people being treated unfavourably for the reason set out in the provision, yet for sex, race or disability you have to show that you have been treated less favourably than someone who has doesn't have the relevant attribute. Why have a different test in respect of this particular no-detriment provision? Again, there may be a good case for this, but it's something we should discuss and hear, and at the moment I have very grave concerns about that particular issue. Similarly, there may be a case that all of those no-detriment provisions use the formulation that the member for Canning has proposed and that Senator Paterson had previously proposed.

Finally, on parental rights: this provision seems to be trying to create a solution for a problem that doesn't exist. Parents already choose which schools to send their children to, of course, and they seek to send them to schools that align with their views. The Law Council of Australia has advised that the bill and the legalisation of marriage equality, of same-sex marriage, do not do anything to change teacher professional development or the learning resources made available to schools, and I note that people have sought— (Time expired)

Sharon Bird (Cunningham, Australian Labor Party) Share this | Link to this | Hansard source

The member for Griffith.

Terri Butler (Griffith, Australian Labor Party, Shadow Assistant Minister for Preventing Family Violence) Share this | Link to this | Hansard source

Thank you very much. The opponents of marriage equality have sought to conflate the marriage equality debate with Safe Schools. Obviously, people are entitled to debate Safe Schools, but we should not be conflating the two issues, because nothing in the marriage equality legislation that we're being asked to consider today would change teacher development or the learning resources made available to schools. I would note that, as the Law Council of Australia has advised, the Safe Schools resource is a non-compulsory and optional component of national state or territory curricula, and of course independent non-government schools determine which programs they will fund and implement. The marriage equality bill is not a bill that seeks to amend education policy.

On those bases, the amendments ought to be opposed.

Lucy Wicks (Robertson, Liberal Party) Share this | Link to this | Hansard source

I rise to speak in support of the amendments moved by the member for Canning to the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, and I thank the House for the opportunity to do so. Today we will expand on an institution that is a cornerstone of our society, as it has been for centuries, and many of us, including me, will respect and reflect the outcome of the postal survey in the final vote on this legislation today. But I rise to speak because this bill should be one that represents all Australians, regardless of whether they voted yes or no to the question about same-sex marriage, and the only way that we can be certain of this is to support this amendment, which goes to the very core of the importance of freedom of speech, freedom of religion and parental choice.

This amendment aims to protect Australians who hold a sincere and relevant belief in traditional marriage, and, to borrow a phrase from the member for Canning, it is designed to be not a sword but a shield. The proposal protects free speech by allowing individuals to express their genuine belief that marriage is between a man and a woman, as long as the expression does not harass or threaten, as outlined in clauses 88J and 88JA of the member for Canning's amendments. Further, individuals and entities would be protected from detrimental treatment initiated against them by public authorities because of their traditional belief about marriage, as detailed in the antidetriment provisions in clauses 88K, 88KA and 88KB.

Many real-world examples highlight the importance of these sections and the need to protect individuals and entities who express traditional beliefs. In the UK, for example, in the Johns v Derby City Council case, the English High Court upheld the decision of a local council that a Christian couple with traditional views on sexual ethics would not make suitable foster carers because they would not be open to promoting a homosexual lifestyle.

And of course we know all too well of the serious case in Tasmania where a booklet outlining the Catholic position on same-sex marriage, distributed by a Catholic archbishop, was held by the Anti-Discrimination Commissioner to be a possible violation of antivilification legislation. The matter proceeded to a conciliation session, but was, thankfully, abandoned after many months by the complainant.

But what I'm particularly conscious of in this amendment is the need for parents to have a right to withdraw their children from classes where the material taught in the class conflicts with their moral or religious beliefs, as contained in clause 88R of these amendments. This is absolutely vital for two main reasons. Firstly, it highlights that these amendments are not just about religion, clergymen or weddings in churches; they are also about our families, our children, our grandchildren and their freedoms, because, without these amendments, will schools, parents and teachers fear that they cannot express clearly and publicly their relevant marriage belief? Surely they ought to be able to do so, if we truly believe in freedom of expression as a reflection of the International Covenant on Civil and Political Rights. Otherwise, what is there to stop other possible consequences that we have not yet fully worked through as a nation, such as the compulsory adoption of gender neutral theory that we're already seeing outworked in some programs like Safe Schools that we know so many Australians have already raised concerns about? As I said in my earlier speech to this House, we have never yet had an entire generation of children that have grown up without gender as a reference point in their lives. Many people here may be comfortable with that, but many people may not be. And, as such, parents ought to have the freedom and the right to withdraw their children from classes at school because of a relevant marriage belief.

This for me is an important amendment to strengthen parental rights and to ensure they continue to be able to have a say over what their child is taught in class when it relates to their deeply held religious or conscientious belief. By accepting this amendment today, we are finding a way to carefully provide protections for people to articulate their longstanding beliefs on traditional marriage in a non-threatening way and to ensure we don't create a different form of inequality in law by legislating equality for same-sex marriage.

I would add that, if same-sex marriage is about legislating equality and freedom of choice, we need to be able to ensure that those same freedoms are also protected for those who still believe that marriage is between a man and a woman. There are, of course, in this amendment, important provisions that these views must not harass or threaten, and that protections will not be available where the person seeking protection is themselves discriminating. So I commend this amendment to the House and urge other members to carefully consider it in this important time in our nation's history.

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

I rise to oppose this amendment. Can I start by saying I acknowledge the member for Canning's genuine and deeply held views about protecting religious freedom, but I think they're misplaced in this case. I want to start by reiterating points that have been made in this debate already. The bill before the House does not have one word or clause that restricts the religious freedoms of Australians in relation to their views on marriage. In fact, the bill is designed to protect those rights in relation to marriage itself. It includes protections for ministers of all faiths, for religious organisations and for existing celebrants. The bill sits alongside existing laws that protect the rights of religious schools to teach as they believe they should, or that make discrimination against employees because of their religious or political views illegal. I draw the House's attention particularly to section 351 of the Fair Work Act.

I come to this debate recognising the fundamental importance of religious freedom and free speech. It is why I support the government's decision to establish the Ruddock review. That review will provide us with a proper opportunity to soberly reflect on the adequacy of current Australian law. I oppose this amendment for a number of more specific reasons. First, the amendment goes well beyond issues relating to marriage alone. If you need any evidence of that, it is revealed in its explicit reliance on seven constitutional heads of power other than marriage itself, including the corporations power, external affairs, trade and commerce, territories, telecommunications, banking and even the insurance power.

Second, this amendment seeks to fundamentally redefine the role of the Commonwealth in our federation. It will act to extinguish the rights of states to legislate in certain areas, including their own discrimination laws and their current responsibility for public schools in certain areas. That is no small decision. And they are exactly the types of issues that need to be properly considered as part of the Ruddock review.

Third, the amendment radically winds back existing protections for the LGBTI community, in a legally unorthodox and unprecedented way. I do not believe that in a debate that follows Australians voting for greater equality, this parliament should be endorsing legislative changes that reduce that equality for LGBTI citizens. This is at the heart of the problem with what the proponents of this and some of the other amendments are trying to achieve. It is asserted that this is about protecting freedoms. But those freedoms, as the member for Canning himself acknowledged, only extend so far as the right to manifest beliefs relating to the gay and lesbian community and particularly same-sex marriage. They are specific and discriminatory as a result. Nowhere in the amendment are similar protections afforded to Australians who hold beliefs in favour of same-sex marriage. In other words, it offers only one side of protections, and that is wrong.

Finally, I want to touch on the issue of parental rights. This amendment allows parents to withdraw their children from classes where material is being taught or presented that might be contrary to their beliefs on same-sex marriage, sex outside marriage or, more broadly, same-sex relationships. There is a debate to be had about parental rights and there is certainly a debate about whether these provisions which override the states are actually constitutional. Two things need to be clear. First, parental choice is implicit in Australia's system of school education, which allows parents to send, with considerable federal funding support, their children to schools that reflect their values—and this is how it should be. Second, in our public education system, a key principle is the universality of that educational experience. Our states rightly permit parents to decide whether their child will attend religious instruction in a public school. But this amendment goes well beyond that. It will mean parents can withdraw their child from any class—civics, history, literature or science, for example—but only in matters relating to same-sex relations. It is not a broad right for parents.

At the practical level, where a school under this amendment has to give a week's notice in writing to all parents about the teaching or presentation of material that might offend, there is a real issue about whether it is actually workable. I want to give one example. Recently, a local student interviewed me about marriage equality as part of a project which required students of his class to interview a community leader about an issue of their choice. Under this amendment, when that student stood up in the class to present his report, the teacher would have been required to immediately shut him down while the school provided a week's notice to parents on the potential subject matter.

I understand the desire of members of this House to protect freedoms, including those relating to religion, but now we have a process established by the government for that to be properly done. I therefore urge the House to vote against this amendment.

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

The problem that this House is wrestling with today is the absence of detailed consideration of freedom of speech, of conscience and of religion, which both the Prime Minister and the Leader of the Opposition promised would be given to us before this bill was finalised. That is the problem. A promise was made by the leaders of this parliament and the promise has not adequately been delivered upon, and that is why this parliament is now being called upon to deal with this on the run, as it were, because the promises made from the top were not adequately delivered on.

Let me make a couple of observations. I have never before heard members of this House showing such supine respect to another place. Why is it that, simply because something has been passed in the Senate, these are tablets of stone handed down from the mountain top beyond any question or consideration or delay by this House? Please. What would Paul Keating think of the supineness of this House of Representatives in the face of those in the other place across the corridor? We have a problem now, and I would ask those in doubt about this amendment or perhaps inclined to oppose this amendment to consider the actual facts.

The Archbishop of Hobart put out a pamphlet—he did nothing radical; he did nothing out of line. He simply asserted the traditional Christian teaching on marriage and he spent months being officially bullied and officially persecuted before the Tasmanian Anti-Discrimination Tribunal. A Canberra teenager who dared to place on social media her support for traditional marriage was sacked. Parents have been lied to about the content of curriculum their children are exposed to, and now that same curriculum is becoming compulsory in the state of Victoria. We have a problem and we must address it now. We must do what both the Prime Minister and the Leader of the Opposition said would be done but as yet has not been done. If that means a conference between the supporters of the Dean Smith bill and the supporters of the amendments to try to refine the amendments to something more acceptable, let that happen. If it means that things need to go back to the Senate for a couple of hours, let that happen. The last thing we should want to do is to subject Australians to new forms of discrimination in place of old ones that are rightly gone. We do not want to see politically correct discrimination substituted for old traditional discriminations, which this House is rightly rejecting. And we can't wait for the Ruddock committee to report. If there is a gap in our rights and freedom, if there is a gap in our protections, let it be filled now. Injustices are happening this day; let us deal with them now. Let's not kick it all off into the long grass, which is what I suspect some of the critics of these amendments would like to do.

We need to ask ourselves this fundamental question: do we want today to be a day of unity, or do we want today to be a day of division? I accept that the Australian people have spoken. I accept that as a society we have moved on from the attitudes of previous decades. But we have not moved on, and we should never move on, from the fundamental rights to freedom of conscience, freedom of speech and freedom of religion, and parental choice, and that is all these amendments are seeking to protect.

Steven Ciobo (Moncrieff, Liberal Party, Minister for Trade, Tourism and Investment) Share this | Link to this | Hansard source

I wanted to save my remarks in this debate for the consideration in detail stage and to make some specific comments with respect to the amendment that's before the House now. By way of general comments on the debate, I want to ensure that it gets passage as expeditiously as possible and so I will make my remarks relatively concise.

This has been, I think, a very important debate. There's no doubt that the Australian people have had their say. We saw the national result: 61.6 per cent voting yes. In Queensland it was 61.7 per cent, and my own electorate was overrepresented, compared to the national figures, at 63.8 per cent. I said all along that from my perspective there is absolutely no point in asking people to have their say if you do not respect the decision that they provide to you. On that basis, I indicated that I would support the decision of my electorate, and I'll be doing so in this debate when the bill comes before us—either amended or unamended.

With respect to the same-sex marriage debate, I think that it has actually been a very constructive process. I know there have been concerns that people harboured about the process. I know that people were expressing views that they felt perhaps there was going to be a poorly-chosen phrase and too much robustness in the debate, and that it would not be the correct way forward. But, fundamentally, I know from having had conversations with a number of gay friends, including my former chief of staff, that at the end of the process they felt validated. And I think that's a very big positive.

Having made that remark, I want to touch upon the amendment that's before the chamber and the amendments that are to come. I do believe, as others have mentioned in this debate, that there does need to be protections afforded in the legislation. Having these debates now as part of this process seems to me to be the appropriate course of action. I believe that the member for Canning's amendments, as well as the amendments that will follow, are all sound amendments and amendments that will improve the operation of the bill, notwithstanding the decision that was taken in the Senate and the investigation that the Senate committee undertook. Fundamentally, there do need to be adequate protections in place to ensure that those people who hold a different view are not subjected to discrimination for precisely the same reasons that we heard consistently put the views that this needed to be changed to ensure that there wasn't discrimination.

So, I believe that the amendments that are being put now are balanced amendments, amendments that appropriately safeguard and which provide—again, to borrow the member for Canning's language—a shield rather than a sword. This is the time to consider those in detail. I will be supporting the balance of the amendments, but I also will support the passage of the overall bill. Thank you.

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

In previous contributions I've set out my reasons for why we're opposing these amendments, and I won't repeat those. But I do want to respond to one matter that was raised by the member for Warringah, and that is about lies being told about what gets taught in schools.

Well, there have been a series of lies told, and they've been lies told about the Safe Schools program and other forms of education that have made sure that young people at school who are working out who they are attracted to and what they are as a person get told that they are loved and that they are respected. We heard some of those lies in the various campaigns of misinformation. We heard someone get up and say, 'My son was told that he had to wear a dress at school,' and the principal came out and said, 'That's not right.' I don't understand what's particularly wrong about a boy at school wanting to wear a dress, and I think Senator Bernardi found that out, to his chagrin, when he tried to make a point of it and ended up helping the fundraising efforts of a school that was doing exactly that. But, if there is someone at school who wants to do that, they deserve our support and protection.

The people who are moving these amendments talked a fair bit about protection. There is a group of people that I want to protect. I want to make sure that this parliament protects the young boy in a country town who is working out who he's attracted to. I want to make sure that this parliament protects the girl at a high school in Victoria who wants to take her girlfriend to the school formal. What I know, from having spoken directly to some of the people who've been involved, is that programs at school, like Safe Schools, save lives. They save lives. That should be the first priority of anyone in the House. So, if you want to talk about protection, then let's talk about the protection of every young child in Australia who is listening to this debate, or whose parents are listening to this debate and have to intervene and turn down the television at a particular point in time when another bit of hate speech comes on. Let's use this opportunity to send the message to them that they and their families are loved, and that, when it comes to protection, what we will put first is children and families and that we will recognise that in Australia, in the 21st century, love makes a family.

Like it or not—I say to the people who are moving this amendment—a family might not be what you think it is or would like it to be, but there are children growing up in same-sex couples' households right around this country at the moment, and it is a wonderful thing. This parliament should be getting right behind them. If we want to talk about protection, let's protect every young person in this country. I oppose these amendments.

An incident having occurred in the gallery—

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

I rise on a point of order, Madam Deputy Speaker. The previous Deputy Speaker, when in the chair, asked the galleries to respect the process of the parliament. I don't want to be the Christmas Grinch, and I know that there are a lot of people who've travelled here from elsewhere in order to be here for this historic vote, but the people who are against the amendments or in favour of the amendments should be treated equally. The galleries aren't really supposed to barrack for one side or the other, and I'd ask them to respect that.

Sharon Bird (Cunningham, Australian Labor Party) Share this | Link to this | Hansard source

I understand the Leader of the House's point of view and I'm sure the gallery understands that point of view too.

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

The contribution just made by the member for Melbourne highlights a fundamental divide which exists and which this debate over the last few days, weeks and months has illustrated. For the member for Melbourne, and those with his position on this, marriage is a matter of love and equality. I accept that that's a conscientiously held belief of many people. But there are also millions of Australians who have a different belief about the meaning and the purpose of marriage. For them, marriage is about a union of a man and a woman. Whilst this debate will resolve the issue of the definition of the matter in law in Australia, it doesn't resolve the differences between the two views about marriage. The outcome of this debate won't change the views of those who support the proposition before the chamber or those who oppose it. Millions of Australians will continue to believe that marriage is a union of a man and a woman.

The question that this amendment raises is whether or not those millions of our fellow Australians—indeed, all Australians—can express their view as to what the meaning of marriage is and what the purpose of marriage is without the fear of being hauled before some tribunal. This is not fanciful, because it has already occurred. It has occurred whilst the meaning and the definition of marriage is that which exists at this point. As many other speakers have said, the Archbishop of Hobart was hauled before a tribunal for simply propounding the millennia-old understanding of marriage by not just Christians but other faiths as well; whilst the existing definition is what it is now, he was hauled before a tribunal.

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

And he won.

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

He didn't win. The reality is that the complainant eventually withdrew the complaint—after huge costs were incurred in the process. In evidence to the Human Rights Subcommittee inquiry into freedom of religion in Australia, Professor George Williams pointed out that there is nothing in the Commonwealth laws, nothing in the federal laws of this country, that precludes someone such as Archbishop Porteous from being hauled before the tribunal. And that's the mischief that this particular amendment seeks to address.

The United Nations, in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights, set out as a fundamental freedom that of religion, conscience and belief. More than that, the United Nations bodies, and international jurisprudence in this respect, has always maintained that there is no hierarchy of rights—that universal human rights are equal and you can't rank one above the other, and, if necessary, you need to work out how you can respect all human rights, particularly those that are in tension with each other. But the problem here is that Australia, even though it is one of the countries that sought the universal declaration and has ratified the International Covenant on Civil and Political Rights, has effectively incorporated into domestic law article 26, relating to discrimination, but we've not incorporated into the domestic law of Australia article 18—and some other articles for that matter—relating to freedom of religion, conscience and belief. (Time expired)

Sharon Bird (Cunningham, Australian Labor Party) Share this | Link to this | Hansard source

The member's time has expired. The member from Menzies may speak in continuation.

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

This amendment simply seeks to protect the ability of anybody, after today or after when this legislation receives royal assent, to say respectfully—and not, as the member for Canning pointed out, in any hateful way—that they still believe this is what the meaning of marriage is. That is what is before the House today. Can I make this point to those in the galleries or elsewhere. The day you start to cherrypick which human rights are most important is a dangerous day. That is why the United Nations and others have said that there is no hierarchy of rights. That is why we're saying that, along with the claim being upheld and propounded by so many people that there's a right to marry regardless of what gender a person is, this amendment does not extinguish the right of other Australians to say, 'Nonetheless, I believe this is the definition of marriage from a personal conscientiously or religiously believed point of view.' That is simply what is being asked for here. To not to uphold this is, I think, a dangerous path.

Cathy McGowan (Indi, Independent) Share this | Link to this | Hansard source

We're talking about rights and the importance of rights, and we've had a couple of references to people from country towns. I would like to make it really clear to the House that regional Australia voted overwhelmingly in support of amending the Marriage Act. In fact, there are only two electorates that actually voted no in rural and regional Australia. If colleagues want to give special consideration to people and their needs, I ask that they refer to people in inner Sydney and other cities. Know that in the country areas of Australia we are totally and utterly behind this legislation and we are supporting it.

Ann Sudmalis (Gilmore, Liberal Party) Share this | Link to this | Hansard source

I will be very brief on this. I have not changed my commitment to vote yes on the ultimate putting of this bill before the House. I know that this is very, very important to a huge number of people, including my daughter, who is actually live streaming right now.

There is a reason here to have a bit of an olive branch for the 38 per cent of Australians who voted no. This particular amendment alleviates some of the fears that some of those 38 per cent of people have expressed. Whilst some people don't believe that it's the right thing to do, it is part of the nurturing and healing that we as parliamentarians will need to do after this vote has gone through. Thirty-eight per cent of Australians feel betrayed right now and want to have that fixed, in the same way that most of the audience felt betrayed before the vote. We need to come together and work together, and this amendment addresses a lot of the fears that have come through in emails to me and, undoubtedly, to some of my colleagues. These people need to know that they're protected.

I bring to you a story that may or may not have relevance. If we teach that difference is acceptable, we're pointing out that difference exists, and, in the game of equality, that's not your foundation stone. When one of my children was young she was attending a very Caucasian school, and there were three young girls there from another place. One day, one of those girls was bullied by another child, so the school decided to have an antiracism strategy within their school. My daughter, having never acknowledged that this other girl was different, came home and said, 'Mum, guess what: she's different to me.' In the days of equality, we should not be pointing out difference; we should be working together and saying, 'We are one.' This amendment is trying to address that, so I will be supporting this amendment, but it doesn't change my reflection of the national vote and that of the electorate of Gilmore. I will vote yes to the bill.

Andrew Wallace (Fisher, Liberal Party) Share this | Link to this | Hansard source

I'm conflicted here today. This is not an easy debate for many of us. We don't discriminate in this country by virtue of the colour of someone's skin, nor do we discriminate against someone by virtue of their race or their physical or intellectual disability, and nor should we. Nor should we discriminate against someone by virtue of their sexual preference. But discrimination is something that goes both ways. Respect is something that should go both ways. I understand that many members of the LGBTI community feel that they have been discriminated against for many years. I understand that. It is not right that they have been discriminated against for many years not just by the community but by the laws of this country.

In my second reading speech on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, I gave a very personal story of our family's journey and my own journey to get to the point I've reached on the issue of same-sex marriage. Since I've done so, I've received a lot of support from my colleagues here and my colleagues on the other side of the chamber, and I'm very appreciative of that. I've received a lot of support from friends and family back home. But, unfortunately, I've also received a lot of abuse. Bear in mind I said in my speech in the second reading debate that I supported the right of same-sex couples to marry. I said that I would respect the will of the Australian people who strongly—very strongly—supported same-sex marriage. I said in my speech that I had changed my mind. Yet, since having delivered my own speech, I was subjected to hate speech and I was subjected to ridicule of my own faith. Respect is a two-way street. It is that ridiculing of my own faith that convinces me that we must have the protections of religious beliefs that are contained in this amendment.

In the lead-up to this debate, I met with a number of delegations in support of same-sex marriage and I met with those that oppose the bill. When I met with a number of religious leaders in my electorate recently, they—rightly, in my view—asked me this question: 'Andrew, if this bill comes in, will we have the right to say from the pulpit on Sunday that in this church we believe that marriage is between a man and a woman to the exclusion of all others for life, without fear that we will be hauled before the courts or a tribunal for discrimination?' They asked me whether their religious schools would have the same right for their teachers to be able to say the same thing. The answer is that currently there are no clear protections for religious leaders that mean they can stand up and preach that from the pulpit or that school religious teachers are able to say the same thing. There are no clear protections for them, and that is why I believe that these amendments should be supported. But that does not mean, and I want to make this very clear, that I do not support the bill in its original form, insofar as people of all sexual preferences should be treated equally in the eyes of the law.

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

I don't want to prolong this debate but I do wish to make a point in relation to the strong protections that do sit in our Commonwealth for people to be able to express their view from a position of religion if they're a minister speaking from the pulpit, and it's actually one of the strongest protections that we have for rights. It is in the Australian Constitution, under section 116:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

That is in the Australian Constitution, which overrides the decisions of this parliament.

Andrew Hastie (Canning, Liberal Party) Share this | Link to this | Hansard source

I'm going to sum up now and I don't want to delay this any longer. I want to restate the purpose of the amendments. They seek to reconcile all Australians who hold a differing view on marriage. We are balancing the right of same-sex couples to marry with those who hold traditional views of marriage, either through conscientious belief or religious conviction. Those rights will begin to interact as soon as the legislation before us enters into law. I think clear boundaries are important. My good colleague the member for North Sydney mentioned that there are no protections for same-sex couples in the marriage bill—the Smith bill. That's true, but that's because the Australian people have voted to legalise same-sex marriage—that is the prevailing view, by 60 per cent. It was a decisive victory and I acknowledge that publicly.

The task, especially in liberal democracies, is always to protect the minority view and uphold the dignity and worth of all Australians. I gather by the thundering silence after my speech and the rapturous applause that the member for Melbourne received that we do have many LGBTIQ Australians in the gallery today. I welcome you here.

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

And in the House.

Andrew Hastie (Canning, Liberal Party) Share this | Link to this | Hansard source

It's a big day for you—and in House, as the member for Goldstein just said. I acknowledge that many of you have suffered discrimination over the years—bullying and all sorts of treatment. I know Rodney Croome, Tom Snow and others have fought hard to balance the playing field, and that will be realised today with the passage of this bill, which will surely happen. I want to say that, yes, 38 per cent of Australians voted to retain traditional marriage, but that doesn't mean that their rights should not be protected. It's in that spirit that these amendments are put.

My last point: I have a series of letters which I seek to table. One is from the archbishop of Sydney, Glenn Davies. One is from 38 faith leaders writing to the Prime Minister and the opposition leader. One is from the Presbyterian Church of Australia expressing concern about their schools in the electorates of Wentworth, Reid, New England, Reid, Calare, Cowper, Page, Hunter, Wannon, Kooyong, Chisholm, Aston, La Trobe and Groom. I have a statement from the Association of Heads of Independent Schools of Australia, a letter from Christian Schools Australia, a letter from the Australian Association of Christian Schools and a letter from the Free Reformed School Association in WA, which has schools in Burt, Brand, Canning and Forrest. All of them are concerned about the ability of those schools to teach in accordance with their religious convictions insofar as marriage is concerned. I seek leave to table those letters.

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

Is leave granted?

Andrew Giles (Scullin, Australian Labor Party, Shadow Assistant Minister for Schools) Share this | Link to this | Hansard source

No.

Mr Tony Burke (Watson, Australian Labor Party, Manager of Opposition Business (House)) Share this | Link to this | Hansard source

No.

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

Leave is not granted.

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

I was going to say that leave is granted, because, as the Manager of Opposition Business pointed out before, in a conscience vote, he doesn't speak for the entire opposition and I don't speak for the entire government. Therefore, every member of the House is king—or queen, if you like—in questions whether leave should be granted. In the absence of anybody else granting leave, I was going to say that leave is granted because the letters—unless they're offensive letters, and I don't think the archbishop of Sydney would write an offensive letter—they should be able to be tabled.

Mr Tony Burke (Watson, Australian Labor Party, Manager of Opposition Business (House)) Share this | Link to this | Hansard source

I want to make clear—I wasn't going to speak—I'd made the statement earlier that I wasn't able to make a decision on behalf of the whole of the opposition in terms of leave on these issues. I certainly didn't object, but I understand someone did.

Andrew Hastie (Canning, Liberal Party) Share this | Link to this | Hansard source

Deputy Speaker, I assume that you're passively allowing leave, and therefore I table them.

Honourable members interjecting—

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

Leave is not granted.

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

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

Alex Hawke (Mitchell, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (13) as circulated in my name together.

(1) Clause 1, page 1 (lines 14 and 15), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment (Definition and Protection of Freedoms) Act 2017".

(2) Schedule 1, item 2, page 5 (lines 1 to 4), omit subparagraph (b) (ii) of the definition of authorised celebrant, substitute:

  (ii) an authorised officer.

(3) Schedule 1, page 5 (after line 4), after item 2, insert:

2A Subsection 5(1)

Insert:

authorised officer means an officer (within the meaning of the Defence Act 1903), other than a chaplain, authorised by the Chief of the Defence Force under section 71A to solemnise marriages under Division 3 of Part V.

(4) Schedule 1, item 4, page 5 (lines 9 to 12), omit all the words from and including "officer", substitute "authorised officer".

(5) Schedule 1, page 5 (after line 17), after item 5, insert:

5A After section 5

Insert:

5AD Determining when a belief is held etc.

(1) For the purposes of this Act, a person holds a genuine religious or conscientious belief, or genuinely believes, if the holding of the belief (inclusive of the person's or entities beliefs as to the actions, refusals, omissions or expressions that are consistent with that belief)is not fictitious, capricious or an artifice.

(3) For the purposes of this Act, if a chaplain or an authorised officer holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, then in holding, expressing or acting on that belief:

(a) whether or not another person who is to be married is a man or a woman is to be determined by the chaplain or authorised officer; and

(b) in determining whether the other person is a man or a woman, if the chaplain or authorised officer reasonably believes and genuinely believes that the current legal status of the other person as a man or a woman is different from the legal status of the other person as a man or a woman at the time of the other person's registration following the other person's birth, the chaplain or authorised officer may disregard the current legal status of the other person's sex or gender, or their gender identity or intersex status.

(6) Schedule 1, item 6, page 5 (lines 18 and 19), omit the item, substitute:

6 Paragraph 21(2 ) ( b)

After "the chaplain", insert "or authorised officer".

(7) Schedule 1, item 22, page 12 (lines 12 and 13), omit the item, substitute:

22 Subsection 71(1)

After "a chaplain", insert "or an authorised officer".

(8) Schedule 1, item 23, page 12 (line 16), omit the heading to section 71A, substitute:

71A Officers authorised to solemnise marriages

(9) Schedule 1, items 24 and 25, page 12 (lines 20 to 25), omit the items, substitute:

24 Paragraphs 72(1 ) ( a) and (b)

After "the chaplain" (wherever occurring), insert "or authorised officer".

25 Subsection 72(2)

After "the chaplain" (wherever occurring), insert "or authorised officer".

(10) Schedule 1, items 27 to 56, page 12 (line 28) to page 15 (line 22), omit the items, substitute:

27 Section 74 (heading)

After "chaplain", insert "orauthorised officer".

28 Subsection 74(1)

After "the chaplain", insert "or authorised officer".

29 Subsection 74(3)

After "chaplain", insert "or authorised officer".

30 Section 75 (heading)

After "Chaplain", insert "or authorised officer".

31 Section 75

After "A chaplain", insert "or authorised officer".

32 Section 75

After "the chaplain", insert "or authorised officer".

33 Subsections 76(1), 77(1) and 78(2)

After "chaplain", insert "or authorised officer".

34 Section 79 (heading)

After "Chaplain", insert "or authorised officer".

35 Section 79

After "A chaplain", insert "or authorised officer".

36 Section 79

After "the chaplain", insert "or authorised officer".

37 Subsection 80(1)

After "a chaplain", insert "or authorised officer".

38 Subsection 80(1)

After "the chaplain", insert "or authorised officer".

39 Paragraphs 80(2 ) ( a) and (c)

After "the chaplain", insert "or authorised officer".

40 Subsection 80(4)

After "The chaplain", insert "or authorised officer".

41 Subsections 80(5) and (6)

After "the chaplain", insert "or authorised officer".

42 Subsection 80(8)

After "a chaplain", insert "or authorised officer".

43 Subsection 80(9)

After "the chaplain" (first occurring), insert "or authorised officer".

44 Paragraph 80(9 ) ( b)

After "the chaplain", insert "or authorised officer".

45 Subsection 80(10)

After "a chaplain", insert "or authorised officer".

46 Section 81 (heading)

Repeal the heading, substitute:

81 Power to refuse to solemnise marriage

Chaplain or authorised officer may refuse to solemnise marriage on any grounds

47 Section 81

Omit "A chaplain", insert "(1) A chaplain or authorised officer".

48 Section 81

After "the chaplain" (wherever occurring), insert "or authorised officer".

49 At the end of section 81

Add:

Chaplain may refuse to solemnise marriage on the basis of religious or conscientious beliefs etc.

(2) To avoid doubt, a chaplain may refuse to solemnise a marriage despite anything in this Part or any law of a State or Territory, if any of the following applies:

(a) the refusal is consistent with the doctrines, tenets or beliefs of the religion of the chaplain's religious body or religious organisation;

(b) the refusal is because of the religious susceptibilities of adherents of that religion;

(c) the chaplain's genuine religious or conscientious beliefs do not allow the chaplain to solemnise the marriage.

Authorised officer may refuse to solemnise marriage on the basis of genuine religious or conscientious belief

(3) Despite anything in this Part or any law of a State or Territory, an authorised officer may refuse to solemnise a marriage that is not the union of a man and a woman, if:

(a) the officer holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; and

(b) the holding by the officer of that belief does not allow the officer to solemnise the marriage.

Grounds for refusal not limited by this section

(4) Subsections (2) and (3) do not limit the grounds on which a chaplain or an authorised officer may refuse to solemnise a marriage.

50 Subsection 83(2)

After "a chaplain", insert "or authorised officer".

51 Section 84 (heading)

After "a chaplain", insert "or authorised officer".

52 Paragraph 84(1 ) ( a)

After "a chaplain", insert "or authorised officer".

53 Paragraphs 84(1 ) ( b) and (c)

After "the chaplain", insert "or authorised officer".

54 Subsection 84(1)

After "the chaplain" (last occurring), insert "or authorised officer".

55 Paragraph 85(1 ) ( b)

After "a chaplain", insert "or authorised officer".

56 Paragraph 85(1 ) ( c)

After "the chaplain", insert "or authorised officer".

56A Subsection 85(1)

After "the chaplain" (last occurring), insert "or authorised officer".

(11) Schedule 1, items 59 and 60, page 16 (lines 1 to 4), omit the items, substitute:

59 Subsection 99(3)

After "A chaplain", insert "or authorised officer".

60 Subsection 116(2)

Omit "celebrant or chaplain" (wherever occurring), substitute "celebrant, chaplain or authorised officer".

(12) Schedule 1, item 62, page 16 (lines 7 and 8), omit the item, substitute:

69 Paragraph 119(3 ) ( f)

After "chaplain", insert "or authorised officer".

(13) Schedule 1, item 63, page 17 (after line 24), after subsection 40(2AB), insert:

(2AC) An authorised officer in the Defence Force may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if the circumstances mentioned in subsection 81(3) of the Marriage Act 1961 apply.

The amendments here are relatively straightforward. I say to the House that these amendments are examples of ways we can improve this bill in consistent application with the intention of the bill and of the Australian people. This isn't about delay or obfuscation. When you consider the substantive matters that are in this amendment, we are getting directly at the arrangements of the Chief of the Defence Force, the CDF, who we have direct responsibility for in Australia. Given the construction of this bill and the arrangements for civil celebrants, we need to take account of the arrangements for the defence forces—the chaplains and the authorised officers that are appointed by the Chief of the Defence Force.

As the bill currently stands, the CDF can make appointments without taking account of the conscientious objection of the individual that he appoints. This is different, of course, from the case of those who work in a registry office, where that's the purpose they're employed for. In the case of an officer of the defence forces, employed in the Air Force, the Navy or the Army for the primary purpose of conducting military operations, the marrying of service people overseas is a secondary duty, not the primary purpose of their employment. So the operational effect of this amendment would be that the defence chief would need to check that that officer of the defence forces—the Army, the Air Force or the Navy—was happy to conduct same-sex marriage and, in that case, that person would be appointed. This is a preventive measure to prevent discovering, at the time after the appointment of that officer in an overseas deployment, that that serving officer had a conscientious objection—as they have a right to, under article 18. They have a right to freedom of religion and belief. Remember that these officers are appointed by the religious denominations we are talking about—that is, they are religious ministers who are serving as officers of the defence forces who are appointed by the Chief of the Defence Force specifically to serve on operation, and to marry service personnel overseas. It happens.

Here I want to note my colleagues who have been moving these amendments. I note the service of the member for Canning and the member for Fadden, and the Reserve service of the member of New England. I've served in the Reserve forces myself.

This is a practical amendment. It will improve this bill by making sure that it does take account of the genuine conscientious objections of religious officers of the defence forces appointed by the CDF, giving them the ability to highlight that they have an objection prior to their deployment. That makes sense. It has been accepted by the Senate select committee. This is covered in the bill, but it isn't covered sufficiently to the extent that it will avoid a situation where the CDF can appoint an officer of the Army, Navy or Air Force who has this religious objection, in advance, without knowing that this will become a problem. This is a workable amendment.

I say this to the House: it has been my concern from day one of this debate and in the debate on these amendments that we are not having a genuine conscience vote on this bill or these amendments. The attitude of the Labor Party, of the members opposite, in this debate has been to vote en bloc, en masse. So I say to the appointed representative of the Labor Party, whoever it is who has been appointed to do the thinking on this amendment: this is a purely practical arrangement; it is purely to improve the quality of the legislation—even if it does mean an extra hour in the Senate to get their approval to bring it back. It is to prevent a situation where the CDF appoints a minister of religion who is also a serving officer of the defence forces who has a conscientious objection, only to find that exercised in the field or on deployment. It's a practical and sensible amendment. It simply makes sense.

Why wouldn't we have a member of the Labor Party cross the floor at any point on any one of these amendments, including this amendment that has been moved here today, if this was a genuine conscience vote? Why wouldn't that be the case? So far we have not. I'd say to members opposite: if this is a conscience vote, this is the kind of amendment on which you could easily come and join with individual members over here. I say to my colleagues here: we are having a debate amongst ourselves, and it is a good process. Some of you are looking over here and saying, 'Isn't this an interesting debate?' or joining in, but you're not joining in the conscience voting process of this parliament. You are not debating the issues and making a case for or against. You've appointed a spokesperson to do the thinking for you.

While I violently disagree with some of my colleagues here—I really do—I respect the courage and the strength of the Prime Minister in allowing a genuine conscience vote on this side of the House on these amendments. It takes courage and strength for people to disagree and move on. I disagree with my colleagues, but I respect them. And I respect their courage and strength. I respect the courage and strength of the crossbench. I respect the courage and strength of people who can disagree on these amendments. (Time expired)

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

I call the member for Mitchell.

Alex Hawke (Mitchell, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

And I say to the House, again: the purpose of this amendment is a practical purpose. It is to improve the quality of the legislation. It is rare that we get any bill passed without amendment through both chambers of the House. It's a quality improvement. You can support it. It will send a good signal to our service men and women and to the people who may be married by their officers who are appointed by the CDF. We don't want them finding out overseas on deployment that a genuine conscientious objection has occurred overseas or someone being ordered into the field where they have a genuine conscientious objection, remembering that they are appointed by the denomination of their religion and remembering that, while it is in the bill, it is not sufficient for them at the time. They could still be appointed by the CDF to do this even though they have that genuine conscientious objection.

So again I say to my colleagues here, on this side of the House: this is a good amendment for you to support. I've heard your arguments. I don't agree with all of them. We have a debate here in this House today genuinely, on this side of the House, between the Liberal Party and the National Party and the crossbench. We're having a genuine disagreement about some issues. We are seeking greater protections for freedom of thought, freedom of conscience and freedom of religion, in these amendments. This particular amendment is particularly addressed to a matter of Commonwealth responsibility, our serving men and women, the people who are appointed by the commander of the defence forces, the Chief of the Defence Force, and we recommend it strongly to you.

I say to the Labor Party: this is your chance. This is your moment. This is where the Leader of the Opposition could step up and show some leadership. He could actually say to his members: 'This one is a practical amendment. You are free to cast your vote on this because it will not harm the bill. It will not delay marriage equality in any way, shape or form, and we will improve the legislation. We will have ensured that we have those vital protections for freedom of religion, worship and practice in our serving men and women in the arrangements that are made for the people that marry them overseas. It's practical. It's sensible. There is no reason not to do this.'

And, to the five million people who voted no, who have concerns for religious freedoms and protections, and for the 45,000 service personnel—and many of them will seek to get married overseas. Indeed, members of the same sex will seek to get married in the defence forces overseas, and nothing in this bill will prevent it. Nothing in this bill will harm it. Nothing in this bill will get in the way. In fact, it will enable it. But, at the same time, we don't want one right overriding another. Let's allow the CDF to consider that matter before he appoints that officer, to ensure this doesn't happen, and put this important and vital protection in the bill at the time we pass this legislation.

Terri Butler (Griffith, Australian Labor Party, Shadow Assistant Minister for Preventing Family Violence) Share this | Link to this | Hansard source

The Senate voted against these same amendments by 44 to 20. It is unfortunately incorrect to predict that, if this amendment were to be passed, it would just mean an extra hour of the Senate's time. There is no way, frankly, that the member can predict that this will take an extra hour of the Senate's time. It is equally possible—in fact, much more likely, given the gap between the yeses and the noes in the Senate when this precise amendment was put before the Senate—that the Senate would refuse this amendment. The consequence of that, of course, would be a stalemate in the disagreement between the houses.

I know we all enjoy each other's company here, but I don't want to spend the next few weeks with the members in this House. I would like, and I'm sure that many other people would like, to get home. But much more important than what I want is what the people of Australia want. They don't want us to continue arguing for several more weeks or potentially longer. They don't want us to continue to fight. They want us to pass marriage equality, and the only way that we can be sure that marriage equality passes today is to pass the bill unamended. We know that these amendments were already debated and ventilated fully in the Senate when the bill was before the Senate recently.

This particular amendment—to go to some of the concerns that have been raised by the honourable member opposite—deals with the question of chaplains and military marriage officers. He seeks to change them to authorised officers rather than the marriage officers foreshadowed in the bill. The purpose of the provision in the bill was that chaplains could retain their religious exemption from having to perform same-sex marriages. The purpose is that chaplains would not be put in a position where they would have to solemnise marriages in a way inconsistent with their religious beliefs.

The consensus cross-party Senate inquiry report stated:

In relation to military chaplains, the committee notes that the proposed amendment would not change the current law. Should a—

future—

parliament consider introducing marriage equality in Australia, the committee suggests that the government consider reintroducing the concept of 'marriage officers' to facilitate the marriage of Australians overseas.

In other words, the point of these officers is to be officers who will undertake secular marriages for same-sex couples in the event that chaplains do not wish to do so on the basis of their religious beliefs. The purpose is to ensure that marriage equality is genuine, including for people serving in the military, so that they are not denied the rights of civilians because there happens to not be someone who is prepared to officiate their wedding. Why would someone who opposes marriage equality take up the office of marriage officer, knowing it has been created to ensure that same-sex couples can get married? It is beyond belief. This amendment is unnecessary. I understand the intent, but it is unnecessary. It ought not be supported.

The other issue with this amendment is that it seeks to include conscientious belief as well as religious belief. We have already ventilated that argument well and truly. Members are aware of the results of previous divisions in which that was an issue.

I urge the House to reject the amendment, pass the marriage bill and allow us all to continue to move forward.

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

I would like to begin by respectfully disassociating myself from the comments made by the previous speaker that things should be done swiftly. I resolutely agree that we should get this done as quickly as possible, but I was elected to parliament to get the best law for this nation. If that takes time, that's also appropriate. In saying that, that's also why I am voting against this amendment.

The previous speaker made the case around the Senate inquiry, so I won't seek to repeat that point, but this amendment is inconsistent with the Senate inquiry and I don't think that it is necessary. Those people serving in these capacities are employees of the state and, as a consequence, I believe they have a responsibility to fulfil their functions as employees of the state. I realise, recognise and respect the fact they may have their own private views, but, as the member before me outlined, ultimately, they wouldn't take up the office if they felt so, appropriately.

When it comes down to it, we have to remember the purpose of having this function in the act. It is for those brave men and women who serve our nation overseas, defend our interests and fight for freedom across the world, to make sure they have the opportunity to marry, regardless of where they're located, and for that to be respected in Australian law. When you think about some of the times that happens, it doesn't always happen in nice circumstances. Sometimes people in the past made the choice to get married to their loved one in the moments before they went off to battle. I know, Deputy Speaker, you will have some appreciation of that in a way that I don't, as I don't have firsthand experience. But I think it is absolutely critical that we recognise that those people who serve our country should be given those full rights and freedoms and shouldn't have to go out and scurry around to try to find somebody who might marry them, whether they happen to be two Defence Force personnel being deployed or one Defence person seeking to marry somebody else under a Defence Force arrangement. In the end, people can do these things and then go off and risk or sacrifice their life.

The idea that we have people who represent our nation—they defend the interests of our nation and are prepared to sacrifice their lives for our nation and for exactly the freedoms we're debating today—who seek to go and marry a person that they love, but are turned around by somebody who simply says, 'I don't want to do that; I'm sorry if it causes you an inconvenience,' to me, is absolutely abhorrent. I understand the concerns some people have on the other side of this debate around this particular amendment, but, when people are going to take these risks, it isn't a gross infringement on people's liberties, particularly when they have accepted the office of a marriage officer. They should also recognise and respect the risk and the sacrifice of those people in our country who are prepared to make the ultimate sacrifice. It should be put into proportion. So I urge all members to defeat this amendment and to support our troops.

Chris Crewther (Dunkley, Liberal Party) Share this | Link to this | Hansard source

I'm very pleased to be seconding these amendments moved by the member for Mitchell today, as well as supporting all of the five protection amendments. I want to quickly note again my reasoning for supporting these amendments. I have my own religious beliefs about what Christian marriage is, but I voted yes in the postal survey as I believe in freedom and equality under the law and in not restricting the definition of marriage, so as to allow for any two consenting adults to marry under state law. I also said publicly I would vote yes on the final bill in accordance with the will of the people. At the same time, I would hope that colleagues supporting allowing any two consenting adults to marry would support the freedom of individuals who hold a genuine belief to express their belief and not be forced to act contrary to that belief. That is why I am backing these amendments today. In essence, my reasoning for taking on both positions is my fundamental belief and freedom.

The current bill allows for the appointment of authorised celebrants by the Chief of Defence Force to conduct weddings if the CDF has a force deployed and if there is member of the Defence Force overseas who is going to get married. That could mean that a Christian or Muslim officer with a belief that marriage is only between a male and a female could be appointed as an authorised celebrant without taking regard of that individual's conscientious objection. Being under instruction, that officer would not be able to oppose an order to take on that position nor, once they were in that position, would they be able to choose not to marry a couple of the same sex, even if that conflicted with their own personal religious convictions.

What these amendments do is recognise an individual's personal beliefs and convictions before the appointment is made. Before the CDF makes the appointment, they should ask whether the officer would be happy to conduct same-sex weddings. If they were happy then the appointment could go ahead. If they weren't then—recognising the individual's right to their beliefs and their religious views—another officer who was happy to solemnise any marriage could be appointed instead. In summary, all these amendments mean is that the Chief of the Defence Force would need to check that the officer was happy to conduct all marriages between two consenting adults, and that person could then be appointed. These amendments simply lay down a competence check. This is in line with international human rights law.

In addition, I would note that this gives the ability of an officer to refuse an appointment by the CDF, if that officer had a conscientious or religious objection, or to consider the willingness of the person to take on that role in the first place. These amendments are consistent with the February 2017 report of the Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill, which noted that celebrants who are not religious ministers should be able to refuse to solemnise a marriage consistent with their religious convictions. If these amendments are not adopted, here is a potential situation: an officer would be forced to take on an appointment as an authorised celebrant upon being ordered to do so and they would be forced to marry any two consenting adults, against their Christian or Islamic or other religious faith.

Let be me clear, as a person who received bullying at a young age for being gay, even though I'm not gay, and who also received bullying for being a Christian, I do not want to see discrimination against either. A person should not be discriminated against simply because of their sexual preference or perceived sexual preference. At the same time, I don't think we should eliminate one form of discrimination and replace it with a new ability to discriminate against Christians, Muslims or people of other religious faiths, who, I might also note, are likely to be in a minority in Australia soon. That is why I ask colleagues today to support these crucial amendments to allow officers to freely exercise their religious beliefs by preventing an appointment where they would be forced to act against those beliefs.

Dan Tehan (Wannon, Liberal Party, Minister Assisting the Prime Minister for Cyber Security) Share this | Link to this | Hansard source

I rise to support the member for Mitchell's amendments. These amendments are only necessary due to the inclusion of the provision that the Chief of Defence Force can authorise ADF officers other than chaplains to solemnise marriages occurring overseas. It is worth noting that the best course of action would've been to not include this provision in the Smith bill, as it is hard to fathom a situation where this course of action would be necessary. However, in recognising that it is included, these amendments are necessary to protect the conscientious rights of all ADF officers.

Andrew Laming (Bowman, Liberal Party) Share this | Link to this | Hansard source

Mr Deputy Speaker Hastie, you yourself would be fascinated by the sudden outbreak of conscience thinking in the armed forces. As far as I'm concerned, the armed forces are an apparatus of the state. The state has agreed to a broadened definition of marriage. If you're a seconded religious chaplain from the church, the exemption exists for you. But, if you're not, then you're part of the state's apparatus—that is, the armed forces—and you follow a chain of command. This is a matter for the Chief of the Defence Force. If they are marrying, they are receiving a state salary and they adhere to the laws of the land.

I'm not in favour of these exemptions trickling through the armed forces. You would know very well, Mr Deputy Speaker, as I do, that I did not go to Afghanistan with body armour, a pay packet and the will of the Australian people. I went as a volunteer, but I knew when I got there that there's not a lot of conscience thinking when you are serving in the armed forces. If you're a chaplain you have the possibility of religious exemptions, if you are on secondment from a church. If you're taking a state salary, you're representing a nation that allows marriage in all these forms between two adults, and that's what you shall do as part of your service, otherwise you can leave the military.

An incident having occurred in the gallery—

Andrew Hastie (Canning, Liberal Party) Share this | Link to this | Hansard source

I remind the gallery that our somewhat half-hearted 'Christmas Grinch' Leader of the House has already stated that applause is not appropriate. I understand that it is a big week for many of you, but I just ask that you refrain from doing so.

And to the previous member, who commented on conscience overseas in operations: I assure you it's at the heart of every decision that ADF members make.

Alex Hawke (Mitchell, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I just want to correct a few things that have been said in this debate—and I do want to take a different step from the tone that was just taken in relation to Defence Force personnel.

We're not talking about the exercise of conscience on operations. Indeed, the serving men and women overseas obey their orders, and they do so, yes, as servants of the government. But military service is unique, and this amendment addresses a unique area of the Defence Force operations. I want to correct the member for Griffith and the member for Bowman about this. It was a recommendation of the Senate select committee. That is why it is in the bill. The amendment that I presented is to improve the nature of the law in the recommendation of the Senate select committee on the issue of chaplains in the Defence Force. We are dealing with that issue in this amendment, so no-one will be talking about issues of conscience amongst our serving personnel. It is specifically about the chaplains in the Defence Force, who, traditionally, have conducted marriages for service personnel overseas.

The reason it is in the bill is that it was part of the Senate select committee's considerations. They considered it. So the member for Griffith is dead wrong about that. It was recommended that it be inserted into the bill. It has been inserted into the bill; it is in the bill. What I am saying in this amendment, and in speaking to the House here, is about a workaround for what normally happens where the CDF appoints a religious officer who is also a serving officer of the Navy, Air Force or Army. What needs to be put into this bill is that we do not want to find out about a conscientious or religious objection overseas in the field. We're requiring the CDF to make that inquiry first, before appointing that officer. It could be the case under this legislation that an officer could be appointed by the CDF without that consideration taking place. It is a protection for the ministers of religion appointed by their denominations.

Let's get back to the core issue here, not the emotion. Let's get back to our reasoning in this debate. The issue is that the denominations of religion appoint these ministers to serve in the Defence Force. They are religious ministers, and it is not the principal purpose of their employment; it is the secondary purpose of their employment. The CDF appoints them to travel overseas. We do not want to find out in the field that one has been appointed to serve on an overseas mission and is required to marry a same-sex couple but they have a conscientious objection. That can happen under this bill. This is pre-emptive, it's practical and it's sensible, and it remains practical and sensible.

This is what the normal procedure of this House is. For those people here in the galleries who are watching a proceeding of parliament for the first time, this is what we do with bills. We improve them. There's no subversion; there are no underhanded tactics. We look at the law, we examine the impact of the bill and we suggest and propose practical amendments. This is one of those. It will improve the legislation and I commend it to the House.

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

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

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

by leave—I move amendments (1) to (3), as circulated in my name, together:

(1) Clause 1, page 1 (lines 14 and 15), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment (Definition and Protection of Freedoms) Act 2017".

(2) Schedule 1, page 5 (after line 17), after item 5, insert:

5A After section 5

Insert:

5AA Meaning of entity

(1) For the purposes of the Act, an entity means:

(a) an entity (other than an individual) within the meaning of section 184-1 of the ANew Tax System (Goods and Services Tax) Act 1999; and

(b) a non-entity joint venture within the meaning of section 195-1 of the ANew Tax System (Goods and Services Tax) Act 1999.

Note: The term entity includes body corporates, body politics, partnerships, unincorporated associations or other bodies of persons, trusts and superannuation funds.

(2) For the purposes of subsection (1), an entity is an entity regardless of whether:

(a) the entity is for-profit or not-for-profit; or

(b) the entity is a religious body or organisation; or

(c) the entity operates to make a profit or not.

5AB Meaning of relevant marriage belief

(1) A person holds a relevant marriage belief if the person holds:

(a) a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or

(b) any one or a combination of genuine religious or conscientious beliefs that are constitutive of, supporting of or a corollary of the belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, which beliefs may include, without limitation, any of the following beliefs:

  (i) a marriage that is not a union of a man or a woman is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person;

  (ii) the family structure of a man and a woman united in marriage with their children is a fundamental building block of human society, and this family structure has significant advantages for the nurture and raising of children;

  (iii) sexual relations should only occur within a marriage, understood as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life;

  (iv) the gender difference and complementarity of men and women is an inherent and fundamental feature of human society and is reflected in the gender difference and complementarity of a man and a woman united in marriage;

  (v) a fundamental feature of a marriage between a man and a woman is the modelling for children born from, or raised in, that marriage of the gender difference and complementarity of the man and the woman;

but for the avoidance of doubt, does not include the belief mentioned at paragraph 5AC(1) (b).

(2) An entity holds a relevant marriage belief if the entity has adopted:

(a) a belief mentioned in paragraph (1) (a); or

(b) one or more beliefs mentioned in paragraph (1) (b);

as beliefs the entity holds.

5AC Meaning of relevant belief

(1) A person holds a relevant belief if the person holds:

(a) a relevant marriage belief; or

(b) a genuine religious or conscientious belief that:

  (i) a same-sex relationship is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person; or

  (ii) the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth; or

  (iii) any one or a combination of genuine religious or conscientious beliefs that are constitutive of, supporting of or a corollary of a belief mentioned in subparagraphs (1) (b) (i) or (1) (b) (ii).

(2) An entity holds a relevant belief if the entity has adopted:

(a) a belief mentioned in paragraph (1) (a); or

(b) one or more beliefs mentioned in paragraph (1) (b);

as beliefs the entity holds.

5AD Determining when a belief is held etc.

(1) For the purposes of this Act, a person or entity holds a genuine religious or conscientious belief, or genuinely believes, if the holding of the belief (inclusive of the person's or entity's beliefs as to the actions, refusals, omissions or expressions that are consistent with, a consequence of, made in connection with, based upon, constitutive of, supporting of, or a corollary of that belief)is not fictitious, capricious or an artifice.

(2) For the purposes of subsections 5AB(2) and 5AC(2), but without limiting those subsections, an entity may state or adopt a belief as a belief the entity holds by:

(a) including the belief in its governing documents, organising principles, statement of beliefs or statement of values; or

(b) adopting principles, beliefs or values of another entity which include the belief;

(c) adopting principles, beliefs or values from a document or source which include the belief; or

(d) acting consistently with that belief.

(3) Schedule 1, page 15 (after line 26), after item 58, insert:

58A After Part VA

Insert:

Part VAA—Freedom of thought, conscience, religion, expression and association in relation to holding certain beliefs

88N Non -discrimination in the allocation of funding

(1) Despite any law, it is unlawful for the Commonwealth, a State, a Territory or a government entity to:

(a) decline to provide funding; or

(b) impose a condition on funding that is provided;

that discriminates against a person or an entity because the person or entity:

(c) holds a relevant belief or a relevant marriage belief; or

(d) acts, or refuses or omits to do an act, because the person or entity genuinely believes that the action, refusal or omission is consistent with the relevant marriage belief or relevant belief; or

(e) expresses the relevant marriage belief or relevant belief.

Note: For paragraph (1) (a), an example of funding is a grant made by the Minister under Part 1A of the Act.

(3) In this section:

government entity means:

(a) a government entity (within the meaning of the A New Tax System (Australian Business Number) Act 1999); or

(b) an entity established by or under a law of a State or Territory.

88O Charitable status

(1) An entity does not fail to satisfy the requirement in subparagraph (b) (i) of the definition of charity in section 5 of the Charities Act 2013 for the reason that:

(a) the entity holds, expresses or acts upon a relevant marriage belief or a relevant belief; or

(b) the entity refuses, or omits, to do an act because the entity genuinely believes that the action, refusal or omission is consistent with the relevant marriage belief or relevant belief.

(2) For the purposes of paragraph (c) of the definition of charity in section 5 of the Charities Act 2013, a purpose of an entity is not a disqualifying purpose (within the meaning of section 11 of that Act) for the reason that:

(a) the entity has a purpose of engaging in or promoting, or engages in or promotes, activities that the entity genuinely believes are in connection with, or as a consequence of, the entity holding, expressing or acting upon a relevant belief or a relevant marriage belief; and

(b) if it were not for this Part, the activities may be:

  (i) unlawful or contrary to public policy; or

  (ii) determined to be unlawful or contrary to public policy.

As I said in my speech on the second reading, the issue of same-sex marriage and it being passed by this chamber is not in question. That matter has been determined by the Australian people. This will be a significant day for many around the country, and it is not the intent of any of the amendments that are moved today to in any way frustrate that process. But what faith based and religious organisations are seeking—I have met with them and I have worked with them over many years and particularly as they have come to consider this significant change that is now taking place—is they will be able to continue to simply do what they have been doing, and the many good works that they do in our community and beyond our shores, without any question or any doubt about their status, in particular their charitable status, or any doubt or question about their ability to receive public funding for the work that they do, or any doubt that could be expressed on that in terms of them continuing to hold a view about marriage in its traditional understanding. They are simply seeking for the status quo for them to be maintained and to have an assurance.

The assurance they're seeking is so they can continue to get on with the wonderful work they do in education, the wonderful work they do in aged care and in respite care and the wonderful work that they do in health care and in disability care. Many religious and faith based organisations in particular, I have no doubt, will be providing a significant role in the delivery of disability care services under the National Disability Insurance Scheme. The assurance they're seeking is so they can continue to do amazing work as part of our overseas aid program. It is so they can do that without any question about their charitable status, their gift deductibility status or the public funding that they may be eligible to apply for under grants so they can continue do that important work. There is the work they do in employment services to get Australians into jobs. They're involved in that work as well.

One of the most important expressions of someone's faith is the practical action they undertake to help others. And, to the extent—and it is a very large extent—that religious and faith based organisations do this work, they do that as an expression of their love and care for others. They should be able to do that regardless of what their view of traditional marriage or same-sex marriage is. That issue should not come into question. This is an issue that has been raised by religious and charitable institutions concerned about the doubt and question that could be placed upon them.

As the member for Canning spoke to this House, he spoke particularly about the impact in the education area, but also he referred to correspondence that he had received—and I have seen the same correspondence—from over 40 different religious organisations and schools and the Maronite bishop who I spoke of in my address on the second reading. I seek leave to table those documents. I seek leave to table the correspondence that has been received from those Australians of faith and religious practice.

Thank you, Madam Deputy Speaker. I do now; I've checked with the Clerk, yes. It's a private member's bill. I thank the House for the opportunity to do that.

The questions that arise go to the issue of the public interest test and the conformity with public policy under common law and how that could impact on charitable status. That is experienced particularly in overseas jurisdictions—like New Zealand, Canada and the United States—where these questions have been raised and can potentially impact here in our own jurisdictions with the passage of these laws.

We have received advice from the charities commission and they have supported the view that the amendments that I'm putting forward here would put beyond doubt this question. Why would we want this question to be in doubt? Putting the question beyond doubt does not take away at all the change that is being voted on here and, I'm quite certain, will be passed here by this parliament. It simply ensures that the great faith works—that the fragrance of faith that is in our community and is serving our community will continue to be able to be experienced by Australians here and by many people around the world as a result of their very great faithful works, which they do in service of their community and in obedience to their faith.

These changes do not threaten same-sex marriage; they don't seek to prevent it and they don't seek to frustrate it. They simply are seeking the status quo of them being able to do what they do without question or threat. I can assure you that as Treasurer in the Turnbull government, and with my colleagues, our government would never seek to deny that public funding or that charitable status. We would never do that and it would certainly never happen on my watch as Treasurer. But I cannot provide that guarantee forever. I can't provide a guarantee about a potential government at either a Commonwealth or state level who may seek to withdraw those rights or to take away that certainty and take away that support and drive people of faith and organisations of faith serving our community from the public square. They are simply today accessing charitable status and gift deductibility status and competition for accessing grants funds, which already exist, so there's no extra cost. It's just allowing these organisations to get on with the job. I commend the amendments to the House.

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

These amendments are completely unnecessary. Religious charities, we all agree, provide essential services for our community, and their charitable status will not be affected by their stance on marriage. A charity may advocate on any matter relevant to that charity, and nothing in this bill will change that—the same way charities that support marriage equality have not had their charitable status revoked in all the years prior to today.

Importantly, the charities commission and the tax commissioner have both confirmed that this amendment and changes to the Marriage Act will not impact on the charitable status and DGR status. I will make reference to a couple of letters where we sought clarification on this issue. The first one is from the Australian Taxation Commissioner. In his response, he said:

… a religious charity holding or expressing a view of a religious nature (position on marriage) will not have an impact on DGR endorsement.

Similarly, lawful refusal to conduct a marriage ceremony, deliver goods and services or hire facilities in accordance with the Future Marriage Act will be unlikely to impact DGR endorsement. These activities would fall outside the scope of the general DGR categories and would not prevent DGR endorsed religious charities from fulfilling their DGR purposes.

The second one is from the Australian Charities and Not-for-profits Commission, and again we sought clarification from the acting commissioner. The advice we have received says: 'Different religions take different positions on a range of social issues, including marriage. The law of charity does not endorse the beliefs or practices of one religion over another. It follows that, if a charity with a purpose of advancing religion currently holds and expresses a view or position on marriage that is based on the beliefs, tenets or doctrines of the religion it advances, its status as a charity as defined in the Charities Act will not be negatively affected by reason merely for its continuing to hold and/or express the view following the enactment of the future marriage act.' And they went on because there have been some issues raised in relation to other jurisdictions. The ACNC is aware of those raising concerns about the possible effects of the future Marriage Act and has cited cases in other jurisdictions, including the United States, Canada, the United Kingdom and New Zealand and goes on to state that these cases provide limited guidance or assistance in determining questions on charity status under Australian law.

We thought that last one was a little bit ambiguous and we thought we would seek further clarification, which we did. The clarification that came back said that the ACNC view is that under the current ACNC and Charities Act framework, it is unlikely that a charity for the advancement of religion could lose charitable status by adopting or advocating for the pre-existing definition of marriage—that is, it would be unlikely that a lawfully-held view and an advocacy of that view would be against public policy or public benefit. So clearly the view is there. For the record, I seek leave to table those documents.

Leave granted.

I thank the House. The Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill inquiry into the George Brandis exposure draft that led to this bill comprehensively considered the issue relating to religious freedoms and didn't find any need for extra protections for charities. The government indicated earlier there will be an inquiry into the broader issue of religious freedoms. That inquiry next year will be undertaken by four very eminent individuals in the Honourable Philip Ruddock, Father Frank Brennan, former Federal Court judge Annabelle Bennett and the President of Australian Human Rights Commission, Rosalind Croucher. If there are any genuine concerns, I can't think of a more qualified panel to fully explore the risks and how best to deal with them. Like I said, I don't think these concerns will be borne out by the evidence, but my colleagues should take comfort in the process and accept that that is an appropriate forum to deal with them.

What we don't need is to rush into these amendments at the eleventh hour when the bill has been out there for consultation for almost four months. (Time expired)

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

Do you wish to continue?

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

A good reason why we don't want to rush into these is that the provisions around government funding could lead to unintended consequences. These amendments propose that religious organisations should not be at a disadvantage for government funding. However, this interferes with the government's ability to make decisions about which organisations are best able to deliver services, and what would the government do about a contract for LGBTI sexual health services awarded to the Catholic Church? It would be hard to see how this amendment could work in practice. What is clear in these amendments is they are completely unnecessary, they certainly carry risks and they should be opposed.

Nicolle Flint (Boothby, Liberal Party) Share this | Link to this | Hansard source

I rise to support the amendment moved by the Treasurer and note that, as we seek to pass the legislation that aligns the rule of law with the will of the Australian people as determined by the national plebiscite, I want to note that I will be ensuring the substantive bill passes as per the will of the Australian people and my electorate. We must remember our responsibility to all Australians and pass a bill that is balanced and affords religious protections. To that end, it is our duty to ensure that amendments to the Marriage Act do not occur to the detriment of others. More specifically, it is our duty to ensure that adequate protections are in place to protect the significant work done by faith based charities to ensure that both views of legal marriage are recognised, to ensure adequate rights are in place for military marriage celebrants—as we have heard in previous motions—and to protect freedom of speech for all Australians.

These amendments and specifically this amendment seek to foster freedom in our society, which goes to the foundation of our democracy. Indeed, as I said in my maiden speech, we want people to have the freedom to speak without fear and to defend their ideas and their ideals not with violence or threats or court cases but through robust and respectful debate.

Faith based charities undertake approximately two-thirds of charitable endeavours in vital areas such as health, aged care, foster care and homelessness. It would be irresponsible for the parliament not to provide the protections that will ensure the future of these entities. My colleague has just read from the letter from the ACNC, and I note that they did suggest that '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 if held or expressed prior to the enactment of the legislation would not have had such an effect'. That's why we are moving this amendment. We need to protect faith based charities from experiencing detrimental conduct by public authorities by ensuring that governments cannot withdraw funding from an individual or entity solely because that individual or entity holds a traditional view of marriage.

Unfortunately, the international experience shows that, unless religious protections are contained within the legislation, disputes and lengthy and costly litigation is inevitable and, ultimately, it will be the recipients of service provided by these organisations that will suffer. This is a particular concern held by many faith based charities, who, for unique historical reasons in Australia, comprise a significant majority of government funded charitable services providers. Their concern is not unfounded. It is fuelled by consistent calls for the removal of government funding from charities that rely upon religious freedom exemptions in the antidiscrimination laws. The amendments moved by the members for Cook and Mallee will provide much-needed certainty and associational freedom for Australian charities. They'll ensure that existing faith based charitable entities can continue to function effectively without the added risk of losing their means to do so.

We must protect freedom of speech, freedom of religion and freedom of thought. Currently, federal law provides no protections for Australians who support traditional marriage based or their religious or conscientious views. Freedom of speech is an issue that I and many on this side feel strongly about. I emphasise that none of the amendments moved by my colleagues allows, condones or encourages discrimination against same-sex married couples or people of same-sex orientation. Rather, they legislate for a change to the definition of marriage in a manner that provides the legal guarantees that millions of Australians are asking for. These amendments protect organisations and individuals that support a traditional definition of marriage against discrimination or detrimental conduct respectfully and fairly.

I note that charities in countries similar to Australia have been stripped of their charitable status due to their support for the traditional view of marriage. We don't want to see that happen here. Unless amended, the marriage amendment bill may cause Australian charities to have their status revoked and their funding stripped. This would stop a lot of the good work they do for the people they help and put an unnecessary financial burden on hundreds of thousands of volunteers who give their time freely. That's why we have moved the amendment to provide certainty for faith based charities and the wonderful volunteers who support them and so many Australians.

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

Labor opposes these amendments, which are unrelated to marriage and completely unnecessary. The changes proposed by these amendments are not even being asked for by charitable organisations, which do excellent work and will continue to be able to do so after marriage equality is enacted. Amendment of the Marriage Act will not affect a religious charity's funding. There is no reason why advocacy for a traditional view of marriage which is relevant to a religious charity would affect their funding. There's been quotation by some of the previous speakers from correspondence from the Assistant Charities Commissioner, and the effect of that correspondence is to confirm that this proposed amendment is not necessary. The Taxation Commissioner has also confirmed that this amendment is not necessary, and there has been confirmation of that by Not-For-Profit Law, which provides legal advice to charities.

There's no reason why advocacy for a traditional view of marriage which is relevant to a religious charity would not be for public benefit under Australian law. A charity may advocate on any matter that is relevant to that charity, and a change in the law on the definition of marriage will not change that. The Aid/Watch case, which was a decision of the High Court of Australia, and the Charities Act both protect a charity's right to advocacy as long as it does not take on a party- or candidate-partisan purpose. The exemptions for religious charities from otherwise unlawful discrimination will not change if the definition of marriage changes. There's no reason for religious charities to fear they will be impacted adversely if marriage equality becomes law.

Labor's strong position is that Australians voted to lessen discrimination, not to extend it. We do not object to debates being had about religious freedom, but now is not the time or place. Our priority is achieving marriage equality and we should get on with it.

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

Madam Deputy Speaker, I rise on a matter of indulgence. For the benefit of the House, I will just explain the process for the afternoon because we're getting very close to the 90-second statements automatic cut-off and quite a few people travelled here from elsewhere to see the results of this debate on marriage equality.

At 1.30 pm we'll automatically start the 90-second statements suspension of standing orders. That's not because we want to clear the galleries of people who are interested in marriage equality, but there are quite a lot of people who book in for question time, and we don't want there to be a breakout in the gallery as some people are trying to come in and others are wondering why they're being pushed out of their spots. So at 1.30 pm we'll end this debate. There'll be half an hour of 90-second statements and then question time, and then we'll return to the debate after the MPI this afternoon. That means we'll get back to this debate closer to 4.15 pm or 4.30 pm.

Obviously, we'll have a vote on it this evening, but that's the vagaries of the parliament. I apologise for those people who expected it to be earlier but we are having a genuine debate.

Mr Tony Burke (Watson, Australian Labor Party, Manager of Opposition Business (House)) Share this | Link to this | Hansard source

Madam Deputy Speaker, I rise on indulgence about the times that people have been given. The matter of public importance debate that the Leader of the House just referred to is submitted by a member of the opposition each parliamentary day. Today, that's been submitted by me. I have assured the Prime Minister that the speech I was going to deliver had every chance of bringing down the government this afternoon! But if we withdraw the MPI it means we start this debate again at 3.15 pm rather than 4.15 pm. In the spirit of making sure that we get this done, we'll defer the speech to bring down the government until we return in February and at 3.15 pm—after question time—we'll be back on this bill.

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

As the Treasurer said earlier, our society is absolutely unimaginable without the schools, the hospitals, the employment agencies and the drug and alcohol rehabilitation services that the great Christian charities have provided for hundreds and hundreds of years. And it's their faith that drives them. They do it because of their faith motivation, and part of that faith is that marriage is between a man and a woman, preferably for life and, usually, dedicated to kids.

Once same-sex marriage is enshrined in law, on public policy grounds, organisations that don't recognise same-sex marriage could, indeed, be subject to some kind of official sanction. Overseas, this has happened. Catholic adoption agencies have been forced to withdraw their services. Orthodox Jewish schools have had their funding threatened. American Christian colleges have had registration refused to their law graduates because of their teaching on marriage. Don't think that it can't happen in this country; it already has. I recall, as employment minister, back in 2003 finding a Human Rights Commissioner threatening faith based employment agencies because of their own employment practices. If that threat had been acted upon, they would have had to withdraw their services.

So these amendments are important. I stress: they are not against same-sex marriage. They are simply in favour of the rights of religious organisations to keep doing what they have always done in the great interests of the Australian people.

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

The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour.