Dean Smith (WA, Liberal Party) Share this | Hansard source

I, of course, will be opposing the amendments of Senator Paterson and Senator Fawcett. The discussion this afternoon has focused on three key elements: firstly, what the place of a civil celebrant performing a civil law function is; secondly, what the place in our laws of conscientious objections is; thirdly, what the real analysis, the most accurate analysis, in regard to the 'yes' vote is and what the 'yes' vote actually says. There is a stark difference between the composition of the bill that's been before this parliament now for a number of weeks—a bill that's been before the public for many, many months; a bill that was born out of a very comprehensive Senate committee process with a tremendous amount of scrutiny, 400 submissions and 40 to 50 witnesses—and the set of amendments that have been put before the parliament only in the last little while, drawn from a bill that is unorthodox in the way that it seeks to apply the law in Australia.

The place of a civil celebrant in our country is clear: it should perform the function of the law. This seeking to create a class of civil celebrants that would be excused, in this circumstance, from applying the civil law was an accommodation that was drawn out of that very deliberate and considered Senate committee process. Proponents of the amendment say that the Smith bill only extends religious freedom rights to celebrants who are also ministers of religion. It thus 'fails to recognise the religious freedom rights of celebrants who, though they are not an ordained minister, wish to express their religious convictions in respect of marriage'. This limitation was not recommended by that Senate committee, it suggested. Let me read you what the Senate committee said:

The committee considers that such celebrants perform a function on behalf of the state and should be required to uphold Commonwealth law (including anti-discrimination laws). That said, the committee heard that some civil celebrants would feel compromised at having to solemnise a same-sex marriage, if the law were changed. The committee respects this position and proposes the inclusion of these celebrants in new Subdivision D (Religious Marriage Celebrants) of Division 1 in Part IV of the Marriage Act.

What does that mean? This is a distinction and deliberate accommodation of those competing views in our country about how a law change to give affect to same-sex marriage should be accommodated in our existing laws. It is responsible; it is sensible; it has the support of the community. Compare that to a new idea, an unorthodox idea.

This brings me to the second point: what is the place of conscientious objection in Australian law? This is a serious issue, and one that must be given the utmost care and consideration, not in last-minute amendments on an issue that has been of topical nature for many, many months—indeed, many, many years. It deserves very careful consideration. Why does conscientious objection, in this context, deserve very, very careful consideration? It is because it will undermine the purpose of the bill that has been deliberately and consciously drawn from the Senate committee process to remove discrimination. It will wind back discrimination protections that have been long respected and long established in our country. It would allow for discrimination for any reason. It provides less certainty than does religious belief and it is, in actual fact, not required under international law. More pertinently, to many in our community, it will single out LGBTI people and increase uncertainty for LGBTI people in our community.

It's worth going to the evidence. Those people who have not had the opportunity yet to review the Hansard, to review the submissions and to understand properly the issue of conscientious objection, I encourage you to go to the evidence before the committee. It was put to the committee that:

Almost no Commonwealth laws permit actions that would otherwise be unlawful—let alone actions that would otherwise constitute unlawful discrimination—because the person in question is acting in accordance with their conscience, as separate and distinct from religion.

…   …   …

Permitting a celebrant to discriminate on the basis of conscience, as distinct from their religious beliefs, exceeds the exemptions contained in the Sex Discrimination Act and all state and territory anti-discrimination and equal opportunity laws …

These are actually not minor issues. It's not even correct to call them amendments because what they seek to do is substantially change the way the bill is constructed. Let me remind you that the ethos of this bill, the building block of this bill, is: how do we effectively give effect to same-sex marriage in our country within the context of our existing religious protections in Australian law? This bill is an evolutionary opportunity to bring same-sex marriage to life in our country and to give effect to the resounding survey result, and it recognises and accepts that the religious protections that currently exist in Australian law are suitable—those protections that exist in the Fair Work Act and those protections that exist in the Sex Discrimination Act. So this, actually, is an accommodation of some of those competing interests. It is a safe, sensible, considered way in which to move our country from its current law to one that gives effect to same-sex marriage. Beware: the Paterson bill was unorthodox. It was illiberal. The Paterson-Fawcett amendments are borne of that same bill—illiberal, unorthodox.

Colleagues, I will be opposing this amendment. The Senate committee process was robust. It is a bill that has been in the public domain for many months. It is a bill that has accomplished widespread endorsement, even from church leaders, even from people of faith. The 'yes' vote, I would argue, is a demonstration that people in our country were happy to give effect to same sex-marriage in our country and accepted and recognised that the existing religious protections in our laws were sufficient.