Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

I rise to indicate the Labor Party's position in respect of these amendments and, at the outset, indicate that our position will be to oppose them. I want to deal with a couple of matters raised in the debate and then turn to the broader philosophical framework which underpins the argument for these propositions.

First, in relation to the amendments, we do not believe it is a sensible proposition to include another definition of 'marriage'. I note that Senator Paterson said, 'There's no harm in it.' Well, if there are two sets of definitions of the same issue, that generally is something that invites problems in terms of the subsequent application of the law. Second, we are concerned, for some of the reasons that Senator Smith has outlined, about extending the notion of protection beyond religious belief to that of conscientious objection. And I'll return to that shortly.

Also, I do want to respond to the comments of a couple of senators about the Labor Party's position and place on record that, yes, there are senators on my side of the chamber who do have a different position to that of the party's platform in that they do not support marriage equality, and they have a conscience vote on that. They have not sought a conscience vote in relation to the amendments before the chamber. I think that it is important for us to recognise that that is not the assertion that was put by some senators on the other side.

Can I first move to the broader philosophical context. I think there is a tendency to conflate a right to religious belief and the way in which that right ought be treated under the law that is universally applicable to Australians. This actually goes to the heart of how a secular state deals with differences of religious belief or, in this case, as Senator Fawcett urges us to do, conscientious objection. It is not just about the balance, but about how we, as a secular state, respect peoples' right to particular religious beliefs and how we deal with that in terms of the application of the law. What we need to recall is that there is a distinction under our law between a right to believe and a right to act on that belief. There is a distinction in our law between a right to hold a belief and the exemption of someone from laws that otherwise apply universally to Australians because of that belief.

There have been occasions when the parliament and the community have said that we will provide someone, because of their particular beliefs, with an effective exemption from the law that otherwise applies to Australians. The Sex Discrimination Act is an example of that. We know, and it's been well-traversed in other discussions, that under the Sex Discrimination Act there are exemptions for particular entities from the application of the law that otherwise applies universally to Australians—for example, religious institutions or schools run by religious institutions. We've recently seen a teacher dismissed because of his sexual orientation.

I do think it is important that we recognise that distinction, because what Senator Fawcett's amendments are actually seeking is a proposition that, in relation to civil celebrants, the universality of the application of the secular law of Australia should not apply to someone on the basis of this new notion—and it is a new notion in Australian law—of conscientious objection. I do want to very much endorse Senator Smith's comments. This is a very big concept to introduce: to suggest that we should have a different treatment of Australians based not on an identified religious belief, which is known in our law and has been, effectively, negotiated or considered by the parliament in the context of various antidiscrimination legislation, but on a new notion of conscientious objection, which has been introduced in this debate about marriage equality, as a basis for not applying the law universally. This is a very unorthodox step, and, I agree, it is an illiberal step.

I also make this point: I was interested to note that the same notions were supported by representatives of the celebrant associations. The chair of the Coalition of Celebrant Associations, Ms Harrison, said:

We don't approve of exemptions. We feel that if that's the law of the country, then that's what you do. We have discrimination laws and we have to live by them.

The founder of the Civil Celebrations Network, Ms Goold, stated:

Don't bring in a law to get rid of discrimination and build in more discrimination.

Behind those words is actually a very important philosophical concept, which is: as civil celebrants, we accept that we apply the law of Australia as expressed or enacted by the parliament and as is set out in this bill.

One of the very important points about the bill that Senator Smith, I and others have brought forward—and, more importantly, that was worked through by the cross-party select committee—is that it does seek to ensure that we implement marriage equality within the context of Australia's existing antidiscrimination legislation. That is not just an important process point. It is an important point of principle. The Australian people were not asked: when you vote for marriage equality, do you reckon we should also extend the exemptions from the universal application of antidiscrimination law to more people?

That was not asked. I respect and understand the position—whilst I disagree with it—of those who were emphatic in the 'no' campaign, and there are some of them in this chamber. But it is not the case that your campaign focused on whether or not there should be exemptions for people on the basis of conscientious objection. Your campaign focused on a lot of things, some of which we found quite difficult, but I think that's for a discussion on another day.

The final point I wanted to make is this: when we are considering how, as a secular state—and we are a secular state that also respects religious belief—to deal with the religious belief that others hold, I think it is very important that we are clear about what we are seeking to protect. I read a very good essay by a lawyer from the University of Tasmania, and she made the point that we ought not:

… blur the distinction between the absolute right to belief and the limited right to act on those beliefs.

In much of this debate, there is a conflation of those two notions. We do not conflate those two notions in Australian law, and, on those occasions where we have sought to enable a limited right to act on belief in a way that is different to the way other Australians are treated, this parliament has been considered and careful about how it has approached that. We do not support the Paterson amendments for the reasons outlined.