David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Hansard source

On the point of order: Senator Bernardi was in the chair, at the other end of the chamber from me. There were several voices calling for it, including Senator Anning's.

The CHAIR: Thank you. I believe that we have met the two required voices, Senator Bernardi.

() (): I move item 2 on sheet 8321 revised, standing in my name:

(2) Schedule 1, page 11 (line 20), after item 47A, insert:

47AA Authorised celebrants (other than State and Territory officers) not bound to solemnise marriages etc.

Subject to subsection 39(4), nothing in this Part:

(a) imposes an obligation on an authorised celebrant to solemnise any marriage, or

(b) prevents such an authorised celebrant from making it a condition of his or her solemnising a marriage that:

  (i) longer notice of intention to marry than that required by this Act is given; or

  (ii) requirements additional to those provided by this Act are observed.

[authorised celebrants (other than State and Territory officers)]

This amendment extends the freedom to refuse to solemnise a marriage to all civil celebrants who are not state government employees. This similar amendment has been moved a couple of times previously. I know that senators have voted against that, but, because mine is the best way of achieving this, I know you are waiting to vote for my amendment. This is a freedom currently enjoyed by ministers of religion. Senator Smith's bill before us today only proposes to extend this freedom to religious celebrants.

Let me outline two arguments for my amendment that should appeal to left-leaning supporters of legalising same-sex marriage. Firstly, religion should not be afforded a privileged place in a secular state. As I have said previously on Senator Hanson's version of this amendment, people who are not religious still have convictions and they still have freedom of conscience, as much as people who are religious. People who are not religious should not be treated as second-class citizens.

Secondly, if we fail to extend the freedom to refuse to solemnise a marriage to all non-government celebrants, we will be left in a situation where celebrants who only want to solemnise straight marriages can do so under the cover of religion but celebrants who only want to solemnise same-sex marriages will not be able to do this as there is no religious cover for such a decision. We will be hurting the gay community. For left-leaning senators still planning to vote against my amendment, even though voting in this way would represent an unequal treatment between religious and non-religious celebrants, please do not use the dubious excuse that the Constitution requires special treatment of religious celebrants. The Marriage Act need not have any reference to religion, just as occupational licensing laws have no special category for religious architects, religious financial planners or religious mechanics. In fact, such an approach would have a sound constitutional basis, given that section 116 states that no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

If certain senators do not want any celebrant recognised by the state to be able to discriminate, they should have the courage to put forward amendments that would make this the law. The substance of my amendment aligns with the substance of One Nation's amendment which we previously considered and is similar to the Attorney-General's amendment of yesterday which we also considered. I didn't mind which one got up, but, since neither of those two have got up so far, I am proceeding with mine.