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senate vote 2017-11-28#7
Edited by
mackay staff
on
2017-12-24 18:15:08
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Title
Bills — Marriage Amendment (Definition and Religious Freedoms) Bill 2017; in Committee- Marriage Amendment (Definition and Religious Freedoms) Bill 2017 - in Committee - Religious organisations
Description
<p class="speaker">David Fawcett</p><p>by leave—I, and also on behalf of Senator Paterson, move amendments on sheet 8330 together:</p><p class="italic">(1) Clause 1, page 1 (lines 6 and 7), omit "<i>Marriage Amendment (Definition and Religious Freedoms) Act 2017</i>", substitute "<i>Marriage Amendment (Definition and Protection of Freedoms) Act 2017</i>".</p>- The majority voted against [amendments](http://www.openaustralia.org.au/senate/?gid=2017-11-28.199.1) related to religious organisations that were introduced by Liberal Senator [David Fawcett](https://theyvoteforyou.org.au/people/senate/sa/david_fawcett) (SA) also on behalf of Liberal Senator [James Paterson](https://theyvoteforyou.org.au/people/senate/victoria/james_paterson) (Vic).
- See Senator Fawcett's [explanation of the amendments](http://www.openaustralia.org.au/senate/?gid=2017-11-28.199.50) for more information.
- ### Why did some Liberals vote Yes and others No?
- The Liberal Party was split on this issue, with some voting Yes and others voting No. This split within the party is unusual but, given the nature of the subject matter of the vote, the Liberal Party decided to run this as a free vote, meaning that its members could vote however they chose rather than having to vote along party lines.
- ### What does this bill do?
- This [bill](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/s1099) will allow same-sex couples to marry under Australian law. However, it will also:
- > *enable ministers of religion, religious marriage celebrants, chaplains and bodies established for religious purposes to refuse to solemnise or provide facilities, goods and services for marriages on religious grounds; and make amendments ... to provide that a refusal by a minister of religion, religious marriage celebrant or chaplain to solemnise marriage in prescribed circumstances does not constitute unlawful discrimination.*
- Read more in the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1718a/18bd054).
<p class="italic">(2) Schedule 1, page 17 (before line 4), before item 63, insert:</p><p class="italic">62C Subsection 37(1 ) ( d)</p><p class="italic">Repeal the paragraph, substitute:</p><p class="italic">(d) any other act or practice of a body established for religious purposes, being an act or practice that is consistent with the doctrines, tenets or beliefs of that religion or is because of the religious susceptibilities of adherents of that religion.</p><p class="italic">62D At the end of section 37</p><p class="italic">Add:</p><p class="italic">(3) Despite any law (including any provision of this Act and any law of a State or Territory) a body established for religious purposes includes, and shall be deemed to have always included, without limitation, a body:</p><p class="italic">(a) that is a:</p><p class="italic">  (i) not for profit entity; or</p><p class="italic">  (ii) charity under the <i>Charities Act 2013</i>, including any public benevolent institution (regardless of whether any of the charitable purposes of the entity is advancing religion);</p><p class="italic">(b) where that body:</p><p class="italic">  (i) is established by or under the direction, control or administration of a body established for religious purposes; or</p><p class="italic">  (ii) is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; or</p><p class="italic">  (iii) is a body to which subsection (4) applies.</p><p class="italic">(4) A charity that has a charitable purpose pursuant to the <i>Charities Act 2013</i> that is not advancing religion may be a body established for religious purposes through advancing that other charitable purpose:</p><p class="italic">(a) where that other charitable purpose is an effectuation of, conducive to or incidental or ancillary to, and in furtherance or in aid of, the advancement of its religious purpose; or</p><p class="italic">(b) where the advancement of religion is an effectuation of, conducive to, or incidental or ancillary to, and in furtherance or in aid of, that other charitable purpose.</p><p class="italic">(5) Subsection (4) does not limit the circumstances in which a charity that has a charitable purpose that is not advancing religion may be a body established for religious purposes through advancing that other charitable purpose.</p><p class="italic">62E Subsections 38(1), (2) and (3)</p><p class="italic">Omit "in order to avoid injury to", substitute "because of".</p><p class="italic">62F After section 38</p><p class="italic">Insert:</p><p class="italic">38A Determining when an act or practice is consistent etc.</p><p class="italic">(1) For the purposes of paragraph 37(1) (d), an act or practice is consistent with the doctrines, tenets or beliefs of that religion if the body established for religious purposes holds a belief that it is consistent with the doctrines, tenets or beliefs of that religion and that belief is not fictitious, capricious or an artifice.</p><p class="italic">(2) For the purposes of paragraph 37(1) (d), an act or practice is because of the religious susceptibilities of adherents of that religion if the body established for religious purposes holds a belief that it is because of the religious susceptibilities of adherents of that religion and that belief is not fictitious, capricious or an artifice.</p><p class="italic">(3) For the purposes of section 38, an act or omission is because of the religious susceptibilities of adherents of that religion or creed if the institution holds a belief that the act or omission is because of the religious susceptibilities of adherents of that religion and that belief is not fictitious, capricious or an artifice.</p><p class="italic">(4) A body or institution holds a doctrine, tenet or belief if it has adopted that doctrine, tenet or belief. Without limiting the foregoing, a body or institution may adopt a doctrine, tenet or belief by:</p><p class="italic">(a) including the doctrine, tenet or belief in its governing documents, organising principles, statement of beliefs or statement of values; or</p><p class="italic">(b) adopting principles, beliefs or values of another body or institution which include the doctrine, tenet or belief; or</p><p class="italic">(c) adopting principles, beliefs or values from a document or source which include the doctrine, tenet or belief; or</p><p class="italic">(d) acting consistently with that doctrine, tenet or belief.</p><p class="italic">38B Sections 37, 38 and 38A are intended to " cover the field "</p><p class="italic">(1) Despite any law, but subject to subsection (3), it is the intention of Parliament that, in order to recognise the protections, rights, privileges and entitlements of a body or institution to which sections 37, 38 or 38A apply, and to ensure that such protections, rights, privileges and entitlements are recognised equally and without discrimination in all States and Territories, sections 37, 38 and 38A operate:</p><p class="italic">(a) to cover the field in relation to those protections, rights, privileges and entitlements; and</p><p class="italic">(b) to provide a complete, exhaustive and exclusive statement of the law relating to those protections, rights, privileges and entitlements; and</p><p class="italic">(c) to exclude and limit the operation of the laws of the States and Territories in relation to those protections, rights, privileges and entitlements.</p><p class="italic">(2) For the avoidance of doubt, and without limiting subsection (1), but subject to subsection (3), despite any law, if a protection, right, privilege or entitlement granted, or a limitation provided for under section 37, 38 or 38A 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.</p><p class="italic">(3) The protections, rights, privileges and entitlements of a body or institution to which sections 37, 38 or 38A apply are in addition to the protections, rights, privileges and entitlements provided under any law of the Commonwealth or a State or Territory. Nothing in subsections (1) or (2) shall exclude or limit the operation of the laws of the Commonwealth or a State or a Territory that are more protective of those protections, rights, privileges and entitlements.</p><p class="italic">(3) Schedule 1, item 63, page 17 (line 27), omit "conforms to", substitute "is consistent with".</p><p class="italic">(4) Schedule 1, item 63, page 17 (line 28), omit "necessary to avoid injury to", substitute "because of".</p><p>As I move this group of amendments, I'd like to note that this is the last of the group of amendments that Senator Paterson and I have put forward, which is in quite stark contrast to the diatribe that's been directed against those of us who have voted 'no' in this. We were told that we were going to be filibustering, seeking to delay and frustrate the will of the Australian people. We have actually put forward considered amendments. We've been very disciplined in our contributions, seeking not to take every 15-minute block available but to make the case and then to answer questions or correct facts. Can I just say to senators present and to the Australian public that that, generally speaking, is characteristic—there are always exceptions—of how people in the community who support the traditional definition of marriage went about the campaign.</p><p>I struggle to think of a time when you saw people who support the traditional definition of marriage barricading events and seeking to prevent 'yes' campaigners from meeting or advocating or speaking. I struggle to think of times when 'no' campaigners interrupted meetings and had advocates jumping on stages with banners. I struggle to think of a time when on university campuses 'no' campaigners were overturning tables and threatening violence. So throughout this whole campaign right through to tonight, when we've been dealing with these amendments, I think the Australian public can look and see that those who support traditional marriage are far from the bigoted people who seek to visit violence on others or to unnecessarily delay and frustrate this process, that these amendments have been put forward in good faith because of genuine concerns that have been raised by members of the Australian community who gave evidence to the Senate select committee and who have been actively engaged in the 'no' campaign.</p><p>In good faith I'll move this last set of amendments, and I'll seek to have people actually listen to the debate. I'm disappointed, as are other members, that those opposite aren't able to exercise their conscience on this debate.</p> <p class="speaker">Jacinta Collins</p><p>That is not true.</p> <p class="speaker">David Fawcett</p><p>On these amendments?</p> <p class="speaker">Jacinta Collins</p><p>That is not true.</p><p>Honourable senators interjecting—</p> <p class="speaker">David Fawcett</p><p>My intent there was not to raise a howl of protest but to note the fact we have tried in good faith to put forward amendments, but there have been many times—exemplified by the objections that have been raised, which have indicated that some people have clearly not read the amendments, understood their intent or listened to the explanations—that the votes have continued to retain the starting position. If in this chamber of all places we can't actually engage in sensible dialogue, listen to each other and have reasoned arguments then I do fear for the future of where this might go.</p><p>The last amendment addresses an issue that we touched on before, religious organisations. Much of the protection that people have talked about in this debate that goes to religious organisations rides on the fact that they are recognised as a religious body. We have seen that there have been interventions, for example, by courts, tribunals or other bodies that have made determinations about whether or not people are in fact a religious body.</p><p>If I go to the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, which was proclaimed by the General Assembly of the UN in resolution 36/55, the declaration provides that 'the right to freedom of thought, conscience, religion and belief' includes the freedom to 'establish and maintain appropriate charitable or humanitarian institutions'. The ability of those institutions to control the appointment of their staff and leaders is important if they're going to maintain their faith based character.</p><p>What we've seen in Australia is the action of courts—I mentioned in the debate on the last group of amendments the actions of the Court of Appeal in Victoria in the Cobaw case, where they inserted themselves between the body and the members of the body to decide what those members did or didn't believe. It's not the role of courts to determine what a religious body does or doesn't believe so they can determine whether or not they have the protections that being a recognised religious body would bring.</p><p>Also, despite what the UN says under international law about the right of religious bodies to create charitable bodies, we've seen the national charities commission intervene. In Queensland, the Anti-Discrimination Tribunal said that the St Vincent de Paul Society was not a religious body. I think that defies common sense. Anyone who knows Vinnies knows that they do the charitable work they do because of their faith. They reach out with compassion to help people. But that decision of a tribunal removes the status of being a religious body and therefore removes all the protections that people have been saying in this place will flow to a religious body. So the purpose of these amendments is not some abstract link to a foreign law; it's linked to very real examples here—what happened with the courts in Cobaw and what happened to St Vincent de Paul in Queensland, where they were determined to not be a religious body, which then directly impacts on their ability to employ people and ensure, for example, that the president of Vinnies is a Catholic, which maintains consistency with their faith and their approach. It directly goes to the protections that people have talked about here for those who wish to hold their religious view of marriage.</p><p>So these amendments shouldn't be controversial. They relate to real cases in Australian law. They protect the charities and provide certainty to charities around whether or not they will be regarded as religious bodies. As I say, these are drawn from the international guidance that says religious bodies can establish an organisation for charitable purposes but they are religious by nature. We're just seeking the certainty for those bodies in law. I commend these amendments to the Senate.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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