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senate vote 2017-11-28#8
Edited by
mackay staff
on
2017-12-24 17:48:22
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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 freedom
Description
<p class="speaker">George Brandis</p><p>I, and also on behalf of Senator Canavan, move government amendment (1) on sheet 8333 revised:</p><p class="italic">(1) Page 3 (after line 5), after clause 3, insert:</p>- The majority voted against an [amendment (1) on sheet 8333](http://www.openaustralia.org.au/senate/?id=2017-11-28.146.2), which was introduced by Liberal Senator [George Brandis](https://theyvoteforyou.org.au/people/senate/queensland/george_brandis) (Qld) also on behalf of Liberal Senator [Matthew Canavan](https://theyvoteforyou.org.au/people/senate/queensland/matthew_canavan) (Qld).
- ### Amendment text
- > *(1) Page 3 (after line 5), after clause 3, insert:*
- > *4 Protection of religious freedom*
- > *Nothing in this Act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching.*
- ### 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">4 Protection of religious freedom</p><p class="italic">Nothing in this Act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching.</p> <p class="speaker">Cory Bernardi</p><p>On a point of order. Senator Hanson was on her feet for at least two minutes before you asked Senator Brandis and you made the concession to him. Senator Brandis then pulled the stunt as 'I'm Leader of the Government.' This is not a government bill; it is a private senator's bill. You should do exactly the right thing and ask Senator Hanson to move her amendment.</p> <p class="speaker">David Leyonhjelm</p><p>That was exactly what I intended to do, but then I was advised by the Clerk and also by the Leader of the Opposition in the Senate that the Leader of the Government has precedence, so I gave the call to the Leader of the Government.</p> <p class="speaker">George Brandis</p><p>The first of the two amendments standing in my name and in the name of Senator Canavan is an amendment designed to fulfil the government's commitment at the time of the marriage postal survey to ensure that there be strong protections for religious freedom in any private senator's bill that the government facilitated through the parliament. It provides, very simply:</p><p class="italic">Nothing in this Act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching.</p><p>Let me reiterate what I've said many times in the course of public discussion of this issue. In my view, there is absolutely no inconsistency between marriage equality and religious freedom—none whatsoever. By passing the bill introduced by Senator Smith, as I feel sure this Senate will either tonight or tomorrow, we are making no inroads on religious freedom whatever. I have deliberately refrained from participating in the debate on or, indeed, from voting on the various amendments moved by Senator Fawcett and Senator Paterson not because in my view many of them are not valuable amendments—not all of them but many of them I agree with—but rather because, as I have always said during the course of this debate, the issue before the Australian people during the marriage law postal survey and, therefore, the issue before this parliament today is a very simple proposition: should the law be changed to allow same-sex couples to marry?</p><p>The Australian people, as we know, overwhelmingly affirmed that the answer to that question was 'yes' and this chamber, I believe, and the other place, I expect, will be obedient to their wishes and overwhelmingly affirm that the law should be changed to allow same-sex couples to marry. I was of the view, and it remains my position, that that very simple proposition should not be complicated by a broader debate on the appropriate reach of antidiscrimination law. That is a matter for another day.</p><p>The Prime Minister has already announced that there will be a review headed by the much respected former Attorney-General, the Hon. Philip Ruddock, to examine the extent and adequacy of religious protections in Australian law. It may be that the Ruddock review identifies that there are inadequacies in religious protection in Australian law, and, if it does, then next year the parliament will deal with them. But, with all due respect to my friends and colleagues Senator Fawcett and Senator Paterson and to those of my colleagues from the government benches who supported their amendments, I think next year, following the Ruddock review, is the time to deal with those issues and today—in the Senate this week and in the House of Representatives next week—is the time to deal with the very straightforward question: should the law be changed to allow same-sex couples to marry?</p><p>That having been said, I also believe that, during the debate over the same-sex marriage survey, there were a number of very misleading statements made from the 'no' case that the effect of enacting marriage equality would be to impinge upon and to entrench upon religious freedom. In my view, those statements were wrong. As I said at the start of this contribution, in my view there is no inconsistency, whatsoever, between marriage equality and religious freedom. That is so for a very simple reason: what we are dealing with today, what Senator Smith's bill is dealing with, is the secular definition of marriage—the definition of marriage contained in the Marriage Act.</p><p>It has always been the case that we have recognised that there is a secular definition of marriage but also recognised that different churches and different religious faiths may have their own definition of marriage, which is narrower, and that those two propositions stand completely consistent together. Let me give you an example in the case of the church of which I am a member, the Catholic Church. The Catholic Church has always taught that divorce is not recognised by Catholic doctrine, so the Catholic Church teaches that in its schools and the Catholic Church will not conduct the ceremony of marriage according to its rites of liturgy for a couple of whom one or other is divorced. That is inconsistent with the secular definition of marriage in the Marriage Act, because it is narrower, but nobody has ever suggested that there is any inhibition on the Catholic Church teaching, according to its doctrines and tenets and teaching, its own understanding of the meaning of marriage according to canon law. Nobody has suggested that. Equally, when Senator Smith's bill is made law, nobody could possibly suggest that there would be any inhibition on the Catholic Church, any other Christian church or any other religious faith's teaching that, according to its doctrines, tenets and theological convictions, a marriage is between a man and a woman. That is entirely a matter for the church. That reflects the church's definition and the church's understanding of marriage. That is not what we are here concerned with. What we are here concerned with is the secular definition of marriage. So there isn't, as I say, any inconsistency, whatsoever.</p><p>You may think that the amendment that I move is strictly unnecessary. But I am concerned that there are many people—I know people who have engaged with me in this discussion—who have been misled by some of the wilder and more extravagant claims made by advocates of the 'no' point of view that by enacting Senator Smith's bill, in some way, there will be an imposition on religious freedom. So I move this amendment to put it absolutely beyond doubt that the effect of this bill will be to make no imposition, no limitation, no inhibition upon religious freedom.</p><p>The words I have adopted to describe the right which is protected are words taken straight from article 18.1 of the International Covenant on Civil and Political Rights, which protects the right of a person to manifest his or her religion or belief in worship, observance, practice and teaching. The amendment does not transport into Australian law or enact article 18.1. I am, as colleagues will know, not a supporter of a bill of rights, and this is not the germ of a bill of rights. What it does is adopt some well-understood language of description from an international human rights instrument to describe those aspects of religious freedom that ought to be protected. And, by the qualifying words 'in a lawful manner', the amendment puts it beyond doubt that it doesn't derogate from any other Australian law, because that which is protected is the exercise of a right of worship, observance, practice and teaching only if it is consistent with Australian law, federal and state—only if it takes place in a lawful manner.</p><p>So to those who say that we are opening the door to, for instance, Sharia law: if there are any aspects of Sharia law that are not lawful according to Australian law then this provision would ensure that they remain unlawful according to Australian law. Nor does this amendment in any way derogate from federal or state antidiscrimination laws. I want to emphasise that point, because I've heard dishonest claims made during the course of the day that in some way this amendment might have that effect. But because of the qualifying words 'in a lawful manner', it cannot. The words are words of reassurance. To those who may have been caused to have misgivings during the course of the debate, that in some way Senator Smith's bill derogates from religious freedom or somehow limits it: it does not. And if anyone has any doubt about that, the inclusion in the bill of these words will serve to remove that doubt entirely.</p><p>Now, I doubt that there would be anybody in this chamber quite so dishonest as to suggest that the inclusion of this amendment was meant to in some way limit or derogate from the effect of Senator Smith's bill. Plainly it does not—unless you accept that religious freedom cannot sit side by side with acceptance of marriage equality. They can sit side by side; they do sit side by side. They are entirely consistent with one another, and this amendment puts that proposition completely beyond doubt.</p> <p class="speaker">James Paterson</p><p>I'm going to speak very briefly in support of the amendments that Senator Brandis and Senator Canavan are bringing. I think Senator Brandis has put it very well, and there's not much that needs to be added to what he said. This is in a sense just a symbolic act to reassure anyone who may be concerned that there will be any adverse impacts on religious liberty from this bill that they need not worry, that there is no adverse impact. As Senator Brandis put it, this amendment is to put beyond doubt that there are no negative impacts. I hope it will pass. I urge to senators to support it. I have to say, given the way Senator Brandis has described it and how modest it is, it would be a troubling thing if this did not pass, given how uncontroversial it is and how modest it is in its scope. It might give rise to some concerns if something even this reasonable were voted down, so I certainly hope it is not.</p> <p class="speaker">Penny Wong</p><p>Senator Brandis has moved amendment (1) on sheet 8333, which, as we on this side of the chamber understand it, appears to reflect one aspect of the ICCPR into Australian law. We think it is an unusual and novel proposal. We believe it has uncertain legal effect, some have asserted to us potentially far-reaching. On the one hand, Senator Brandis and others have suggested this is of minor or cosmetic or inconsequential effect. One wonders then on what basis there is a reason to put it into legislation.</p> <p class="speaker">James Paterson</p><p>Or oppose it!</p> <p class="speaker">Penny Wong</p><p>I intend to oppose it. We intend to oppose it. I'm just explaining why, Senator Paterson. As has been pointed out by a number of legal advisers, and also referenced in some of the documentation provided by the Human Rights Law Centre, there are some questions about the extent to which there may be unintended adverse consequences in relation to this amendment. I would also make the point that we find it somewhat odd that one would cherrypick the ICCPR in this way. For example, article 18.1 is singled out but not article 18.3, which states:</p><p class="italic">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.</p><p>Obviously, 18.3 constrains to some extent the rights articulated in 18.1 and reflected in the amendment that Senator Brandis has spoken to. I also note that article 26 of the ICCPR commences as follows:</p><p class="italic">All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.</p><p>I pick up those two aspects of the covenant because it seems to us on this side that there's obviously, certainly in this chamber and to some extent in the community, an interest in discussing the place of religious belief and the way in which the law might safeguard better the right to have such a belief—the right to hold beliefs—and a discussion about the extent to which that belief might affect the application of Australian law. However, as I have said on a number of occasions today, that is a reasonably complex and at times controversial discussion, and it is certainly a discussion that goes quite directly to the way in which religion is dealt with in a secular state and to the extent to which absolute belief, and limited protection under the law for that, need to be balanced.</p><p>The Labor Party's view reflects to some extent Senator Brandis's introduction to this amendment, which is that this is a matter that rightly should go through the process that Prime Minister Turnbull has established. We believe that an amendment of this sort would better be considered in the context of that process. For that reason we will be opposing this.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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