George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The first bracket of amendments should not detain the chamber for long, I hope. These are what I referred to a moment ago in my speech in the second reading debate as the technical amendments. I should say that these amendments have been prepared within the Attorney-General's Department. Their effect is basically to ensure that the provisions of this bill align with other Commonwealth law. The effect of them, if I may summarise them, is: to ensure the recognition of foreign same-sex marriages solemnised in Australia by a foreign consular or diplomatic officer prior to the commencement of the bill; to repeal section 40(5) of the Sex Discrimination Act; to make consequential amendments to a range of Commonwealth legislation necessary to implement same-sex marriage reform, such as removing gendered language; to provide transitional arrangements for family law matters, including matters currently before the courts, maintenance matters and binding financial agreements, including matters on foot in the state jurisdiction of Western Australia; to provide a transitional arrangement to enable same-sex couples to participate in a second marriage ceremony if there is doubt as to the validity of a foreign same-sex marriage solemnised prior to commencement; to provide provisions for the Attorney to make disallowable legislative instruments to determine other transitional arrangements if they are necessary to implement these reforms; and to make technical and consequential amendments to the following acts—the Acts Interpretation Act, the Australian Defence Force Cover Act, the Defence Force Discipline Appeals Act, the Defence Force Retirement and Death Benefits Act, the Defence (Visiting Forces) Act, the Evidence Act, the Family Law Act, the Federal Circuit Court of Australia Act, the Financial Transaction Reports Act, the Governor-General Act, the Judges' Pensions Act, the Maintenance Orders (Commonwealth Officers) Act, the Marriage Act, the Migration Act, the Military Rehabilitation and Compensation Act, the Parliamentary Contributory Superannuation Act, the Safety, Rehabilitation and Compensation Act, the Safety, Rehabilitation and Compensation (Defence-related Claims) Act, the Seafarers Rehabilitation and Compensation Act and the Superannuation Act.

The CHAIR: Senator Brandis, are you seeking to move all eight together?

Yes. I'm sorry, I should have said that. I seek leave to move all of the amendments on sheet 8334 revised together.

Leave granted.

I move:

(1) Clause 2, page 2 (at the end of the table), add:

6. Schedule 2 The day after the end of the period of 12

months starting on the day the provisions covered by table item 2 commence.

7. Schedules 3 At the same time as the provisions covered

and 4 by table item 2.

[ official record of person ' s sex; consequent ial amendments; application and transitional provisions]

(2) Schedule 1, item 71, page 20 (line 24), omit "an overseas country", substitute "a foreign country".

[pre-commencement diplomatic or consular marriages]

(3) Schedule 1, item 71, page 20 (line 32), omit "the overseas country". substitute the foreign country".

[pre-commencement diplomatic or consular marriages]

(4) Schedule 1, item 71, page 21 (line 1), omit "the overseas country", substitute "the foreign country".

[ pre-commencement diplomatic or consular marriages]

(5) Schedule 1, item 71, page 21 (lines 9 and 10), omit the definition of overseas country.

[ pre-commencement diplomatic or consular marriages]

(6) Page 21 (after line 12), at the end of the Bill, add:

Schedule 2—Additional amendment of the Sex Discrimination Act 1984

Sex Discrimination Act 1984

1 Subsection 4(1) (definition of official record of a person ' s sex) Repeal the definition.

2 Subsection 40(5)

Repeal the subsection.

[official record of person's sex]

(7) Page 21, at the end of the Bill (after proposed Schedule 2), add:

Schedule 3—Consequential amendments Part 1—Attorney-General Acts Interpretation Act 1901

1 Section 2B

Insert:

spouse: see section 2CA.

2 After section 2C Insert:

2CA References to spouses

(1) For the purposes of any Act, a person is the spouse of another person (whether of the same sex or a different sex) if the person is legally married to the other person.

(2) Subsection (1) has effect in addition to any provision of an Act that affects the meaning of spouse in a provision of that Act.

Example: Spouse is defined for the purposes of an Act to include a de facto partner and a former spouse. Because of this section, a reference in the Act to a person's spouse covers any person who is legally married to the person, in addition to any person covered by the definition in the Act.

3 Application of definition of spouse

The amendments of the Acts Interpretation Act 1901 made by this Part apply, on and after the commencement of this Part, in relation to Acts enacted and instruments made before, on or after that commencement.

Defence Force Discipline Appeals Act 1955

4 Paragraph 31(1 ) ( c)

Omit "husband or wife" (wherever occurring), substitute "husband, wife or spouse".

5 Application of amendment—evidence of spouses in proceedings

The amendment of the Defence Force Discipline Appeals Act 1955 made by this Part applies in relation to proceedings before the Tribunal on or after the commencement of this Part, whether instituted before or after that commencement.

Defence (Visiting Forces) Act 1963

6 Subsection 5(1) (paragraph (a) of the definition of dependant) Omit "wife or husband", substitute "wife, husband or spouse".

Evidence Act 1995

7 Paragraph 73(1 ) ( b)

Omit "a man and a woman", substitute "2 people-.

8 Application of amendment—evidence concerning relationships

The amendment of the Evidence Act 1995 made by this Part applies in relation to evidence adduced in proceedings on or after the commencement of this Part, whether the proceedings are instituted before or after that commencement.

Family Law Act 1975

9 Subsection 4(1) (definition of child of a marriage) Repeal the definition, substitute:

child of a marriage has a meaning affected by subsections 60F(1), (2), (3) and (4).

10 Paragraph 43(1 ) ( a)

Omit "a man and a woman", substitute "2 people".

11 Subsection 55A(3)

Omit the husband or the wife", substitute "party to the marriage".

12 Subsection 55A(3)

Omit the husband and wife", substitute "both parties to the marriage".

13 Subsection 55A(4)

Omit "husband and wife", substitute "parties to the marriage".

14 Section 60E

Omit all the words after "void", substitute "as if the purported marriage were a marriage".

15 Subsection 60F(1)

Repeal the subsection, substitute:

(1) For the purposes of this Act, a child is (subject to subsections (2), (3) and (4)) a child of a

marriage if:

(a) the child is the child of both parties to the marriage, whether born before or after the

marriage; or

(b) the child is adopted after the marriage by both parties to the marriage, or by either of them with the consent of the other.

16 Subsection 60F(4A) Repeal the subsection.

17 Subsection 98A(3)

Omit "the husband or the wife", substitute "party to the marriage".

18 Subsection 98A(3)

Omit "the husband and wife", substitute "both parties to the marriage-.

19 Subsection 98A(4)

Omit "husband and wife", substitute "parties to the marriage".

20 Section 100 (heading) Repeal the heading, substitute:

100 Evidence of husbands, wives or spouses

21 Application of amendments

(1)Sections 55A, 60F and 98A of the Family Law Act 1975, as in force on and after the

commencement of this Part, apply in relation to a marriage (within the meaning of the Marriage Act 1961, as amended by this Act), even if:

(a) the marriage took place before that commencement; or

(b) for subsections 60F(3) and (4)—the adoption of the child took place before that commencement.

(2) Section 60E of the Family Law Act 1975, as in force on and after the commencement of this

Part, applies in relation to a purported marriage (within the meaning of the Marriage Act 1961, as amended by this Act), even if the purported marriage took place before that commencement.

Financial Transaction Reports Act 1988

22 Paragraph 21A(1 ) ( b)

Repeal the paragraph, substitute:

(b) if the signatory has changed the surname by which the signatory is known to that of the signatory's spouse or de facto spouse—by which the signatory was known before making that change; or

Maintenance Orders (Commonwealth Officers) Act 1966

23 Section 3 (definition of maintenance order) After "wives,", insert "husbands, spouses,".

Marriage Act 1961

24 Subsection 42(10)

Omit "a widow or widower", substitute "that that party's last spouse has died".

25 Application of amendments

Subsection 42(10) of the Marriage Act 1961, as amended by this Part, applies in relation to a marriage (within the meaning of that Act as amended by this Act) that takes place at or after the commencement of this Part.

Part 2—Defence

Australian Defence Force Cover Act 2015

26 Subsections 7(1) and (2)

Omit "husband or wife" (wherever occurring), substitute "husband, wife, spouse".

Defence Force Retirement and Death Benefits Act 1973

27 Subsections 6A(1) and (2)

Omit "husband or wife" (wherever occurring), substitute "husband, wife, spouse".

Part 3—Employment

Safety, Rehabilitation and Compensation Act 1988

28 Subsection 4(1) (paragraph (b) of the definition of spouse) Omit "husband or wife", substitute "husband, wife or spouse".

Seafarers Rehabilitation and Compensation Act 1992

29 Section 3 (paragraph (b) of the definition of spouse) Omit "husband or wife", substitute "husband, wife or spouse".

Part 4—Finance

Federal Circuit Court of Australia Act 1999

30 Subclause 9E(5) of Schedule 1

Omit "husband or wife" (wherever occurring), substitute "husband, wife, spouse".

Governor-General Act 1974

31 Subsections 2B(2) and (3)

Omit "husband or wife" (wherever occurring), substitute "husband, wife, spouse".

Judges ' Pensions Act 1968

32 Subsections 4AB(1) and (2)

Omit "husband or wife" (wherever occurring), substitute "husband, wife, spouse".

Parliamentary Contributory Superannuation Act 1948

33 Subsections 4B(1) and (2)

Omit "husband or wife" (wherever occurring), substitute "husband. wife, spouse".

Superannuation Act 1976

34 Subsections 8A(1) and (2)

Omit "husband or wife" (wherever occurring), substitute "husband, wife, spouse".

Part 5—Immigration and Border Protection Migration Act 1958

35 Subsection 5F(1)

After "another person", insert "(whether of the same sex or a different sex)".

36 Paragraph 5F(2 ) ( b)

Omit "as husband and wife", substitute "as a married couple".

Part 6—Veterans ' Affairs

Military Rehabilitation and Compensation Act 2004

37 Subsection 5(1) (paragraph (a) of the definition of partner) Omit "husband or wife", substitute "husband, wife or spouse".

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

38 Subsection 4(1) (paragraph (b) of the definition of spouse)

Omit "husband or wife", substitute "husband. wife or spouse".

[consequential amendments]

Page 21, at the end of the Bill (after proposed Schedule 3), add:

Schedule 4—Additional application and transitional provisions

Part 1—Application and transitional provisions relating to family law matters

Division 1—Preliminary

1 Definitions

(1) In this Schedule:

pre-commencement same-sex marriage means a marriage (within the meaning of the Marriage Act 1961, as amended by this Act) that:

(a) was solemnised before the recognition time; and

(b) is recognised in Australia as valid at the recognition time because of Part 5 of Schedule 1 to this Act; and

(c) would not have been so recognised apart from that Part.

recognition time means the commencement of Part 5 of Schedule 1.

(2) A term that is used in this Schedule and defined for the purposes of the Family Law Act 1975

has the same meaning in this Schedule as it has in that Act.

Division 2—Matters under the Family Law Act 1975

2 Proceedings pending under the Family Law Act 1975 in relation to pre-commencement same-sex marriages

(1) This item applies to proceedings that:

(a) were pending under the Family Law Act 1975 immediately before the recognition time; and

(b) related to a de facto relationship that:

  (i) existed before or when the proceedings were instituted; and

  (ii) was between 2 persons who were parties to a single pre-commencement same-sex marriage solemnised before the proceedings were instituted.

(2) The proceedings continue under the Family Law Act 1975 at and after the recognition time:

(a) as if they related to a marriage that had been solemnised when the pre-commencement same-sex marriage was solemnised; and

(b) if the proceedings were a de facto financial cause—as if anything done before the recognition time for the purposes of a provision of Part VIIIAB of that Act (except Division 4 of that Part) had been done for the purposes of the corresponding provision of Part VIII of that Act.

Note 1: Part VIII of that Act is about property, spousal maintenance and maintenance agreements relating to a marriage. Part VIIIAB of that Act is about financial matters relating to de facto relationships. Division 4 of that Part is about financial agreements.

Note 2: Item 5 of this Schedule deals with financial agreements.

3 Cessation of maintenance at recognition time

(1 ) If:

(a) before the recognition time, an order was made under Part VIII of the Family Law Act 1975 with respect to the maintenance of a party to a marriage; and

(b) the party later became party to a pre-commencement same-sex marriage;

subsections 82(4), (6), (7) and (8) of that Act apply in relation to the order as if the party had remarried at the recognition time.

(2) If:

(a) before the recognition time, an order was made under Division 2 of Part VIIIAB of the Family Law Act 1975 with respect to the maintenance of a party (the receiving party) to a de facto relationship; and

(b) the receiving party later became party to a pre-commencement same-sex marriage with someone who was not a party to the de facto relationship;

subsections 90SJ(2), (3), (4) and (5) of that Act apply in relation to the order as if the receiving party had married at the recognition time.

4 Recognition of overseas divorces, annulments and legal separations relating to pre-commencement same-sex marriages

(1) To avoid doubt, subsection 104(3) of the Family Law Act 1975 extends to a divorce,

annulment or legal separation relating to a pre-commencement same-sex marriage, even if:

(a) the relevant date (as defined in section 104 of that Act) was before the recognition time; or

(b) the divorce, annulment or legal separation occurred before the recognition time.

(2) The Family Law Act 1975 applies as if subsection 104(3) of that Act also provided for a

divorce effected in accordance with the law of an overseas jurisdiction to be recognised as valid in Australia if the divorce related to a pre-commencement same-sex marriage and was effected before the recognition time.

(3) For the purposes of the application of subsection 104(4) of the Family Law Act 1975 in

relation to subsection 104(3) of that Act as it applies because of subitem (2), the mere fact that the divorce relates to a pre-commencement same-sex marriage does not mean that recognition of the divorce would manifestly be contrary to public policy.

5 Financial agreements and separation declarations

(1 ) This item applies if

(a) before the recognition time, the parties to a pre-commencement same-sex marriage made a Part VIIIAB financial agreement relating to a contemplated, actual or former de facto relationship between them:

  (i) whether or not they were parties to the pre-commencement same-sex marriage at the time they made the agreement; and

  (ii) whether or not anyone else is a party to the agreement; and

(b) under section 9OUJ of the Family Law Act 1975, the agreement is binding on the

parties to the agreement immediately before the recognition time.

(2) For the purposes of a law of the Commonwealth (including the Family Law Act 1975) at and

after the recognition time, the agreement, with the necessary changes, is taken:

(a) to be a financial agreement made under Part VIIIA of that Act relating to a

contemplated, actual or former marriage between the parties to the pre-commencement same-sex marriage; and

(b) to be binding on the parties to the agreement under section 90G of that Act until the

agreement is terminated or set aside in accordance with that Act.

(3) However, the agreement is taken not to include a provision that deals with a matter that could not validly have been dealt with in a Part VIIIAB financial agreement, even if the matter could validly be dealt with in a financial agreement.

(4) Section 90E of the Family Law Act 1975 does not apply in relation to the agreement at and after the recognition time if the agreement was covered by section 90UE (agreements made in non-referring States that become Part VIIIAB financial agreements) of that Act before that time.

Note: Section 90E and subsection 90UH(1) of that Act set out requirements for provisions in agreements relating to the

maintenance of a party or a child or children. Subsection 90UH(1) does not apply in relation to a Part VIIIAB financial agreement covered by section 90UE.

(5) lf, before the recognition time, a separation declaration was made, as described in

section 90UF of the Family Law Act 1975, for the purposes of giving effect to the agreement (whether the declaration was included in the agreement or not), the declaration is taken on and after that time to be a separation declaration made as described in section 90DA of that Act.

(6) If, before the recognition time, a separation declaration was made as described in

subsection 90MP(8), (9) or (10) of the Family Law Act 1975 in relation to the agreement so far as it is a superannuation agreement for the purposes of Part VIIIB of that Act, the declaration is taken on and after that time to be a separation declaration made as described in

subsection 90MP(3), (4) or (4A) of that Act.

(7) Subitem (6) applies whether the separation declaration was included in the superannuation agreement or not.

Division 3—Matters under the Family Court Act 1997 (WA)

6 Proceedings pending under the Family Court Act 1997 (WA) before the recognition time

Application

(1) This item applies to proceedings in a court (the WA court) that:

(a) were pending under the Family Court Act 1997 (WA) (the WA Act) immediately before the recognition time; and

(b) related to a de facto relationship that:

  (i) existed before or when the proceedings were instituted; and

  (ii) was between 2 persons who were parties to a single pre-commencement same-sex marriage solemnised before the proceedings were instituted.

Continuation of proceedings under the Family Law Act 1975

(2) The proceedings continue under the Family Law Act 1975 (the Commonwealth Act) at and

after the recognition time:

(a) as if they related to a marriage that had been solemnised when the pre-commencement same-sex marriage was solemnised; and

(b) if the proceedings were Part 5A proceedings (within the meaning of the WA Act)— as if anything done before the recognition time for the purposes of a provision of Part 5A of the WA Act (except Division 3 of that Part) had been done for the purposes of the corresponding provision of Part VIII of the Commonwealth Act.

Note 1: Part VIII of the Commonwealth Act is about property, spousal maintenance and maintenance agreements relating to a marriage. Part SA of the WA Act is about financial matters relating to de facto relationships. Division 3 of that Part is about financial agreements.

Note 2: Item 8 of this Schedule deals with financial agreements made under Division 3 of Part 5A of the WA Act.

(3) The WA court is invested with jurisdiction to hear and determine the proceedings as continued

under subitem (2).

(4) Any decision validly made by a court before the recognition time about the admissibility of

particular evidence in the proceedings continues to have effect for the purposes of the proceedings after that time.

(5) In performing duties or exercising powers in relation to the proceedings under the

Commonwealth Act, a court may ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.

Appeal proceedings in Court of Appeal

(6) If the proceedings were an appeal instituted in, or made to, the Court of Appeal under Part 7 of

the WA Act, that Court may, on the application of a party or of its own motion, refer the appeal to a Full Court of the Family Court of Australia.

(7) If an appeal is referred to a Full Court of the Family Court of Australia under subitem (6):

(a) jurisdiction is conferred on the Court to hear and determine the appeal; and

(b) the following provisions of the Commonwealth Act, and the standard Rules of Court made for the purposes of those provisions, apply in relation to the appeal as if it were an appeal referred to in subsection 94(1) of that Act:

  (i) subsection 93A(2);

  (ii) section 94, except subsections 94(1), (IAA), (1A) and (3);

  (iii) section 94AAB;

  (iv) section 96AA; and

(c) the Full Court may proceed by way of a hearing de novo, but may receive as evidence any record of evidence given, including any affidavit filed or exhibit received in the Court of Appeal or the court from which the appeal lay.

(8) However, subsection 94(2) of the Commonwealth Act applying because of subitem (7) does

not permit the Full Court to order a re-hearing by the Court of Appeal.

This item does not apply to proceedings about guardians

(9) Despite subitem (1), this item does not apply to so much of the proceedings as relate to the

appointment or removal under section 71 of the WA Act of a guardian.

7 Cessation of maintenance at recognition time If:

(a) before the recognition time, an order was made under Division 2 of Part 5A of the Family Court Act 1997 (WA) with respect to the maintenance of a party (the receiving party) to a de facto relationship; and

(b) the receiving party later became party to a pre-commencement same-sex marriage with someone who was not a party to the de facto relationship;

section 82 of the Family Law Act 1975 applies in relation to the order as if it were an order with respect to the maintenance of a party to a marriage and the party had remarried at the recognition time.

8 Financial agreements and separation declarations

(1)This item applies if:

(a) before the recognition time, the parties to a pre-commencement same-sex marriage made a financial agreement within the meaning of Part 5A of the Family Court Act 1997 (WA), or a former financial agreement (within the meaning of that Part), relating to a contemplated, actual or former de facto relationship between them:

  (i) whether or not they were parties to the pre-commencement same-sex marriage at the time they made the agreement; and

  (ii) whether or not anyone else is a party to the agreement; and

(b) under section 205ZS of that Act, the agreement is binding on the parties to the agreement immediately before the recognition time.

(2) For the purposes of a law of the Commonwealth (including the Family Law Act 1975) at and

after the recognition time, the agreement, with the necessary changes, is taken:

(a) to be a financial agreement made under Part VIIIA of that Act relating to a contemplated, actual or former marriage between the parties to the pre-commencement same-sex marriage; and

(b) to be binding on the parties to the agreement under section 90G of that Act until the agreement is terminated or set aside in accordance with that Act.

(3) However, the agreement is taken not to include a provision that deals with a matter that could

not validly have been dealt with in a financial agreement within the meaning of Part 5A of the Family Court Act 1997 (WA), even if the matter could validly be dealt with in a financial agreement within the meaning of the Family Law Act 1975.

(4) If the agreement was a former financial agreement (within the meaning of Part 5A of the

Family Court Act 1997 (WA)), then section 90E of the Family Law Act 1975 (requirements for provisions in agreements relating to the maintenance of a party or a child or children) does not apply in relation to the agreement.

(5) Section 90DA (need for separation declaration) of the Family Law Act 1975 does not apply in

relation to the agreement unless the spouse parties separate, and begin living separately and apart, at or after the recognition time.

Part 2—Other transitional provisions

9 Second marriage ceremonies for certain marriages by foreign diplomatic or

consular officers that occurred in Australia before commencement

(1) This item applies to a marriage (within the meaning of the Marriage Act 1961, as amended by

this Act) that was solemnised:

(a) in Australia, before the commencement of this item; and

(b) by or in the presence of a diplomatic or consular officer of a foreign country (whether or not the country was a proclaimed overseas country at the time the marriage was solemnised).

(2) Subsections 113(2) and (5) of the Marriage Act 1961, as in force on and after the

commencement of this item, apply in relation to the marriage as if it took place outside Australia.

Part 3—Transitional rules

10 Transitional rules

(1) The Attorney-General may, by legislative instrument, make rules (transitional rules)

prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Act.

(2) To avoid doubt, the transitional rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

  (i) arrest or detention; or

  (ii) entry, search or seizure;

(c) impose a tax;

(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

(e) directly amend the text of an Act.

(3) Subsection 12(2) (retrospective appl

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

There is no objection from me, but I think it's very instructive that all these amendments were deemed necessary and consequential upon any potential change to the definition of marriage, matters which the Australian people were told would not be necessary; that it was just a very simple change to a few words in the act. Now, here we have eight separate lots of amendments to other pieces of legislation, confirming that which the 'no' case said was absolutely true—namely, that there are many consequential amendments. Having said that, I don't stand in the way of them because if we do go down this track as a parliament, then it makes good sense to have these amendments. So the purpose of my contribution is to simply say that those that campaigned so heavily, asserting that there are no consequential amendments required, that it is all very simple and it is just changing a few words have now been exposed. The changes are going to be far-reaching. Having said that, I do not stand in the way.

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

Just to indicate, Chair, Labor will be supporting these technical amendments as set out in 8334. The amendments ensure that the bill as proposed meshes appropriately and properly with existing Commonwealth legislation. They're essentially modifications to the drafting of the bill, designed to ensure it will best achieve the purpose, consistent with the bill and the Senate committee report. We've considered the amendments. We thank the Attorney-General for providing them to us. We consider that these amendments make appropriate drafting changes and we'll be supporting all of the amendments on 8334.

The CHAIR: Just to confirm, Senator Wong, you are saying that you're agreeing to those amendments on sheet 8334 revised?

Correct.

The CHAIR: Thank you.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens will also be supporting these amendments. They're obviously a suite of amendments that are necessary to fit in with our existing laws. We would like to thank the Attorney-General's Department for the work put in to make sure that this law is going to proceed and operate as smoothly as possible.

Question agreed to.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (19), (21) to (23), (25), (27) to (38) and (40) to (44) on sheet 8326 together that stand in my name and the name of Senator Paterson:

(1) Clause 1, page 1 (lines 6 and 7), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment (Definition and Protection of Freedoms) Act 2017".

[short title]

(2) Schedule 1, item 1, page 4 (lines 8 to 10), omit paragraph 2A(a), substitute:

(a) to allow civil celebrants (including traditional marriage celebrants) to solemnise marriage, understood as:

  (i) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or

  (ii) the union of 2 people to the exclusion of all others, voluntarily entered into for life; and

[consequential—definition of marriage]

(3) Schedule 1, item 1, page 4 (line 11), after "religion", insert "or traditional marriage celebrants".

[consequential—traditional marriage celebrants]

(4) Schedule 1, item 1, page 4 (line 13), after "own religious", insert "or conscientious".

[conscientious beliefs]

(5) Schedule 1, item 1, page 4 (line 15), after "religious", insert "and conscientious".

[conscientious freedom]

(6) Schedule 1, item 2, page 4 (line 27), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrant]

(7) Schedule 1, item 3, page 5 (lines 5 and 6), omit the item, substitute:

3 Subsection 5(1) (definition of marriage )

Repeal the definition, substitute:

marriage means:

(a) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or

(b) the union of 2 people to the exclusion of all others, voluntarily entered into for life.

[definition of marriage]

(8) Schedule 1, item 5, page 5 (lines 13 to 17), omit the item, substitute:

5 Subsection 5(1)

Insert:

traditional marriage celebrant means a person identified as a traditional marriage celebrant on the register of marriage celebrants under Subdivision D of Division 1 of Part IV.

[definition of traditional marriage celebrant]

(9) Schedule 1, page 5 (after line 17), after item 5, insert:

5A After section 5

Insert:

5AD Determining when a belief is held etc.

(1) For the purposes of this Act, a person holds a genuine religious or conscientious belief, or genuinely believes, if the holding of the belief (inclusive of the person's or entities beliefs as to the actions, refusals, omissions or expressions that are consistent with that belief)is not fictitious, capricious or an artifice.

(3) For the purposes of this Act, if an authorised celebrant holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, then in holding, expressing or acting on that belief:

(a) whether or not another person who is to be married is a man or a woman is to be determined by the authorised celebrant; and

(b) in determining whether the other person is a man or a woman, if the authorised celebrant reasonably believes and genuinely believes that the current legal status of the other person as a man or a woman is different from the legal status of the other person as a man or a woman at the time of the other person's registration following the other person's birth, the authorised celebrant may disregard the current legal status of the other person's sex or gender, or their gender identity or intersex status.

[determining when a belief is held]

(10) Schedule 1, item 8, page 5 (line 24), omit "Religious", substitute "Traditional".

[consequential—traditional marriage celebrants]

(11) Schedule 1, item 8, page 5 (line 25), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrants]

(12) Schedule 1, item 8, page 5 (line 27), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrants]

(13) Schedule 1, item 8, page 6 (line 1), omit paragraph (b), substitute:

(b) either:

  (i) the person is a minister of religion; or

  (ii) the person holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

[entitlement to be identified as traditional marriage celebrant]

(14) Schedule 1, item 8, page 6 (line 2), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrants]

(15) Schedule 1, item 8, page 6 (line 6), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrants]

(16) Schedule 1, item 8, page 6 (line 9), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrants]

(17) Schedule 1, item 8, page 6 (line 11), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrants]

(18) Schedule 1, item 8, page 6 (line 15), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrants]

(19) Schedule 1, item 8, page 6 (line 16), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrants]

(21) Schedule 1, item 8, page 7 (line 18), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrants]

(22) Schedule 1, item 8, page 7 (line 20), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrants]

(23) Schedule 1, item 8, page 7 (line 23), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrants]

(25) Schedule 1, item 8, page 7 (after line 33), after section 39DE, insert:

39DF Request for identification as a traditional marriage celebrant to be removed

(1) A traditional marriage celebrant may, in writing, give the Registrar of Marriage Celebrants notice that the celebrant no longer wishes to be identified as a traditional marriage celebrant on the register of marriage celebrants.

(2) If a traditional marriage celebrant gives the Registrar of Marriage Celebrants notice in accordance with subsection (1), the Registrar must remove the identification of the celebrant as a traditional marriage celebrant from the register.

[removing identification as traditional marriage celebrant]

(27) Schedule 1, item 17, page 10 (line 3), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrants]

(28) Schedule 1, item 17, page 10 (line 5), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrants]

(29) Schedule 1, page 10 (after line 6), after item 17, insert:

17B Before subsection 45(1)

Insert:

Ministers of religion

17C Before subsection 45(2)

Insert:

Traditional marriage celebrants

[consequential—form of ceremony]

(30) Schedule 1, item 18, page 10 (lines 7 and 8), omit the item, substitute:

18 Subsection 45(2)

Omit "not being a minister of religion", insert "being a traditional marriage celebrant (other than a minister of religion)".

18A After subsection 45(2)

Insert:

Other authorised celebrants

(2A) Where a marriage is solemnised by or in the presence of an authorised celebrant, not being a minister of religion or a traditional marriage celebrant, it is sufficient if each of the parties says to the other, in the presence of the authorised celebrant and the witnesses, the words:

"I call upon the persons here present to witness that I, A.B. (or C.D.), take thee, C.D. (or A.B.), to be my lawful wedded wife (or husband or spouse)";

or words to that effect.

Certificates of marriage

[traditional marriage celebrants / form of ceremony]

(31) Schedule 1, item 19, page 10 (lines 9 and 10), omit the item, substitute:

19 Before subsection 46(1)

Insert:

Traditional marriage celebrants

19A Subsection 46(1)

After "denomination", insert "but being a traditional marriage celebrant".

19B After subsection 46(1)

Insert:

Authorised celebrants (other than ministers of religion or traditional marriage celebrants)

(1A) Subject to subsection (2), before a marriage is solemnised by or in the presence of an authorised celebrant, not being a minister of religion of a recognised denomination or a traditional marriage celebrant, the authorised celebrant shall say to the parties, in the presence of the witnesses, the words:

"I am duly authorised by law to solemnise marriages according to law.

"Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.

"Marriage, according to law in Australia, is the union of 2 people to the exclusion of all others, voluntarily entered into for life.";

or words to that effect.

State and Territory officers

19C Subsection 46(2)

After "subsection (1)", insert "or (1A)".

[explaining nature of marriage relationship]

(32) Schedule 1, item 20, page 10 (line 26), after "religious", insert "or conscientious".

[minister of religion may refuse to solemnise marriages]

(33) Schedule 1, item 20, page 10 (line 28) to page 11 (line 7), omit subsection 47(3), substitute:

(3) To avoid doubt, a minister of religion may refuse to solemnise a marriage, despite anything in this Part or any law of a State or Territory,if any of the following applies:

(a) the refusal is consistent with the doctrines, tenets or beliefs of the religion of the minister's religious body or religious organisation;

(b) the refusal is made because of the religious susceptibilities of adherents of that religion;

(c) the minister's genuine religious or conscientious beliefs do not allow the minister to solemnise the marriage.

[minister of religion may refuse to solemnise marriages]

(34) Schedule 1, item 20, page 11 (line 9), omit "This section does not", substitute "Subsections (2) and (3) do not".

[minister of religion may refuse to solemnise marriages]

(35) Schedule 1, item 21, page 11 (line 13), omit "Religious", substitute "Traditional".

[consequential—traditional marriage celebrants]

(36) Schedule 1, item 21, page 11 (lines 15 to 17), omit subsection 47A(1), substitute:

(1) This section applies to a traditional marriage celebrant who is not a minister of religion.

Note: For the refusal by a minister of religion to solemnise a marriage, see section 47.

(1A)Despite anything in this Part or any law of a State or Territory, the celebrant may refuse to solemnise a marriage that is not the union of a man and a woman if:

(a) the celebrant holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; and

(b) the holding by the celebrant of that belief does not allow the celebrant to solemnise the marriage.

[traditional marriage celebrants may refuse to solemnise marriages]

(37) Schedule 1, item 21, page 11 (line 19), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrants]

(38) Schedule 1, item 21, page 11 (after line 30), after subsection 47B(1), insert:

Note: Examples include:

(a) provision of services by relationship counsellors;

(b) hire of reception halls;

(c) catering for receptions.

[facilities, goods or services]

(40) Schedule 1, item 63, page 17 (line 11), omit "religious", substitute "traditional".

[Sex Discrimination Act 1984]

(41) Schedule 1, item 63, page 17 (line 15), omit "religious", substitute "traditional".

[Sex Discrimination Act 1984]

(42) Schedule 1, item 63, page 17 (line 18), omit "(1)", substitute "(1A)".

[Sex Discrimination Act 1984]

(43) Schedule 1, item 64, page 18 (line 10), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrants]

(44) Schedule 1, item 66, page 19 (line 7), omit "religious", substitute "traditional".

[consequential—traditional marriage celebrants]

We also oppose schedule 1 in the following terms:

(20) Schedule 1, item 8, page 6 (line 18) to page 7 (line 17), section 39DD to be opposed.

[transitional provisions for existing marriage celebrants]

(24) Schedule 1, item 8, page 7 (lines 26 to 33), subsection 39DE(3) to be opposed.

[not identifying person on register as traditional marriage celebrant]

(26) Schedule 1, items 9 to 16, page 8 (line 3) to page 9 (line 34), to be opposed.

[general provisions relating to marriage celebrants]

(39) Schedule 1, item 57, page 15 (lines 23 and 24), to be opposed.

[recognition of foreign marriages]

These amendments go to a couple of issues, one particularly to do with religious and conscientious protection for celebrants that was raised during the Senate select committee. The human rights law is a right that extends to every individual, not just to members of the clergy and not just to religious organisations.

There was some discussion during the Senate select committee around how to deal with civil celebrants. I think it's important to realise that civil celebrants include a range of people, some who run it essentially as their own small business and some who are ministers of religious bodies or churches that are not recognised denominations by the Attorney-General's Department. There's a specific category under the Marriage Act that recognises ministers of a religious body. The way that that has been accommodated for ministers of a small congregation governed denomination has been for them to essentially act as a civil celebrant. In order to extend the same rights of conscientious and religious belief to them that are enjoyed by ministers of religion, the Senate select committee report came up with the recommendation—which has been adopted by Senator Smith—to create a new category of civil celebrant, and people could request to move into that category so that they could exercise the same rights as a minister of religion. In that part, we agree with what Senator Smith has put forward.

This is where we don't agree. Under the International Covenant on Civil and Political Rights, article 18, freedom of religious and conscientious belief applies to every individual. A celebrant who is not a minister of one of these small, congregationally governed religious groups can still have their own individual religious or conscientious objection to being intimately involved in the solemnisation of a wedding that they don't agree with. The solution that Senator Smith came up with was essentially to put in a grandfathering provision in for people who are currently civil celebrants who have an objection—for them to be grandfathered until they exit the industry—but to have no new people coming into that category. But, if we are to recognise that those people have that right, then there's no reason why any individual shouldn't be able to start and continue as a civil celebrant having that same right to exercise their religious or conscientious freedom, given that there are a range of providers where people could access the service. This amendment seeks to recognise that the right which has been acknowledged in a transitionary manner under the Smith bill should in fact be an ongoing right, because that is what aligns with the International Covenant on Civil and Political Rights.

I know that a number of people have talked around the fact that they shouldn't be allowed to make that discernment. But I come back to the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights. It says there:

… a limitation referred to in the Covenant shall not be interpreted so as to jeopardize the essence of the right concerned.

It also says:

All limitation clauses shall be interpreted strictly and in favor of the rights at issue.

Under the ICCPR, to which Australia is a signatory, where two rights come into conflict—and here it's the right to not be discriminated against versus the right of somebody to have freedom of religious or conscientious belief—the UN has said that one right shall not completely crush the other and that, where one is to be limited, it will have, if you like, the benefit of the doubt. The ICCPR also says—and this is one area where Senator Smith's statement of compatibility with human rights is technically incorrect—that any limitations must be necessary in order to achieve the outcome. Senator Smith's statement of compatibility says that any limitation must be reasonable. There are many things that could be reasonable but are not necessary in order to achieve the outcome. This issue for civil celebrants falls into that category. Not only for people who are ministers of a small, congregationally governed religious group but for people who, as individuals, enjoy the same protections of article 18 as any other person in Australia, we, as a signatory to the ICCPR, need to make sure that we only limit their access to their right to religious liberty or conscientious freedom when it is absolutely necessary. Clearly in this case, as indicated in Senator Smith's bill—because he's already introduced a transitionary provision—it is not necessary for that right to be limited. We're arguing for that right to be one that is ongoing, rather than a transitionary one.

In a similar manner, we're looking at the issue of the very definition of 'marriage'. The postal survey that went out asked Australians the question: should the law be changed to allow same-sex couples to marry? Some 61.4 per cent of people came back and said yes. Going back to the Siracusa principles—where, in balancing the rights, we shouldn't completely extinguish one right for the other and we should only limit where necessary—the question has to be asked: is it necessary to abolish the definition of 'marriage' that is held by nearly 40 per cent of the Australian people, where marriage is between a man and a woman, in order to achieve the ability for same-sex couples and others to marry? The answer is clearly no.

The change that we have proposed extends the definition. It says:

marriage means:

(a) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or

(b) the union of 2 people to the exclusion of all others, voluntarily entered into for life.

What that means is that we are providing a balance so that 40 per cent of Australians who hold to the traditional view of marriage are not unnecessarily disenfranchised, but in no way does it prevent people who are same-sex-attracted who wish to access marriage being able to do that. It is an amendment that is intended to be a unifying amendment, meaning that we actually provide Australians, whichever way they voted—the 60 per cent and the 40 per cent—with a place in our law, so that they recognise that their views are respected and legal in Australian law.

The CHAIR: Just before we hear from other senators, I advise that Senator Fawcett has, by leave, moved all of the amendments on sheet 8326 together but we will deal with them differently. For amendments (1) to (19), (21) to (23), (25), (27) to (38) and (40) to (44) the call will be that the amendments be agreed to, and for the rest of the amendments the question will be that schedule 1 stand as printed.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I rise briefly to speak in favour of the amendment that Senator Fawcett and I moved. I don't want to recap everything Senator Fawcett said, because he outlined the clear intent of this amendment and the issues at stake, but I just want to briefly put on the record my reasons for moving and supporting this amendment and my reasons for encouraging other senators to do so.

Firstly, on the issue of celebrants—senators will be aware that this is one of a number of amendments to broaden protections for civil celebrants in solemnising a same-sex wedding. I think this reflects widespread concern about the adequacy of protections in the bill we have before us about the role of celebrants in weddings. Senator Brandis and Senator Leyonhjelm are going to move other amendments to put in place more robust protections for civil celebrants. Each of them do so in a slightly different way, but all of them have the same objective, which is to extend the freedom granted to ministers of religion and celebrants who are religious to other celebrants who have a traditional and sincerely held belief in marriage and who may do so for religious or personal reasons, or for any other reason.

I think it's very important that we do that because, although religious freedom and religious belief is very worthy of protection—and no-one will doubt my views on that—I also believe that the conscientious views of others are equally worthy of protection. I bring to this issue my personal perspective, as someone who does not have religious faith. I am agnostic. I don't think that the values I form or hold are any less worthy of protection than the values that anyone forms or holds on the basis of their religious beliefs. Civil celebrants who have a sincere and genuinely held belief in the traditional definition of 'marriage' but who do so for secular or cultural reasons deserve no less protection than any other celebrant, and it would be equally wrong to force them, as everyone recognises it would be wrong to force a religious celebrant, to participate in a same-sex wedding. That's what this amendment seeks to do with respect to celebrants.

On the question of definitions of 'marriage'—I'm also strongly in support of this amendment. The first and most important question to ask is: what harm would occur from having two definitions of 'marriage', with equal standing, alongside each other in the Marriage Act?

My view is there is no harm caused by doing that. There is benefit, though, in doing so. As Senator Fawcett said, the question in the same-sex marriage survey was: should we change the law to allow same-sex couples to marry? This change will ensure that that takes place. The question in the survey was not: should we abolish the current definition of 'marriage' and replace it with a new one? Had that been the question, there may well have been a different answer. What I believe most Australians were voting for when they voted yes, like I did, was to change the law to remove the restriction on same-sex couples that currently prevents them from being married. This will do that.

It's important for symbolic reasons, as Senator Fawcett outlines. For the 4.9 million Australians who did vote no, it's not necessary for their belief in marriage to be abolished entirely. That's the symbolic reason, but I also believe down the track it may well be important for practical reasons, for legal reasons. When in the future a person is perhaps taken to a tribunal for sharing their belief in traditional marriage, they will take some comfort in and may derive some legal benefit from being able to point out that their view of marriage is also reflected in the law. Their belief in traditional marriage should not be able to be used to deny a gay couple from being married, but nor should it be extinguished entirely. It may also be of use, for example, for a teacher who wants to teach—consistent with their values and their school's values—their belief in the traditional version of marriage. They too will be able to point to the act and say: 'Yes, the act does, as it should, permit same-sex couples to marry. It has not abolished the traditional definition of "marriage" in doing so.' For those reasons, I urge senators to support these amendments.

Mathias Cormann (WA, Liberal Party, Minister for Finance) Share this | Link to this | Hansard source

Firstly, let me indicate that I intend to support these amendments, but before making a brief contribution in support of the amendments, let me say right up front that, as I've indicated publicly before, I will vote to support the passage of this legislation through the third reading, consistent with the very clear and emphatic decision made by the Australian people in the context of the Australian marriage law postal survey. However, as I've also indicated publicly, I do support the need for additional religious protections to ensure that this change can be implemented in the best possible way. Specifically, in relation to these amendments, I do agree with the proposition that marriage celebrants—whether they are marriage celebrants on behalf of a recognised religion or marriage celebrants in any other context—are in a particular position where they should have the freedom, based on their conscience, to make a judgement on whether or not they want to be part of any type of marriage, for that matter, including the marriage that is going to become legal as part of this change. So, in that context, I do support the proposed expansion of the exemptions as they would apply to marriage celebrants.

Secondly, in relation to the alternative proposed way to amend the definition of 'marriage', I do believe that it does keep faith with the decision of the Australian people, which was to change the law to allow same-sex couples to marry. To maintain both the traditional definition of 'marriage' and complement it with a definition that is consistent with the decision of the Australian people, I believe, is an appropriate way forward. On that basis, I support these amendments.

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

I'd like to indicate that I will support these amendments. I don't believe they are as good as the amendments moved by Senator Brandis or, indeed, by me, but their purpose is the same—and perhaps I'll end up voting for all three of them. What these amendments seek to do is extend the freedom to refuse to solemnise a marriage to all civil celebrants in addition to religious celebrants. Senator Dean Smith's bill only proposes to extend this freedom to religious celebrants. I'd like to outline two arguments, which I think ought to appeal to the Labor Party and the Greens, as to why they ought to support these amendments.

I'm really disappointed, actually, that we only have three Labor senators in the chamber. This is disturbing because it suggests they're not engaged as they no longer have a free vote now that we've reached this stage. They get a free vote at the second reading, they get a free vote at the third reading, but, in between, they are bound by their party discipline. It's very disappointing. Nonetheless, there are two good arguments that ought to appeal to left-leaning supporters of legalising same-sex marriage. Now, I'm a supporter of same-sex marriage. I have been since my first speech in this place. But I'm not left-leaning. Nonetheless, my view is religion should not be afforded a privileged place in a secular state. People who are religious have convictions; people who are not religious 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 are left with 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, because there's no religious cover for such a decision. We will, in fact, be hurting the gay community.

I believe these amendments should be supported; the one that seeks to achieve the same purpose, moved by Senator Brandis, ought to be supported; and the best of all is my amendment, which seeks to achieve the same purpose.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

The Greens will be opposing these amendments. I just wanted to begin by outlining what I understand are the key elements of these amendments that are being proposed by senators Fawcett and Paterson. The first is that civil celebrants should, in an ongoing way, be able to discriminate against LGBTI couples and anybody else that they want to discriminate against and not marry on the basis of their conscientious belief. The second is to insert a second definition of 'marriage'. There are some other things which I'll cover after those two, but I want to go to the key issues associated with those.

I will begin with the proposition, put in a lot of these amendments, that civil celebrants should be able to discriminate on the basis of their conscientious belief, or religious belief. This, of course, was an issue that was widely canvassed in our Senate inquiry earlier this year. It was a key issue that many different people gave us their views about. They were views that ranged across the whole spectrum of opinions, as you would expect. What we came down to was really fundamental to the role of marriage in our society today and the fact that marriage is now broader than religious marriage. I think this is a critical thing. A lot of the debate that we're hearing today has marriage very much still framed as being a religious institution. But marriage is now broader than a religious institution. In fact, that's essentially what the vote a fortnight ago—of 62 per cent saying that they wanted to have marriage equality—was reflecting. For so many people in our society, marriage is not a religious institution. It's a cultural institution; it's a social institution. In fact, something like 70 per cent of marriages that are conducted in Australia today are conducted by civil celebrants. Civil celebrants are conducting marriages according to the law of the land. And so when we considered all of these issues in our inquiry earlier this year, what we concluded, after hearing all of that evidence, was:

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).

And so it was pretty clear, hearing all of this, that because marriage is now a broader institution—the marriage ceremonies that civil celebrants are celebrating are civil marriages; they are according to the law of the land—there is no justification to discriminate against anybody who otherwise meets the requirements of the laws of the land to be able to marry. To continue discrimination is just to entrench further discrimination, and, particularly as many of the amendments that are being proposed single out lesbian, gay, bisexual, transgender, intersex and queer people, it's continuing an ongoing discrimination against LGBTIQ people. It's just not justified.

The justification that Senator Fawcett gave is as reflected in the International Covenant on Civil and Political Rights. We often only hear about the first part of that international covenant, which is about the right to freedom of thought, conscience and religion. This was also covered in our Senate inquiry, and the view of the committee was that, yes, there is a case for reforming our antidiscrimination laws to make sure that freedom of religion is protected—that there is freedom from discrimination. But the third part of article 18 of the ICCPR says:

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.

This makes it very clear that, if you're talking about how you manifest your religion, it's got to be how it's weighed up against the fundamental rights and freedoms of others. That's something that needs to be determined through our antidiscrimination law. It's not something that should be determined in this marriage law. To include it in this marriage law would be to impose upon the fundamental rights and freedoms of others. It would entrench discrimination against LGBTIQ people.

There is a different case, of course, when it comes to religious marriage, and I think it's important to point out at the very beginning of this debate that nobody in this whole chamber is proposing that religious organisations or religious ministers have anything imposed upon them in terms of their ability to solemnise marriages according to their religion. In every church, mosque, temple and synagogue, they will be able to continue to marry whoever they choose to marry; they will be able to refuse to marry whoever they choose to refuse to marry. The rights of ministers of religion are going to continue on in that way. That's religious marriage. We are talking here, with civil celebrants, about civil marriage. It's a very different point.

The second key area that these amendments are looking at is introducing a second definition of 'marriage'. You really have to wonder whether this is satire. Here we are, having just gone through this process over the last two months to remove discrimination and campaign for equality, and this would absolutely strike at the heart of that. It would be saying, 'You've got two types of marriages.' Some people were suggesting, 'Why can't we just have a different name for it? Why can't we call it "garriage" or something like that?' That's effectively what this amendment would be doing. It would be saying: there is proper, ordinary, sensible, normal marriage and there is this other marriage. That is discrimination. That is dividing the community. That is saying that heterosexual men and women who get married are normal, but the others—if you're a lesbian, a gay person, a bisexual, a transgender or an intersex person, you are separate, you are different, and your marriage does not have the same status and standing as other marriage. It would be introducing massive discrimination into our law if that happened.

The third area, which I actually wanted to ask a question about to either Senator Fawcett or Senator Paterson, was regarding section 5AD, which you are proposing to introduce into the act. It says:

… if the authorised celebrant reasonably believes and genuinely believes that the current legal status of the other person as a man or a woman is different from the legal status of the other person as a man or a woman at the time of the other person's registration following the other person's birth, the authorised celebrant may disregard the current legal status of the other person's sex or gender, or their gender identity or intersex status.

I would like to get a response: just how do you propose that that occur? How do you feel that may impact upon the potential of marriages between people who are either transgender, gender diverse or intersex?

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

Senator Rice will recall that during the Senate select committee hearings that very issue was raised by a number of witnesses questioning where ministers of religion stood in terms of their ability to exercise discretion as to who they would or wouldn't marry. That was in that broad context of the fact that, for example, ministers in the Catholic Church won't marry people who've been divorced previously, and there's a whole range of reasons why they may or may not marry somebody. Questions were asked of what the outcome of that would be. The answer was broadly given that they would have the discretion to choose not to marry people, for any particular reason. If, in principle, we're recognising that a celebrant has the same universal human right as a member of the clergy—noting that human rights don't stop at the pulpit; they extend to the congregation and out the front door of a church, synagogue or mosque to the broader population—and if we're extending the same right to a celebrant that we are affording to a minister of religion with respect to marriages, then they should have that same right of discretion on that issue.

I will go to a couple of the other points Senator Rice raised. She talked about the role of antidiscrimination law. She's absolutely right that antidiscrimination law across the nation is what people turn to when these issues come up. But it's important to recognise that the United Nations, through their sixth periodic review of Australia, said, 'You guys should be implementing article 18,' because at the moment there is no balance in our law. This means that when somebody takes a complaint under antidiscrimination law—with the exception of the ACT and, to a certain extent, Victoria—there is limited protection in order for the judiciary to balance those two rights. In fact, in South Australia and New South Wales there is absolutely no protection whereby you can achieve the balance that Senator Rice correctly talked about. That's why we have sought to provide, in an operational sense, that introduction of article 18 into this bill, because, if we kick the can down the road and hope that somebody will be able to align all of the antidiscrimination laws around the country, we only have to look back to what Nicola Roxon, as the then Attorney-General, attempted to do to get an alignment of antidiscrimination laws around the country. The process was very long, convoluted and, in the end, bogged down to the point where it was shelved by her and then Attorney-General Mark Dreyfus because it was so complex. Part of the reason that this bill seeks to bring those protections into the very limited context of marriage is to avoid what was the dead-end process that we saw the last time we tried to nationally align antidiscrimination laws.

Senator Rice also talked about the fact that there would be a collision, if you like, of fundamental rights. You are correct, Senator Rice: there will be. The United Nations envisaged that through the development of the Siracusa principles, where they lay out a framework to say, 'Where, inevitably, these human rights do come into conflict, how do we find a balance?' Some of the principles that are laid out there include the fact that no particular right should be completely crushed by the other. The third part of article 18, which I did actually mention in my opening remarks to these amendments, and Senator Rice mentioned it as well, goes to the fact that any limitation must be necessary—not just reasonable or other things; it must be necessary. We can still achieve the ability for all Australians to access marriage without some of the limitations that are inherent in the Smith bill.

Lastly, I turn to the issue of conscientious objection. Again, that was discussed in some detail during the Senate select committee, and where the committee reached a conclusion was based on the understanding that each of us, as it turns out, incorrectly had around precedent in Australian law for conscientious objection. We looked at the conscientious objection that was provided to people who had been required to provide military service, and the general view was that was based on a religious view and on objection to war. It was subsequently pointed out to us—in fact, I think everyone's received an email—by the Defence Association that conscientious objection was actually changed in 1992 so that any individual, even if it wasn't based on a general religious objection to war, could make a conscientious objection about a particular conflict that they didn't wish to participate in and that that would be respected under Australian law. So there is actually a precedent for us to recognise conscientious objection that doesn't have a religious basis when it comes to the obligation to provide a service under Australian law.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

Thank you for that response, Senator Fawcett. I think the debate over whether there's a need for more religious protections goes to the finding of our Senate inquiry report that, yes, there are issues here that need to be addressed but they should not and cannot be properly addressed through this marriage legislation—and they do not need to be addressed through this marriage legislation. Senator Smith's bill that we are debating today contains quite sufficient protections, religious provisions, religious protections and religious exemptions to cover the issues associated with marriage.

On other issues relating to religious protections, yes, there is a debate that needs to be considered, but it needs to be considered in the context of our antidiscrimination law. I note your statement: 'Oh, well, it's very complex and it's a very difficult thing to do.' I would hope that the fact that this issue of religious freedom has come up and we have been discussing it will lead to some greater support for the recognition of the need to have more comprehensive antidiscrimination laws and, in fact, to have a charter of rights or a bill of rights, so that we can join every other Western democracy in the world and have a comprehensive suite of protections rather than the patchwork of antidiscrimination laws that we currently have.

On the issue of conscientious objection, again, the Senate committee was very clear. In fact, the committee said:

The committee notes that providing ministers of religion and civil celebrants with a right to refuse to solemnise a marriage based on 'conscientious belief' was controversial, including due to a lack of precedent under Australian law.

The committee is guided by the limited legal usage of 'conscientious belief' but observes that it would be unprecedented to allow 'conscientious belief' to be used to discriminate against a class of persons.

And that's what these amendments are seeking to do. The report continues:

The committee is not inclined to disturb established anti-discrimination law and practice. Overall, the weight of evidence suggests that there are philosophical questions that go to the very definition of religion, marriage, and a democratic society that require full consideration.

And there was a quote from Anna Brown, from the Human Rights Law Centre, who said:

The idea that a personal moral view could be used to treat someone unfairly because of a particular attribute strikes at the very heart of the rationale for our discrimination laws to begin with, which is all about ensuring equal treatment regardless of particular personal attributes. Introducing a justification for discrimination on the basis of a personal moral view is giving a blank cheque to discriminate.

We are here debating equality. We are debating removing discrimination. That's what the Australian public asked us to do: to remove discrimination in our marriage laws, not to be introducing a blank cheque to discriminate.

Zed Seselja (ACT, Liberal Party, Assistant Minister for Social Services and Multicultural Affairs) Share this | Link to this | Hansard source

I rise to indicate that I will be supporting these amendments. Senator Fawcett set out very well some of the background. I commend Senator Fawcett and Senator Paterson and others who have put in a lot of work into considering some very carefully-crafted amendments that very much go to ensuring that, in honouring the vote of the Australian people in the postal survey, we do recognise and we do ensure that there are adequate and proper protections for religious freedom, for freedom of conscience and belief, and other areas. I think Senator Leyonhjelm said it well—and I agree with him—that freedom of conscience is not something that is just exclusive to people of faith. I think that is a self-evident point: some of us here are people of faith, other people are agnostic or atheist. That doesn't matter. That doesn't mean that people don't have a right to conscientious objection.

I did want to go to the point around the definition, because Senator Rice claimed in her contribution that, in fact, including a definition where both the union of a man and a woman and the union of two people would be equally recognised at law, equally called marriage and equally given all of the rights and protections that go with marriage is somehow discriminatory. I reject that. And I reject it completely because it appears to be suggesting that simply to mention that a marriage may be a union between a man and a woman is somehow discriminatory. It's not. It doesn't build a hierarchy. It doesn't do anything other than recognise that, in fact, there will be unions of a man and a woman, and there will be unions of people of the same sex, both recognised equally under law once this marriage bill passes.

I think that contrary to Senator Rice's point, I would say that this is actually a very unifying amendment because it recognises what will be the new reality that the Australian people have voted for. They will have voted that marriage can be a union between a man and woman—as it is currently reflected in law—and it can be the union of two people of the same sex. That's what the people have voted for. Those who voted yes haven't voted to obliterate the idea of there being a union between a man and a woman. If we look at what people who voted yes were looking for, that was to include in the definition of 'marriage' a union between two people of the same sex. They didn't vote to obliterate that. But, of course, it also goes to the point of saying—and this goes to a broader point, and a point I made in my speech on the second reading—as we progress through these amendments, we have the opportunity to effectively have a bill and a law that is unifying and reflects the fact that not just 40 per cent, or a tick under 40 per cent, of Australians voted no. But we know from all of the published opinion polls that a substantial number, in fact a majority of those people who voted yes, very much believe in freedom of religion and conscience. They actually want to see these things protected.

Wholesale rejection of the amendments to this bill, as I'm sure many in this chamber are proposing to do—and I think the Labor Party now en masse have said that they will do—is not the unifying way as we go forward and as we have the wash-up of this debate, which I think has been, in large part, a very respectful debate. This amendment, and why it should be supported, goes to ensuring that we have a balanced bill, that we don't completely disenfranchise 40 per cent of Australians and, indeed, that we reflect the will of many Australians who also voted yes and who believe that these concepts are very important and that protecting these concepts at law is very important. Many of those who have argued for the 'yes' case have said that they are just as committed, or more committed, to the idea of same-sex marriage, and they are just as committed, or more committed, to the idea of religious freedom and conscientious objections. Let's, as we progress, have sensible amendments—I think these are very sensible amendments—that actually look to ensure that, at the end of it, we've got a bill that is very much a unifying moment for Australia rather than one that will continue to pit one part of our community against another.

Concetta Fierravanti-Wells (NSW, Liberal Party, Minister for International Development and the Pacific) Share this | Link to this | Hansard source

( I support these amendments and commend Senator Fawcett and Senator Paterson for the work that they've done. I want to make some comments in relation to the definitional issue. I think it's foundational and an issue that is vitally important in this debate. The Smith bill redefines 'marriage' as the union of two people, and I believe that this unnecessarily extinguishes a definition held not just by the people who voted no; let's not forget that the 'no' vote was actually the no and the people who didn't vote was 52 per cent of the actual voting people here in Australia.

The particular amendment we are discussing extends the definition of 'marriage' to include the union of two people. As Senator Seselja has just said, this is a unifying amendment. It recognises the two different views that are held in our Australian population, and I really don't understand why those opposite now choose to say that we should substitute one definition with another. The proposed definition that we say should be considered is that 'marriage' should include only the union of two people to the exclusion of all others, voluntarily entered into for life, or the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. This definition adequately reflects the social, the cultural and the religious diversity that is Australia today. It clarifies most importantly that both of these points of view are legitimate and both are held to be equal definitions of marriage.

The question that was put to the survey was 'Should the law be changed to allow same-sex couples to marry?' This definition absolutely does that. Expanding the existing definition to allow same-sex marriage is much more consistent with the will of the people of Australia than the proposition that Senator Rice is advancing. I can say this, Senator Rice: I bet my bottom dollar that, if this amendment is not passed, it won't be too long before somebody is hauled up before some antidiscrimination board just because they dared to go out there and say, 'Oh no, marriage is between a man and a woman.' Let me give you an example. Recently I was at a nonsystemic Christian school and this was the very issue that was raised with me by parents. I bet my bottom dollar that it won't be too long before such a suit will be brought by activists. So let's avoid this and have this definition inserted into the legislation which, as I said, legitimately and equitably includes both definitions. Senator Fawcett has talked about article 18 of the International Covenant on Civil and Political Rights; also I would remind the chamber about article 23, which talks about the rights of men and women of marriageable age and clearly reflects that marriage is between a man and a woman.

On the question of celebrants, my understanding, and Senator Fawcett can correct me if I'm wrong on this, is that the Senate select committee report into the exposure draft supported the view that celebrants who are not religious ministers should be able to refuse to solemnise a marriage consistent with their religious convictions. I understood this had been approved by Labor, the Nick Xenophon Team, the Greens and coalition senators. This is consistent with international law; conscientious objectors should also be included in the exemptions. I understand this is an amendment along the lines proposed by the Attorney-General.

These amendments are very important and it is really disappointing to see those opposite, including the ALP, now voting en masse to refuse all of them. I spent a considerable time in my speech analysing the vote, particularly in Western Sydney, and I have to say to those opposite: you have well and truly forgotten your heartland. You have well and truly forgotten all those people, particularly in Western Sydney, that are members of your branches, that are members of the ALP. You have forgotten them. What is so wrong with now affording them the opportunity of having an equal say?

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

I want to return to proposed clause 5AD. Senator Fawcett responded but didn't answer my question, other than to say that celebrants would be able to discriminate on the basis of whatever conscientious beliefs that they may have. This section says:

… the authorised celebrant may disregard the current legal status of the other person's sex or gender, or their gender identity or intersex status.

I want to go to a personal example. As most people in this chamber know, my wife, Penny, and I have been married for 31 years. She's a transwoman. Does this amendment mean that, if we had chosen not to marry 31 years ago, which we might not have done—my two sisters didn't get married and they've lived with their partners for an equally long time—and we wanted to get married now and we approached a celebrant, they would be able to look at us and say, 'Oh,' and perhaps having heard of our history and had knowledge that Penny is a transwoman, they would be able to blatantly and quite discriminatingly say, 'No, we're not going to marry you'? Can I confirm, Senator Fawcett, that that is what would flow from this amendment?

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

As I discussed before, out of the context of the Senate select committee the intent is to provide the same provision to celebrants that ministers of religion have, because of the human rights they have—and extend that. And, again, because the obligation under international law is to only limit to the extent necessary, as we heard in evidence, there are many other people who would be very willing to provide the service. So that is the basis for that amendment.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

You didn't answer the question. In the situation that Penny and I hadn't been married, would an authorised celebrant be able to say, 'No, we are not going to marry you'? Despite them being a civil celebrant and able to marry us according to the laws of the land, this celebrant would be able to refuse to marry Penny and me—just a yes or a no?

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

As I've said twice already, in exactly the same manner as a minister of religion has that exemption, then, yes, so would a celebrant.

Matthew Canavan (Queensland, Liberal National Party, Minister for Resources and Northern Australia) Share this | Link to this | Hansard source

I want to put on record my support for these amendments. I do so repeating the same thing I said in my second reading contribution, which is that I do have great respect for those that want to see a change to the Marriage Act. I accept the force of their arguments and I accept the fact that the marriage law will change and that the majority of Australians want to see that. I also genuinely accept the point of view that has been put by Senator Rice while I've been in the chamber, that we don't want to replace, in her view, one form of discrimination with another or introduce a right whilst taking away others. But I respectfully make the point that, in fact, without these amendments that's exactly what we would be doing: we would be seeking to remove one form of discrimination while introducing another.

The fact is that nearly five million Australians did vote no and I think we ought to pay them respect and their dues that they had a genuine conscientious belief that the definition of marriage should not change. I don't believe, and I hope those on the other side don't believe, that the majority or even a significant proportion of those five million Australians—a lot of people—acted out of any sort of malice or dispute with those who wanted to make a change. I don't believe this was malicious in any way. It is genuinely a conscientious, different view about how our law should relate to marriage.

Whatever we do today, whatever we do to change the definition of 'marriage' in our country, will not change the fact that there will remain a definition of traditional marriage in our international human rights law and in particular in the International Covenant on Civil and Political Rights. The provision in article 23 of the International Covenant on Civil and Political Rights, as my colleague Senator Concetta Fierravanti-Wells mentioned, is that a man and woman of marriageable age should be allowed to marry. That definition will not change as a result of anything we do in this place or the other place or anything that the government so decides in Australia. That definition will remain there in international human rights law. I don't see that changing any time soon, because 85 per cent of countries around the world continue to maintain a definition of traditional marriage in their relevant marriage laws and most of those countries don't seem likely to change their laws any time soon. So all these amendments do is reflect the fact that there is a definition of traditional marriage in human rights law by establishing that as one arm of the definition but then also recognising that now in Australia we will add on a broader definition which includes people of the same sex as well. These amendments therefore are consistent and in line with international human rights law, and they are in line with giving due respect to those Australians who continue to genuinely and conscientiously hold a traditional view of marriage.

I think an unfortunate thing throughout this debate has been a lack of recognition of or a lack of seriousness in engaging with those who have a conscientious view that marriage should be defined as being between a man and a woman. With all respect, I think that has been evident and on display here today where Senator Rice, either wilfully or not, has been misrepresenting the arguments that have been put strongly in favour of maintaining traditional marriage as the definition. Continually we hear from Senator Rice and others in this debate that this is somehow a religious concept or only relating to peoples' religious views or faith. Either those who make that point have not been listening to the arguments that have been put on the other side or, as I say, they are wilfully misrepresenting those arguments. Those arguments are not based on religious viewpoints primarily. Although many of us have particular faith based religious views, the view that marriage should be defined in a traditional way as between a man and a woman is something that predates all the religions that are practised here in this country.

Every human culture that has independently grown up in the world's history over tens of thousands of years has had a concept of marriage or union between a man and a woman. I dispute anybody to say that that primarily has come from a belief in the Father, the Son and the Holy Spirit or Mohammed or any other religious figure. That's come about almost clearly in an evolutionary way because there is something biological and fundamental about a man-and-woman relationship. A single man and a single woman is the only way we can create another human life and perpetuate human civilisation. It's a pretty special relationship and it will continue to be. Regardless of whether we call it 'marriage' or however we define the law, there is still going to be only one way that we can create new life in the world. I think that's a miracle and that's why I think there is some recognition of that relationship.

That being said, I also accept now, given the vote of the Australian people, that we need to recognise in our law those same-sex couples that love each other and genuinely want to recognise their relationship in the law. These amendments allow us to achieve both of those things. They allow us to give recognition to those of the same sex who genuinely want to have their unions recognised under our law while still maintaining respect for the thousands of years of human civilisation and history which recognise there is something special about a 'one man, one woman' relationship which can create life and create family, and that's why I support these amendments.

I also just briefly want to touch on the fact that I think it would be incredibly discriminatory to say to those Australians who genuinely and conscientiously hold this position that they cannot pursue a career as a civil celebrant. If we do not pass these amendments, that will be the effect of the change we are making here in this place. We would be saying to those roughly five million Australians, 'You need not consider or pursue a career as a civil celebrant, because your own conscientious and traditional views will be inconsistent with that career path.' I think it unfortunate, therefore, that, in trying to remove one form of discrimination, we would be, clearly, establishing another form over a significant number of the Australian people. I see no real bar with defining and saying here that, if you genuinely hold another view, you should not be forced to do something against those conscientious beliefs. That will in no way have any practical impact on same-sex couples being able to solemnise their marriage with a celebrant who does not hold those views, while giving respect to the significant proportion of Australians who have a different view.

These amendments are about respect. These amendments are about making sure that we give respect to all the views, and the diverse views, that exist in our country. I often hear from the other side that they celebrate diversity and they want to welcome a range of different views in our community. Unfortunately, though, that's not often translated in the actual practice of the laws, because they are a party of uniformity, and if you do have a different view you are beyond the pale and not accepted. These amendments would allow an acceptance for all Australians. They give respect to all different views. That's why I support them and commend these amendments to the Senate.

Dean Smith (WA, Liberal Party) Share this | Link to 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.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to 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.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I want to make some brief comments in response to observations by Senator Smith and Senator Wong. The first point is one that Senator Smith will know well but perhaps not all senators know well, and that is to go back to the Senate select committee inquiry that took place in January and February this year to examine these issues. As Senator Smith knows, like him, I was a member of that committee and participated in the inquiry and the committee's report, and Senator Fawcett was the chair of that committee. To say that Senator Smith's bill is a product of the work of the committee is absolutely true. It is equally true to say that the bill that I produced and the amendments that I'm moving today with Senator Fawcett, which are based on my bill, are equally a product of the committee. Neither can be said to have the endorsement of the committee because both of them were produced after the committee handed down its final report. Neither bill has been put to the committee; neither bill has been discussed by the committee. The committee's report, if you read it, is silent on both bills because the bills did not exist at the time the committee reported. It's been said by some in this debate that Senator Smith's bill is the consensus of that committee. It could not be, given that the committee didn't consider it, and it certainly cannot be, given that at least two members of that committee, in myself and Senator Fawcett, disagree with it.

On the question of whether the amendments I'm moving and the bill that I released are Liberal or not—with the greatest respect, I will not take advice on what is Liberal or not from Senator Wong, the leader of the Labor Party in the Senate. Although I respect her as perhaps a scholar on social democratic values, I don't respect her as a scholar on Liberal values. There are many areas from which we can draw our inspiration for Liberal values, and I respect that, within our party, each of us applies those values in different ways. As it is always said, the Liberal Party is a broad church, and we can come to different conclusions on policy issues, even if we broadly share the same values. But one source we can consult to inform ourselves about what Liberal values are and what they constitute is the We Believe platform of the federal Liberal Party, which all Liberal members and senators seek to uphold. In the second point—and I think it is significant that it is the second point of We Believe—after stating that we believe in Australia, its people and its future, the federal platform of the Liberal Party, which is mirrored in broadly similar language by the state platforms of the party around the country, states that we believe:

In the innate worth of the individual, in the right to be independent, to own property and to achieve, and in the need to encourage initiative and personal responsibility.

It goes on to say in point 3:

In the basic freedoms of thought, worship, speech, association and choice.

Any bill or any amendment which seeks to protect freedom of thought, worship, speech, association and choice—as my bill did, and as these amendments drawn from my bill do—is, I think, the heart of liberalism.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

One of the things I love about the Senate chamber is this committee stage, because you can actually come to the detail of bills and challenge assumptions. Senator Smith, in his contribution, highlighted the fact that the sensible accommodation in his bill, which was recommended by the committee, was the establishment of the traditional marriage celebrants. Clearly, what's been misunderstood here is the proposal in these amendments: we are saying it shouldn't be a time limited option for civil celebrants who wish to be identified as a traditional marriage celebrant and go into that category; we're saying that this should be an ongoing option. Many people here seem to have formed the opinion that what we're arguing for is someone who is a civil celebrant only to have those same options and rights. What we're arguing for is that, on an ongoing basis, people should be able to notify the registrar that they wish to be identified as a traditional marriage celebrant, and go into that category that Senator Smith has quite correctly said is an appropriate balance moving forward. So these amendments actually calling for an ongoing existence of that category for a civil celebrant who wishes to move into that category.

For those who are saying they oppose this because it's so novel, we're just arguing that what Senator Smith has put forward as an interim or grandfathered measure for existing civil celebrants should be an ongoing measure. And so the argument that it's completely novel and unprecedented is actually revealed as not to be true by the contribution Senator Smith has just made. So, I'd ask people to consider that in their judgement on these amendments. We're actually supporting that category that the committee recommended, that Senator Smith has adopted, but we're saying it should be ongoing as opposed to time limited.

The CHAIR: The question is that amendments as moved by Senator Fawcett, those being (1) to (19), (21) to (23), (25), (27) to (38), and (40) to (44) on sheet 8326 be agreed to.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

(In division) Is the amendment relating to the definition able to be separated from the amendment relating to celebrants?

The CHAIR: I believe that that question has been put, Senator Macdonald. All of the amendments on sheet 8326 were moved, by leave, together. However, they are separate questions.

Which one are we voting on now?

The CHAIR: Amendments (1) to (19), (21) to (23), (25), (27) to (38), and (40) to (44) on sheet 8326.

Can someone help me? Is that the issue on the definition or on the celebrants?

Government senators: Both. They're all together.

I'm asking: can they be split?

An opposition senator: No.

The CHAIR: Senator Macdonald, they have been moved, by leave, together. The Senate has already agreed that all of the amendments on sheet 8326 be moved together. However, we have separated them out in the manner I've just described so that the first question is that the amendments be agreed to and the second question is that schedule 1 stand as printed.

I'm asking if the different amendments can be voted on separately.

An opposition senator: No.

The CHAIR: The answer is no.

I'm asking the Chair—thank you for your help!

Honourable senators interjecting—

I'm exercising an informed vote on this, unlike those numpties over there, who are just doing what they are being told to do.

The CHAIR: Senator Macdonald, please resume your seat.

Honourable senators interjecting—

The CHAIR: I remind senators to be respectful. This has been a respectful debate; let's keep it that way. I've made my point, Senator Macdonald. I've made my point that the Senate has made its decision. Senator Birmingham?

An honourable senator: He can't speak if he's not in his chair.

The CHAIR: Senator Birmingham, you can't move now.

Honourable senators interjecting—

The CHAIR: Order! I am seeking to keep the debate respectful and keep people orderly. Senator Birmingham, you have the call.

Simon Birmingham (SA, Liberal Party, Minister for Education and Training) Share this | Link to this | Hansard source

Thank you, Chair. I just wanted to say, if it may help Senator Macdonald, that there are subsequent amendments that deal more separately with the question in relation to celebrants and their treatment that don't necessarily change the definition of 'marriage'. Whilst of course you're right, Chair, that the chamber had already agreed to deal with these amendments together, it would be helpful, at least for Senator Macdonald, who asked a reasonable question, to understand that there are subsequent amendments that do deal with the matters on separate terms.

The CHAIR: Thank you, Senator Birmingham. The question now is that section 39DD and subsection 39DE(3) in item 8, and items 9 to 16 and 57, of schedule 1 stand as printed.

Progress reported.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Mr President, I raise a point of order. Unfortunately, due to the timing, I couldn't raise it when I wanted to with the Chair of Committees. In the last division, I sought to have the division separated so that I could support the retention of the Smith bill definition of 'marriage' but also support—if I could loosely call it this—the Paterson bill in relation to the protection of celebrants. I asked the Chair of Committees if we could divide the questions so they could be voted on separately. The chair ruled against me. I was going to ask the chair if she could refer the matter to you for further consideration. My understanding always was that, whilst the Senate by leave agreed to deal with these matters as one debate, any senator has the right to ask for divisions to be done individually. I put that to you not to respond now, but could you review the chair's decision on refusing to allow those amendments to be split?

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

On the point of order: it is the case that a senator can ask for a question to be divided, even in circumstances where the Senate has given leave for them to be put together. But Senator Macdonald sought that the question be divided after the division had been called. It is not the case that, once a division is called, there is usually—

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

That wasn't the ruling.

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

Well, the circumstance in which the senator sought that the question be divided was after the division had been called. Obviously, you're entitled, Mr President, at a request of a senator, to consider it. But I make that factual point.

Scott Ryan (President, Special Minister of State) Share this | Link to this | Hansard source

I will take advice from the Clerk and look over the events of that particular division immediately preceding question time.