House debates

Thursday, 7 December 2017

Bills

Marriage Amendment (Definition and Religious Freedoms) Bill 2017; Consideration in Detail

12:23 pm

Photo of Alex HawkeAlex Hawke (Mitchell, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Hansard source

by leave—I move amendments (1) to (13) as circulated in my name together.

(1) Clause 1, page 1 (lines 14 and 15), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment (Definition and Protection of Freedoms) Act 2017".

(2) Schedule 1, item 2, page 5 (lines 1 to 4), omit subparagraph (b) (ii) of the definition of authorised celebrant, substitute:

  (ii) an authorised officer.

(3) Schedule 1, page 5 (after line 4), after item 2, insert:

2A Subsection 5(1)

Insert:

authorised officer means an officer (within the meaning of the Defence Act 1903), other than a chaplain, authorised by the Chief of the Defence Force under section 71A to solemnise marriages under Division 3 of Part V.

(4) Schedule 1, item 4, page 5 (lines 9 to 12), omit all the words from and including "officer", substitute "authorised officer".

(5) 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 a chaplain or an authorised officer 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 chaplain or authorised officer; and

(b) in determining whether the other person is a man or a woman, if the chaplain or authorised officer 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 chaplain or authorised officer may disregard the current legal status of the other person's sex or gender, or their gender identity or intersex status.

(6) Schedule 1, item 6, page 5 (lines 18 and 19), omit the item, substitute:

6 Paragraph 21(2 ) ( b)

After "the chaplain", insert "or authorised officer".

(7) Schedule 1, item 22, page 12 (lines 12 and 13), omit the item, substitute:

22 Subsection 71(1)

After "a chaplain", insert "or an authorised officer".

(8) Schedule 1, item 23, page 12 (line 16), omit the heading to section 71A, substitute:

71A Officers authorised to solemnise marriages

(9) Schedule 1, items 24 and 25, page 12 (lines 20 to 25), omit the items, substitute:

24 Paragraphs 72(1 ) ( a) and (b)

After "the chaplain" (wherever occurring), insert "or authorised officer".

25 Subsection 72(2)

After "the chaplain" (wherever occurring), insert "or authorised officer".

(10) Schedule 1, items 27 to 56, page 12 (line 28) to page 15 (line 22), omit the items, substitute:

27 Section 74 (heading)

After "chaplain", insert "orauthorised officer".

28 Subsection 74(1)

After "the chaplain", insert "or authorised officer".

29 Subsection 74(3)

After "chaplain", insert "or authorised officer".

30 Section 75 (heading)

After "Chaplain", insert "or authorised officer".

31 Section 75

After "A chaplain", insert "or authorised officer".

32 Section 75

After "the chaplain", insert "or authorised officer".

33 Subsections 76(1), 77(1) and 78(2)

After "chaplain", insert "or authorised officer".

34 Section 79 (heading)

After "Chaplain", insert "or authorised officer".

35 Section 79

After "A chaplain", insert "or authorised officer".

36 Section 79

After "the chaplain", insert "or authorised officer".

37 Subsection 80(1)

After "a chaplain", insert "or authorised officer".

38 Subsection 80(1)

After "the chaplain", insert "or authorised officer".

39 Paragraphs 80(2 ) ( a) and (c)

After "the chaplain", insert "or authorised officer".

40 Subsection 80(4)

After "The chaplain", insert "or authorised officer".

41 Subsections 80(5) and (6)

After "the chaplain", insert "or authorised officer".

42 Subsection 80(8)

After "a chaplain", insert "or authorised officer".

43 Subsection 80(9)

After "the chaplain" (first occurring), insert "or authorised officer".

44 Paragraph 80(9 ) ( b)

After "the chaplain", insert "or authorised officer".

45 Subsection 80(10)

After "a chaplain", insert "or authorised officer".

46 Section 81 (heading)

Repeal the heading, substitute:

81 Power to refuse to solemnise marriage

Chaplain or authorised officer may refuse to solemnise marriage on any grounds

47 Section 81

Omit "A chaplain", insert "(1) A chaplain or authorised officer".

48 Section 81

After "the chaplain" (wherever occurring), insert "or authorised officer".

49 At the end of section 81

Add:

Chaplain may refuse to solemnise marriage on the basis of religious or conscientious beliefs etc.

(2) To avoid doubt, a chaplain 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 chaplain's religious body or religious organisation;

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

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

Authorised officer may refuse to solemnise marriage on the basis of genuine religious or conscientious belief

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

(a) the officer 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 officer of that belief does not allow the officer to solemnise the marriage.

Grounds for refusal not limited by this section

(4) Subsections (2) and (3) do not limit the grounds on which a chaplain or an authorised officer may refuse to solemnise a marriage.

50 Subsection 83(2)

After "a chaplain", insert "or authorised officer".

51 Section 84 (heading)

After "a chaplain", insert "or authorised officer".

52 Paragraph 84(1 ) ( a)

After "a chaplain", insert "or authorised officer".

53 Paragraphs 84(1 ) ( b) and (c)

After "the chaplain", insert "or authorised officer".

54 Subsection 84(1)

After "the chaplain" (last occurring), insert "or authorised officer".

55 Paragraph 85(1 ) ( b)

After "a chaplain", insert "or authorised officer".

56 Paragraph 85(1 ) ( c)

After "the chaplain", insert "or authorised officer".

56A Subsection 85(1)

After "the chaplain" (last occurring), insert "or authorised officer".

(11) Schedule 1, items 59 and 60, page 16 (lines 1 to 4), omit the items, substitute:

59 Subsection 99(3)

After "A chaplain", insert "or authorised officer".

60 Subsection 116(2)

Omit "celebrant or chaplain" (wherever occurring), substitute "celebrant, chaplain or authorised officer".

(12) Schedule 1, item 62, page 16 (lines 7 and 8), omit the item, substitute:

69 Paragraph 119(3 ) ( f)

After "chaplain", insert "or authorised officer".

(13) Schedule 1, item 63, page 17 (after line 24), after subsection 40(2AB), insert:

(2AC) An authorised officer in the Defence Force may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if the circumstances mentioned in subsection 81(3) of the Marriage Act 1961 apply.

The amendments here are relatively straightforward. I say to the House that these amendments are examples of ways we can improve this bill in consistent application with the intention of the bill and of the Australian people. This isn't about delay or obfuscation. When you consider the substantive matters that are in this amendment, we are getting directly at the arrangements of the Chief of the Defence Force, the CDF, who we have direct responsibility for in Australia. Given the construction of this bill and the arrangements for civil celebrants, we need to take account of the arrangements for the defence forces—the chaplains and the authorised officers that are appointed by the Chief of the Defence Force.

As the bill currently stands, the CDF can make appointments without taking account of the conscientious objection of the individual that he appoints. This is different, of course, from the case of those who work in a registry office, where that's the purpose they're employed for. In the case of an officer of the defence forces, employed in the Air Force, the Navy or the Army for the primary purpose of conducting military operations, the marrying of service people overseas is a secondary duty, not the primary purpose of their employment. So the operational effect of this amendment would be that the defence chief would need to check that that officer of the defence forces—the Army, the Air Force or the Navy—was happy to conduct same-sex marriage and, in that case, that person would be appointed. This is a preventive measure to prevent discovering, at the time after the appointment of that officer in an overseas deployment, that that serving officer had a conscientious objection—as they have a right to, under article 18. They have a right to freedom of religion and belief. Remember that these officers are appointed by the religious denominations we are talking about—that is, they are religious ministers who are serving as officers of the defence forces who are appointed by the Chief of the Defence Force specifically to serve on operation, and to marry service personnel overseas. It happens.

Here I want to note my colleagues who have been moving these amendments. I note the service of the member for Canning and the member for Fadden, and the Reserve service of the member of New England. I've served in the Reserve forces myself.

This is a practical amendment. It will improve this bill by making sure that it does take account of the genuine conscientious objections of religious officers of the defence forces appointed by the CDF, giving them the ability to highlight that they have an objection prior to their deployment. That makes sense. It has been accepted by the Senate select committee. This is covered in the bill, but it isn't covered sufficiently to the extent that it will avoid a situation where the CDF can appoint an officer of the Army, Navy or Air Force who has this religious objection, in advance, without knowing that this will become a problem. This is a workable amendment.

I say this to the House: it has been my concern from day one of this debate and in the debate on these amendments that we are not having a genuine conscience vote on this bill or these amendments. The attitude of the Labor Party, of the members opposite, in this debate has been to vote en bloc, en masse. So I say to the appointed representative of the Labor Party, whoever it is who has been appointed to do the thinking on this amendment: this is a purely practical arrangement; it is purely to improve the quality of the legislation—even if it does mean an extra hour in the Senate to get their approval to bring it back. It is to prevent a situation where the CDF appoints a minister of religion who is also a serving officer of the defence forces who has a conscientious objection, only to find that exercised in the field or on deployment. It's a practical and sensible amendment. It simply makes sense.

Why wouldn't we have a member of the Labor Party cross the floor at any point on any one of these amendments, including this amendment that has been moved here today, if this was a genuine conscience vote? Why wouldn't that be the case? So far we have not. I'd say to members opposite: if this is a conscience vote, this is the kind of amendment on which you could easily come and join with individual members over here. I say to my colleagues here: we are having a debate amongst ourselves, and it is a good process. Some of you are looking over here and saying, 'Isn't this an interesting debate?' or joining in, but you're not joining in the conscience voting process of this parliament. You are not debating the issues and making a case for or against. You've appointed a spokesperson to do the thinking for you.

While I violently disagree with some of my colleagues here—I really do—I respect the courage and the strength of the Prime Minister in allowing a genuine conscience vote on this side of the House on these amendments. It takes courage and strength for people to disagree and move on. I disagree with my colleagues, but I respect them. And I respect their courage and strength. I respect the courage and strength of the crossbench. I respect the courage and strength of people who can disagree on these amendments. (Time expired)

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