Senate debates

Tuesday, 28 November 2017

Bills

Marriage Amendment (Definition and Religious Freedoms) Bill 2017; In Committee

5:02 pm

Photo of James PatersonJames Paterson (Victoria, Liberal Party) Share this | Hansard source

by leave—I and at the request of Senator Fawcett move amendments (1) to (10) on sheet 8327 together:

(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".

(2) Clause 2, page 2 (table item 2), omit the table item, substitute:

(3) Schedule 1, item 1, page 4 (lines 4 to 16), omit the item, substitute:

1 After section 2

Insert:

2A Objects of this Act

(1) It is an object of this Act to create a legal framework that:

(a) provides that marriage means:

  (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

(b) fulfils Australia's international obligations, and addresses matters of international concern, including:

  (i) protecting the rights of freedom of thought, conscience, religion, expression and association in relation to the holding, expressing, or acting on, certain beliefs; and

  (ii) preventing discrimination against people and entities in relation to holding, expressing, or acting on, certain beliefs; and

  (iii) making it unlawful for people or entities to be deprived of benefits, or to be subjected to detriments, obligations or sanctions, for exercising freedom of thought, conscience, religion, expression and association in holding, expressing, or acting on, certain beliefs; and

(c) protects freedoms described in subparagraphs (b) (i), (ii) and (iii); and

(d) eliminates, as far as possible, discrimination against persons or entities on the ground of religious or conscientious belief; and

(e) ensures, as far as practicable, that everyone has the same rights to equality, regardless of religious or conscientious belief, as the rest of the community.

Note: The objects of this Act relate to the marriage power and, to the extent that the objects provide for the protection of freedoms, to the external affairs power.

(2) For the purposes of paragraph (1) (b), Australia's international obligations include obligations under the following:

(a) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23), including Articles 18, 19 and 22;

(b) the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40), including Article 5;

(c) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5), including Article 13;

(d) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4).

(3) In addition, the elimination of intolerance and discrimination on the basis of religion or belief, including as evidenced by the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by the General Assembly of the United Nations on 25 November 1981 (resolution 36/55) is a matter of international concern.

2B Alternative constitutional basis for Part VAA

(1) Without prejudice to its effect apart from this section, Part VAA also has effect as provided by this section.

Corporations power

(2) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision:

(a) confined to a person that is a corporation (within the meaning of paragraph 51(xx) of the Constitution); or

(b) confined to a person:

  (i) who is an officer or employee of such a corporation; and

  (ii) in connection with the person's duties as an officer or employee that relate to the trading activities of the corporation as a trading corporation or the financial activities of the corporation as a financial corporation (as the case may be).

External affairs power

(3) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to giving effect to the international obligations and matters of international concern including those mentioned in section 2A.

Trade and commerce power

(4) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place in the course of, or in relation to, trade or commerce (within the meaning of paragraph 51(i) of the Constitution).

(5) Subsection (4) does not apply to the extent (if any) that its application would infringe section 92 of the Constitution.

Note: Section 92 of the Constitution requires trade among the States to be absolutely free.

Territories power

(6) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place wholly or partly in a Territory.

Telecommunications power

(7) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct is engaged in using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).

Banking power

(8) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place in the course of, or in relation to, banking (within the meaning of paragraph 51(xiii) of the Constitution).

Insurance power

(9) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place in the course of, or in relation to, insurance (within the meaning of paragraph 51(xiv) of the Constitution).

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

2A Subsection 5(1)

Insert:

Commonwealth authority means:

(a) a Minister; or

(b) an Agency within the meaning of the Public Service Act 1999; or

(c) a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth enactment, not being an organisation that is registered under the Fair Work (Registered Organisations) Act 2009 or a branch of such an organisation; or

(d) a body established or appointed by the Governor-General, or by a Minister, otherwise than by or under a Commonwealth enactment; or

(e) a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth enactment, other than a person who, by virtue of holding that office, is the Secretary of a Department; or

(f) a person holding or performing the duties of an appointment, being an appointment made by the Governor-General, or by a Minister, otherwise than under a Commonwealth enactment; or

(g) an incorporated company over which the Commonwealth, or a body or authority referred to in paragraph (a), (b), (c), (d), (e) or (f), is in a position to exercise control;

(h) a federal court; or

(i) the Australian Federal Police; or

(j) a Norfolk Island agency as defined in the Privacy Act 1988.

entity: see section 5AA.

law, unless otherwise stated to the contrary, includes:

(a) a Commonwealth law; and

(b) a law of a State or Territory.

(5) Schedule 1, page 5 (after line 12), after item 4, insert:

4A Subsection 5(1)

Insert:

public authority means:

(a) a Commonwealth authority;

(b) a State or Territory authority;

(c) a local government body established by or under the law of the Commonwealth, a State or Territory;

(d) an officer or employee of any of the authorities mentioned in paragraph (a), (b) or (c), when acting in the capacity of an officer or employee of an authority;

(e) a person or entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of another public authority (whether under contract or otherwise);

(f) a person or entity declared by the regulations to be a public authority.

Note: A non-government school in educating students may be exercising functions of a public nature but as it is not doing so on behalf of the government it is not a public authority.

relevant belief:

(a) for a person: see subsection 5AC(1); and

(b) for an entity: see subsection 5AC(2).

relevant marriage belief:

(a) for a person: see subsection 5AB(1); and

(b) for an entity: see subsection 5AB(2).

religious body or organisation: an entity is a religious body or organisation if:

(a) the entity is a body established for religious purposes to which section 37 of the Sex Discrimination Act 1984 applies; or

(b) the entity is an educational institution established for religious purposes to which section 38 of the Sex Discrimination Act 1984 applies.

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

5A Subsection 5(1)

Insert:

State or Territory authority means:

(a) a State or Territory Minister; or

(b) a Department of State of a State or Territory; or

(c) a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a law of a State or Territory, other than an association of employers or employees that is registered or recognised under a law of a State or Territory dealing with the resolution of industrial disputes; or

(d) a body established or appointed, otherwise than by or under a law of a State or Territory, by:

  (i) a Governor of a State; or

  (ii) the Australian Capital Territory Executive; or

  (iii) the Administrator of the Northern Territory; or

  (iv) a State or Territory Minister; or

(e) a person holding or performing the duties of an office established by or under, or an appointment made under, a law of a State or Territory, other than the office of head of a State or Territory Department (however described); or

(f) a person holding or performing the duties of an appointment made, otherwise than under a law of a State or Territory, by:

  (i) a Governor of a State; or

  (i) the Australian Capital Territory Executive; or

  (iii) the Administrator of the Northern Territory; or

  (iv) a State or Territory Minister; or

(g) an incorporated company over which the State or Territory, or a body or authority referred to in paragraph (a) (b) (c) (d) (e) or (f), is in a position to exercise control; or

(h) a State or Territory court; or

  (i) a State or Territory police force.

5B After section 5

Insert:

5AA Meaning of entity

(1) For the purposes of the Act, an entity means:

(a) an entity (other than an individual) within the meaning of section 184-1 of the ANew Tax System (Goods and Services Tax) Act 1999; and

(b) a non-entity joint venture within the meaning of section 195-1 of the ANew Tax System (Goods and Services Tax) Act 1999.

Note: The term entity includes body corporates, body politics, partnerships, unincorporated associations or other bodies of persons, trusts and superannuation funds.

(2) For the purposes of subsection (1), an entity is an entity regardless of whether:

(a) the entity is for-profit or not-for-profit; or

(b) the entity is a religious body or organisation; or

(c) the entity operates to make a profit or not.

5AB Meaning of relevant marriage belief

(1) A person holds a relevant marriage belief if the person holds:

(a) 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; or

(b) any one or a combination of genuine religious or conscientious beliefs that are constitutive of, supporting of or a corollary of the belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, which beliefs may include, without limitation, any of the following beliefs:

  (i) a marriage that is not a union of a man or a woman is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person;

  (ii) the family structure of a man and a woman united in marriage with their children is a fundamental building block of human society, and this family structure has significant advantages for the nurture and raising of children;

  (iii) sexual relations should only occur within a marriage, understood as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life;

  (iv) the gender difference and complementarity of men and women is an inherent and fundamental feature of human society and is reflected in the gender difference and complementarity of a man and a woman united in marriage;

  (v) a fundamental feature of a marriage between a man and a woman is the modelling for children born from, or raised in, that marriage of the gender difference and complementarity of the man and the woman;

but for the avoidance of doubt, does not include the belief mentioned at paragraph 5AC(1) (b).

(2) An entity holds a relevant marriage belief if the entity has adopted:

(a) a belief mentioned in paragraph (1) (a); or

(b) one or more beliefs mentioned in paragraph (1) (b);

as beliefs the entity holds.

5AC Meaning of relevant belief

(1) A person holds a relevant belief if the person holds:

(a) a relevant marriage belief; or

(b) a genuine religious or conscientious belief that:

  (i) a same-sex relationship is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person; or

  (ii) the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth; or

  (iii) any one or a combination of genuine religious or conscientious beliefs that are constitutive of, supporting of or a corollary of a belief mentioned in subparagraphs (1) (b) (i) or (1) (b) (ii).

(2) An entity holds a relevant belief if the entity has adopted:

(a) a belief mentioned in paragraph (1) (a); or

(b) one or more beliefs mentioned in paragraph (1) (b);

as beliefs the entity holds.

5AD Determining when a belief is held etc.

(1) For the purposes of this Act, a person or entity holds a genuine belief, or 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, a consequence of, made in connection with, based upon, constitutive of, supporting of, or a corollary of that belief)is not fictitious, capricious or an artifice.

(2) For the purposes of subsections 5AB(2) and 5AC(2), but without limiting those subsections, an entity may state or adopt a belief as a belief the entity holds by:

(a) including the belief in its governing documents, organising principles, statement of beliefs or statement of values; or

(b) adopting principles, beliefs or values of another entity which include the belief;

(c) adopting principles, beliefs or values from a document or source which include the belief; or

(d) acting consistently with that belief.

(3) For the purposes of this Act, if an authorised celebrant, chaplain or an authorised officer holds a relevant marriage belief or a relevant belief, 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, chaplain or authorised officer; and

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

5C After section 5A

Insert:

5B Act binds Crown

(1) This Act binds the Crown in each of its capacities.

(2) This Act does not make the Crown liable to be prosecuted for an offence.

5D Section 6 (heading)

Repeal the heading, substitute:

6 Interaction of Act with State and Territory laws

Act (other than Part VAA) not to exclude operation of certain State and Territory laws

5E Section 6

Omit "This Act", substitute "(1) This Act (other than Part VAA)".

5F At the end of section 6

Add:

Part VAA of this Act is intended to " cover the field "

(2) It is the intention of Parliament that, in order to recognise the protections, rights, privileges and entitlements of a person or entity that holds a relevant belief or a relevant marriage belief and to ensure that such protections, rights, privileges and entitlements are recognised equally and without discrimination in all States and Territories, Part VAA operates:

(a) to cover the field in relation to those protections, rights, privileges and entitlements; and

(b) to provide a complete, exhaustive and exclusive statement of the law relating to those protections, rights, privileges and entitlements; and

(c) to exclude and limit the operation of the laws of the States and Territories in relation to those protections, rights, privileges and entitlements.

(3) For the avoidance of doubt, and without limiting subsection (2), if a protection, right, privilege or entitlement granted, or a limitation provided for under Part VAA of this Act, is inconsistent with a protection, right, privilege or entitlement granted, or a limitation provided for, under a law of a State or Territory, this law shall prevail, and the State or Territory law shall, to the extent of the inconsistency, be invalid.

(4) In addition, proceedings must not be brought against a person, and a person must not be convicted of an offence under a State or Territory law or otherwise be found to have contravened a provision of a State or a Territory law, if:

(a) a law of a State or Territory deals with a matter dealt with by Part VAA of this Act; and

(b) an act or omission by a person that constitutes an offence against, or a contravention of, that law is permitted by Part VAA of this Act.

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

17A At the end of section 43

Add "(subject to Part VAA)".

(8) Schedule 1, page 15 (after line 26), after item 58, insert:

58A After Part VA

Insert:

Part VAA—Freedom of thought, conscience, religion, expression and association in relation to holding certain beliefs

Division 1—Protection of freedoms

88J Freedom to hold or express relevant belief

(1) Subject to subsections (2) and (3), a person or an entity has the right to freedom of thought, conscience, religion or belief in relation to holding or expressing a relevant belief, including the right to have or adopt that belief.

(2) Despite any law, it is lawful for a person or an entity to hold or lawfully express a relevant belief.

(3) A reference in this section to lawful expression of a relevant belief:

(a) does not include expression that would constitute an offence against or a contravention of, a law;

(b) for the avoidance of doubt does include expression that is not an offence against, or a contravention of, a law because of section 88KA.

88JA Freedom to hold, express or act on relevant marriage belief

(1) Subject to subsections (2) and (3), a person or an entity has the right to freedom of thought, conscience, religion or belief in relation to holding, expressing, or acting on, a relevant marriage belief, including:

(a) the right to have or adopt that belief; and

(b) the right to manifest that belief:

  (i) individually or in community with others; and

  (ii) in public or private; and

  (iii) in worship, observance, practice or teaching; and

  (iv) in any action or refusal to act.

Note: For the purposes of subparagraph (1) (b) (iv), examples include acting, or refusing to act, in the course of engaging in any of the following for the purposes of preparing for, solemnising or celebrating a marriage:

(a) a for-profit or a not-for-profit business;

(b) duties as an employer or an employee;

(c) activities related to community and public affairs.

(2) Despite any law, it is lawful for a person or an entity to hold or lawfully express a relevant marriage belief and engage in lawful conduct which manifests a relevant marriage belief.

(3) A reference in this section to lawful expression and lawful conduct:

(a) does not include expression or conduct that would constitute an offence against or a contravention of, a law;

(b) for the avoidance of doubt does include expression or conduct that is not an offence against, or a contravention of, a law because of section 88KA.

(4) This section does not imply any limitation on the rights of a person or entity to act on a relevant belief.

88K Protection from unfavourable treatment

(1) Despite any law it is unlawful for a public authority or a relevant person or entity within the meaning of subsection (2) to treat or propose to treat another person or entity unfavourably, or subject or propose to subject the person or entity to any detriment or disadvantage, obligation or sanction, or denial of any benefit, whether directly or indirectly, including, without limitation, in relation to any of the following:

(a) the employment of a person;

(b) the engagement of a contractor or volunteer;

(c) academic, trade or professional qualifications, accreditation or licensing;

(d) accommodation;

(e) education;

(f) the provision of economic benefits, including grants, funding or subsidies;

(g) the supply or acquisition of goods, services or facilities;

(h) the assessment or selection of a person or entity to be a supplier or acquirer of goods or services or facilities;

(i) the administration or enforcement of Commonwealth, State, Territory or local government laws and programs, including the granting of funding under those laws or programs;

because the other person or entity:

(j) holds or expresses a relevant belief other than a relevant marriage belief; or

(k) holds or expresses a relevant marriage belief; or

(l) engages in any lawful act or lawfully refuses or omits to engage in an act because the person or entity genuinely believes that the act or refusal or omission is consistent with a relevant marriage belief; or

(m) has a characteristic that appertains generally to a person or entity described in paragraphs (j), (k) or (l); or

(n) has a characteristic that is generally imputed to a person or entity described in paragraphs (j), (k) or (l); or

(o) associates with a person or entity described in paragraphs (j), (k) or (l) or associates with a group or is a member of a group which is an entity described in paragraphs (j), (k) or (l) or which includes a person or entity described in paragraphs (j), (k) or (l); or

(p) employs or engages as a contractor or volunteer (or has not refused to employ or engage as a contractor or volunteer) a person who is described in paragraphs (j), (k) or (l); or

(q) provides goods, services, funding, subsidies or other economic benefits to a person or entity who is described in paragraphs (j), (k) or (l) (or has not refused to do so); or

(r) acquires goods, services, funding, subsidies or other economic benefits from a person who is described in paragraphs (j), (k) or (l) (or has not refused to do so).

Note: Examples of detrimental action made unlawful by section 88K include the following:

(a) A public authority, such as a government agency, refuses to appoint or hire or promote or dismisses a person, employee or contractor because that person holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.

(b) A public authority, such as a government agency or private sector body exercising professional or trade accreditation functions on behalf of government or under statutory authority refuses to accredit or imposes disadvantageous conditions on an accreditation of a person or entity because the person holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.

(c) A public authority such as a local government or State or Territory or Commonwealth Government department or agency refuses to provide a grant or funding or provides it on disadvantageous conditions because the grant applicant holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.

(d) A government education authority, including a government school, or a private school when acting on the instruction of or in accordance with its funding contract with a government authority, suspends or expels a student or bans or refuses access to facilities or funding to a student club because the student or the student club holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.

(e) A public authority refuses to supply to or acquire from a person or entity goods or services or facilities or discriminates against the person or entity in a tender process because the person or entity holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.

(2) In this section, a relevant person or entity means a person or entity which engages in the conduct described in subsection (1) because it is caused or induced to do so by a public authority, including being caused or induced to do so:

(a) by a request, instruction or expectation of a public authority; or

(b) by a condition of a contract or arrangement with a public authority; or

(c) by a condition of direct or indirect funding by a public authority; or

(d) by a condition of a licence or permission granted by a public authority.

(3) It is unlawful for a public authority to cause or induce a relevant person or entity to engage in conduct described in subsection (1), including in the ways described in subsection (2).

(4) A request, instruction, expectation or condition of the following kind is void to the extent that it would cause or induce the person or entity to engage in conduct described in subsection (1):

(a) a request, instruction or expectation of a public authority directed to a person or entity;

(b) a condition of a contract or arrangement between a public authority and a person or entity;

(c) a condition of direct or indirect funding by a public authority to a person or entity;

(d) a condition of a licence or permission granted by a public authority to a person or entity.

(5) The reference in paragraph (1) (l) to engaging in a lawful act or lawfully refusing or omitting to engage in an act:

(a) does not include engaging in an act, refusal or omission that would constitute an offence against, or a contravention of, a law; and

(b) for the avoidance of doubt does include engaging in an act, refusal or omissio

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