Tuesday, 28 November 2017
Marriage Amendment (Definition and Religious Freedoms) Bill 2017; In Committee
I'm glad Senator Hanson-Young asked where we draw the line, because the line is actually drawn in article 18.4 of the International Covenant on Civil and Political Rights because it specifically refers to the obligation of states parties—Australia in this case—to ensure that parents can oversee the education of their children in accordance with their own moral convictions. Their moral convictions have nothing to do with climate change, the shape of the earth or any of the other issues that Senator Hanson-Young raised. They do, however, go to the fundamental beliefs that people have around marriage and the fact that marriage is between a man and a woman and the associated issues that go to their rights as parents.
So I will be supporting these four amendments that Senator Paterson has brought up. The freedom of expression is important. It's important to realise—and I said this in my speech on the second reading—that we're talking here about a view of marriage that has been around for millennia. In fact, when the Supreme Court in the US made their decision, they recognised:
Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.
The concern that is being raised, and was raised during the Senate select committee process by many of the witnesses, is that we have already seen actions by advocates here—Senator Paterson mentioned Archbishop Porteous in Tasmania and the two pastors there—and we've seen many cases overseas where action has been taken against people not because they've been discriminating but because they have expressed their view. In some of the cases, the action that has been taken against them is on the basis that in the future they might offend someone through expressing their view. So it's not even to do with discrimination; it's that in some future act they may offend someone, and therefore action is taken against them. I think that, if Australia is to be a plural country where people can have different views that are respected and legal, we can't make a change in the law which is going to enable the kinds of actions that we've seen with Archbishop Porteous and others to be more widespread in the nation.
The examples of detriment that we've seen overseas include things like graduates of a university in Canada who were refused registration. In the UK, an employee of a housing trust mentioned that he didn't think the state should impose its rules on places of faith and conscience in respect to marriage and, as a result, the housing trust sought to sack him. Because he'd been there for a while, they weren't actually allowed to sack him in the end, but they demoted him and reduced his pay. A Mr Ngole, a UK masters student, was expelled from his university because he took part in a Facebook conversation that was completely unrelated to the university or his course and expressed his view around traditional marriage. It was reported back to someone in the university. They then took the view that his view might offend someone in the future, and so they kicked him off his course at university. To the horror of people who supported him, who then took that to the High Court in an appeal, the High Court upheld that decision. So here we have a country based on common law, like Australia, which has allowed someone to be kicked off a course purely for holding a view that marriage should be between a man and a woman and because in the future he may offend someone by holding that view. I think any reasonable person in the street would say that that is an unacceptable abuse of state power, given that, as the US Supreme Court said, people of good faith around the world have for many, many years held that view and many—in fact in Australia, nearly 40 per cent—continue to hold that view.
The amendment also goes to keeping people free from being required to endorse views that they don't actually support. We've seen that occur overseas, but also here in Australia. In the UK, for example, the National Trust, a body you would think is a good conservative place, in actual fact decided all their employees needed to wear a badge for marriage equality. For those who decided that they didn't want to wear that badge because they didn't support that view, they were required to work at the back of facilities out of public view and they weren't allowed to come back to public-facing roles until they had reformed or changed their thinking on such issues. That is reverse discrimination. We've heard here people saying we don't want to see anything that will create new discrimination, and yet that's what we've seen in the UK.
Here in Australia, we've also seen similar things. In the Northern Territory, a teacher who expressed his view and his support for traditional marriage was issued a show cause notice by the education department. In Melbourne, a Commonwealth public servant was given a formal warning because he complained about being pressured by the department to participate in a gay pride march. People are free to march, but people should also be free to say, 'I don't wish to march because I don't support the view.' So the very freedoms that have allowed people who are pushing for this change—to speak, to march, to associate, to advocate for the change—are now being denied to people who wish to support the traditional view of marriage.
One last case, where we see this attitude starting to take place, was an IT manager in Melbourne. This is evidence that was brought before the Senate select committee. An IT manager was working, coincidently, on the software that supported the Safe Schools program, and he did his job diligently and well. He was a manager in the company. But when it came to expressing his personal view, he indicated that he wouldn't want his children involved in the program. For that, he was accused of creating an unsafe work environment and was sacked by the company. That has been taken up by lawyers and is being contested, but it gives you an example of the kind of totalitarian approach which is taken when people dare to hold a view that doesn't align with that which is, to use the 'coin', politically correct, or the view that is supported, importantly, by the state and territory discrimination law.
To give you an example of how this connection between a change in federal law intersects with state and territory law, I look at the procedure document issued to South Australian schools in November of 2016. This is a document which says at the top:
Please note this procedure is mandatory and staff are required to adhere to the content.
It refers back to the changes that occurred in the Commonwealth Sex Discrimination Act where gender identity and intersex status was included in that act. It then goes through to talk about the policies in schools and what principals do and don't need to do—and they talk about things like getting rid of heteronormative language, et cetera—but the part that is concerning is you have this dynamic of linking to a change in federal legislation. In the paragraphs of the instruction, it then points to the state anti-discrimination law and says, 'If you don't do these things, you are at risk of breaching this law … suggest you go and consult the legal department'—not once, but multiple times in the document. It's clear that they take a change in federal law and then use the state antidiscrimination law as a weapon to enforce the compliance of people, even if they don't agree. This particular instruction is concerning because one of the things it requires principals to do—in this case, it's to do with gender fluidity—is, if a child decides that he or she would like to transition their gender, then the principal is to ask the parent. But what this mandatory instruction of the state government says is, if the parent objects, the principal is to decide what's in the best interests of the child and to ignore the parent's wishes. It's an example of how a change in federal legislation, using the threat of state antidiscrimination law, will override the wishes of parents, who, under article 18.4 of the International Covenant on Civil and Political Rights, are guaranteed by human rights law the ability to oversee the education of their children in accordance with their own moral values.
The provision here for parental rights is actually an important provision. I know Senator Hanson-Young said the question wasn't about that. The question received 61.6 per cent support for change, and that's why we're respecting it and not seeking to filibuster—we're going to move this change through. But 62 per cent of Australians, regardless of how they voted, also said they thought protections were important. Probably the highest ranked amongst those were protections for parents to be able to oversee the education that their children are exposed to.
There is precedent for a head of power to use this. The amendment draws on the external affairs power, because we are a signatory to the ICCPR. If you go back in Australian legal history to when Tasmania was the last remaining state criminalising homosexual behaviour, the Commonwealth used the external affairs power to override state legislation so that homosexuality was legal throughout Australia, in accordance with our obligations under the ICCPR. So there is a very direct and relevant precedent in Australian law for us to use a Commonwealth provision, to the extent necessary, to override state and territory law—in this case, to implement article 18.4 to ensure the rights of parents that are guaranteed under international law.
So those three areas—freedom of expression, freedom from being required to endorse a position that you don't agree with, and parents' right to oversee the education of their children—and the antidetriment provisions protect people with a genuine belief. It's defined in the legislation, so it's not broad—it can't go to flat-earth things. It is around the belief that marriage is between a man and a woman and it doesn't allow any new discrimination. They protect. They're a shield that protect somebody from expressing a view that is legal today—certainly legal under any Commonwealth law after this bill is passed—but could offend state and territory antidiscrimination laws, as we have seen in Tasmania. So this amendment is intended not to allow discrimination but to act as a shield for people so they are able to have that genuine belief about the nature of family. This is the kind of thing that was envisaged in the Senate select committee report, where all of the senators agreed that there were issues that needed to be carefully considered and debated if we were to reach a sensible balance that allowed Australia to remain a place where a diversity of views is both valued and legal. I commend these amendments to the Senate.