Senate debates

Tuesday, 28 November 2017


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

6:48 pm

Photo of Dean SmithDean Smith (WA, Liberal Party) Share this | Hansard source

I'd just like to reflect briefly on what I thought was a correct sentiment from Senator O'Sullivan. Senator O'Sullivan said, 'We must think carefully and steadily about these issues.' While Senator O'Sullivan's reflection is accurate, it's misplaced in terms of the context in which he made it.

The discussion we're having here this afternoon brings into stark relief an important point that is often lost on many people. That is that the bill that's before the chamber is a marriage bill, full stop. It's a bill that gives effect to same-sex marriage while at the same time protecting people's religious views about marriage, full stop. The issues that have been raised here in regard to parental rights, no-detriment clauses and charities—which no-one has mentioned yet—are issues that I agree are worthy of more detailed and comprehensive examination. In fact, that is, again, what the Senate committee report said. It did not reflect on parental rights or Safe Schools. It did reflect briefly on the issue of the no-detriment clause and it said that these things deserve much more detailed and comprehensive examination, because they're actually new concepts in the Australian legal architecture. They are untested, they are unorthodox and they require careful consideration.

There is a solution. There is a pathway forward. I have heard many senators reflect on the suitability or otherwise of the expert panel. I'm a public and private enthusiastic supporter of the expert panel process. Just for my coalition colleagues: let's reflect on a couple of things.

The contentious 18C freedom of speech debate did not get resolved to everyone's satisfaction, but there was progress because the contentious and sensitive issue of free speech in 18C was put into a process—the Parliamentary Joint Committee on Human Rights process. Out of that process came a report; out of that report came legislative change. What we're doing here, what the government itself has done and what the cabinet has endorsed is to establish a very detailed and, I think, trustworthy mechanism, chaired by no other than Philip Ruddock, to address all of these issues and other issues. So there is actually a pathway forward to allow these more contentious issues—these issues that extend beyond the issue of this marriage bill—to be dealt with and to ensure that they're done in a very comprehensive and confident manner, using the skills of Father Frank Brennan, the skills of Professor Rosalind Croucher and the skills of some others on that expert panel.

If these issues are worthy, they are worthy of considered, calm and careful consideration—to again use Senator O'Sullivan's words. It is not right to construct a broad bill that captures parental rights concerns and no-detriment clauses, because that is not a responsible way to legislate for these issues. And more than that, to legislate on these sorts of issues, particularly the no-detriment clause provision, without more thoroughly examining the situation is bad policy.

People listening this afternoon can be forgiven; they might think we're re-prosecuting the postal survey campaign. But no-one doubts that for some people the issue of parental rights and the issue of Safe Schools are legitimate concerns. There's no doubt. The committee has reflected on this and it's in the report: there's no doubt that some people think that a more detailed examination of the no-detriment arrangements is worthy. The question is: do you do it in a knee-jerk, reactive way, where you give colleagues a matter of hours or a matter of days to consider your amendment? Or do you do it in a more thorough, considered manner, with trusted people who enjoy public confidence? People like Philip Ruddock. Over the last little while we've heard lots of things said. I don't doubt that they are issues worthy of further examination. But they are not worthy to be put into this bill this evening or tomorrow, because that is an irresponsible way in which to legislate.

I do have a lot of confidence in the expert panel process. I'd go so far as to say that the fact that the terms of reference have not yet been set for the expert panel is a good thing, because it does mean that these sorts of considerations at the conclusion this chamber's deliberation on this very narrow bill can be properly incorporated into the terms of reference and given the thorough examination that they deserve—because the issue of freedom of religion or religious freedom in this country extends beyond the lens of Christian religious freedom. Much of what we have heard here today is a discussion about Christian religious freedom. In a country like ours, the religious freedoms of others and other faiths deserve to be understood, discussed and accommodated. How we do that is complex, and I'm sure that coalition senators would agree with me, or at least concede that point: it is a matter that is going to require careful consideration. Parental issues should not be dealt with in a bill like this. No-detriment clauses which are untested, untried in Australian law, should not be imported into a bill like this. The responsible approach on these matters captured in this amendment are best dealt with through the expert panel process.

Now, it's worth noting as well that something that has not been touched on in contributions by others thus far is the protections that have been offered to charitable concerns, which are captured in this amendment. This was an issue that I was particularly alert to because it's worth noting that charities, as a matter worthy of attention, were not included in the government's exposure draft. You could make one or two conclusions or interpretations from that: they were overlooked or they were consciously excluded. The bill that's before us is silent on the issue of charities, so I took it upon myself, during the course of last week, to write to both the Australian Commissioner of Taxation and the Acting ACNC Commissioner to get clarity, to get certainty, that there was nothing in this bill that would adversely impact upon charities. I am pleased that they were able to provide timely responses to me, and I'm grateful to them for that. I'm happy to table the two letters that I received from the Taxation Office commissioner and the charities commissioner.

Before I do, let me just briefly capture some of those comments for the record. I asked the charities commissioner two questions. The first was whether a religious charity that currently holds and/or expresses a view of or a position on marriage will be able to continue to do so without any negative impacts on its charitable status following the enactment of amendments to the Marriage Act to allow same-sex couples to marry—that is, the future act. 'The short answer', the commissioner said to me, 'to this question is yes'. The second question I asked the charities commissioner was whether the lawful refusal to conduct a marriage ceremony, deliver goods or services, or hire facilities to same-sex couples or other couples in accordance with the future Marriage Act and current exemptions in federal, state and territory antidiscrimination laws would result in any adverse consequences in relation to an entity's charitable status. 'The short answer', he says in his correspondence to me, 'is no'.

For the sake of completeness, the Australian Taxation commissioner says:

… a religious charity holding or expressing a view of a religious nature (position on marriage) will not have an impact on DGR endorsement.

He goes on to say:

Similarly, lawful refusal to conduct a marriage ceremony, deliver goods and services or hire facilities in accordance with the Future Marriage Act will be unlikely to impact DGR endorsement. These activities would fall outside the scope of the general DGR categories and would not prevent DGR endorsed religious charities from fulfilling their DGR purposes.

There's an important point that has been overlooked in many of the contributions today: we are not legislating for same-sex marriage in the absence of religious protections, but we are legislating for same-sex marriage in our country while very, very conscious that religious protections already exist in other places of Australian law. And not only do they exist; they actually operate, and operate well, as demonstrated by the letters from the charities commissioner and by the letter from the Australian Taxation commissioner. I'd go on to say that the existence of these laws and the operations of these laws can give people great confidence in legislating for same-sex marriage and that, combined with the religious protections regarding people's views of marriage which are in this bill, they can give people great confidence.

There are two world views at play in this chamber this afternoon. One world view that I happily subscribe to is that by legislating for same-sex marriage, in the context of Australia's existing laws, nothing much happens except more people can enjoy the institution of marriage, can be embraced by their families and can enjoy the benefit of having one less plank of discrimination. The other world view is that somehow the world ends for Australians and Australian families. That's just not true. It is just not true. And you don't have to put your faith in Senator Smith or put your faith in anyone else; you just have to go to New Zealand, go to Canada, go to the United Kingdom and see people getting about their business and getting about their lives. It is not right to compare the Australian legal framework with the legal framework of other like nations. The existence of bills of rights and charters of rights significantly changes the application of laws in those countries. That was a point that was made at the Senate committee hearings. I understand that they are compelling debating points for people, but they are just not suitable and just not appropriate in this context.

The issue of the no-detriment clause is one worthy of great caution, again, because the Senate committee report did state that the current protections for religious freedom do need to be enhanced, most appropriately through the inclusion of 'religious belief' in federal antidiscrimination law. The Senate committee report does not say that these things should be ignored or overlooked; it provides a pathway. Importantly, though, the issue was not canvassed extensively during the inquiry and was not proposed in the government's own exposure draft. If the government was not proposing it in its own exposure draft, what does that say about not just the necessity of it but the legal risk that the government was or was not prepared to take? The committee report went on to say that further examination of the potential form and consequences of a no-detriment clause would be required before it could be recommended by the committee—a prudent approach for legislators.

That is not to dispute whether these are important issues for consideration. The point is that these amendments do not deserve to be supported because they do not fit into the marriage bill that is before this Senate chamber. They are worthy of more detailed consideration by the expert panel that's been established by the government and endorsed by the cabinet—a process that I personally have a lot of trust and faith in—because we have seen in recent times that when issues are put into such a process they are dealt with calmly and comprehensively. You can look at 18C and free speech as an example. People's needs and concerns can be properly met, understood and legislated for if the need arises.

I would point out that we have heard little or nothing in the contributions this afternoon about the deficiencies in Australia's current laws providing for religious protections. I challenge proponents of amendments to this bill by saying: that is your first task—what is the failing in the current legal architecture around religious protections? I will not be supporting these amendments.


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