Senate debates

Tuesday, 28 November 2017


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

9:03 pm

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

Senator Fawcett speaks of sensible dialogue. I do acknowledge he and I have very different views on these issues, but I think he is someone with whom we can have a sensible dialogue. I serve on the Parliamentary Joint Committee on Intelligence and Security with him, and in that context we often have different views, but we can have a sensible dialogue. I don't think that some of the senators who have risen in support of your amendments have followed your example, Senator Fawcett, and I think perhaps the recent hour of debate might demonstrate that. But I agree with you that these are matters that should be considered carefully, and we have. Labor senators have, including those who have a view different from mine and that of many in the Labor Party on the issue of marriage equality. I think they've formed a view. They have not sought a conscience vote on the amendments, and attempts to denigrate them for that, I think, are unworthy.

The reality is that those who are moving these amendments not only have not convinced the Labor Party but also have not convinced their own colleagues. These are amendments that essentially are drawn from Senator Paterson's legislation, which he didn't even introduce and which was criticised—or not supported—by the Attorney-General and the Prime Minister. So you did not gain the support of your own Prime Minister or your own Attorney-General for the legislative provisions that you are now seeking to amend this bill with—and that's fine. I mean, people make their own judgement about whether they're right or wrong. But I make that point because some of this debate has proceeded as if this is an entirely partisan issue. The reality is that it hasn't been a partisan issue. People of good conscience from different parties have considered these amendments, have considered Senator Paterson's bill and have come to a view that we don't believe these amendments should be supported or that the bill should proceed.

Very early in this debate—I can't remember when we started the committee stage now—I made the point that there is a distinction between the absolute right to hold a belief and a limited right to act in relation to that belief. There is a legislative and philosophical task that we as legislators and the Senate as a legislating chamber need to consider, which is: how do we, in the secular state, deal with, protect and respect the right of people to hold certain religious beliefs, and how does that interact with the principle of equality before the law and the law applying universally to Australians? This morning I said it is a big thing to make a decision as a parliament that the law will be applied differently to different Australians because they have different religious beliefs. There have been occasions on which we have done so, which I referenced this morning in relation to the Sex Discrimination Act, and I think other senators have referenced them in the debate. Extending those exemptions—that is, extending the differential treatment of particular Australians before the law because of their belief—is complex. It is a substantial task, and I put to you, Senator Fawcett, that it is not the task that should be undertaken in the context of this legislation.

The second amendment, for example—I think amendment (1) just relates to the name change, which has been dealt with previously—seeks to amend the Sex Discrimination Act to substantially change long-established protections against discrimination. Currently there is permission for religious bodies and educational institutions to discriminate under section 37(1)(d). Amendment (2) would greatly extend that carve-out by removing the requirement to avoid injury to the religious susceptibilities of adherents of that religion. The words 'avoid injury' would be replaced with a far more nebulous term, 'because of'—a term that provides no requirement for the avoidance of harm. The amendment would also greatly expand the range of organisations that can take an advantage of the carve-out from antidiscrimination law in section 37 of the SDA by radically widening the definition of a body established for a religious purpose. Finally, the amendment seeks to effectively ensure the roll-back of federal antidiscrimination laws proposed in these amendments by covering the field—that is, to exclude the operation of all state and territory antidiscrimination laws in the same area.

Whatever your views about the merit of it—and I appreciate that Senator Fawcett has different views—this is a set of amendments that go to substantially widening the differential application of the universal law under the Sex Discrimination Act. That is what it does. If we are to do that, that is something that should be considered very carefully, and we on this side of the chamber do not believe it is appropriate to consider this in the context of the legislation to give effect to marriage equality and to give effect to the vote of the Australian people to lessen, not increase, discrimination. Our position is that the primary purpose of these amendments, for the reasons I've outlined, is to substantially roll back long-established federal protections from discrimination contained in the Sex Discrimination Act. We do not believe this is consistent with the result of the postal survey, but, more importantly, we do not think this legislation and these amendments are the way in which we should deal with what is, frankly, a controversial and complex issue.


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