Senate debates

Tuesday, 28 November 2017


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

9:21 pm

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

I would like to put my position on the record just very briefly. Before I do, to continue from Senator Fawcett's opening remarks, I want to acknowledge the good faith in which all members of this Senate have come forward in the debate, particularly my coalition Senate colleagues in prosecuting their case and their view in regard to Senator Fawcett's and Senator Paterson's amendments. I think this highlights that there are areas in these very sensitive and, at times, difficult issues that are obviously very contested. It's, therefore, appropriate that parliament deal with these issues and that parliament deal with them in a way that is respectful and considered. We shouldn't actually be surprised that issues around the interpretation of international laws, the interpretation of their import in our domestic lawmaking and the interpretation of where best to balance rights are contested issues. I know that Senator Paterson, Senator Fawcett and I are governed by different sorts of principles in this issue, though I'm sure we share very, very similar approaches to those principles generally. But this is a difficult and sensitive issue. I just wanted to reflect on that.

Of course, it is important for parliament to debate these things. Sometimes debates can be tough; sometimes they can be time-consuming. But the task for us in this particular circumstance, in this particular context, is to challenge ideas as best we can—to put ideas forward and try to seek the support of each individual senator one by one.

But in regard to this particular amendment: in all frankness, I can't come to any other conclusion but the conclusion that this does actually dramatically alter and unwind discrimination laws in Australia. I say that because it actually lowers the threshold for discrimination in our country in a number of ways. It does that by amending the religious exemptions, by stating that an act or practice is consistent with religious exemption grounds where:

… that belief is not fictitious, capricious or an artifice.

It lowers the threshold for discrimination by amending the test of conformity with religious belief to being consistent with religious belief. It lowers the threshold for discrimination by amending the test of 'in order to avoid injury to religious susceptibilities' to 'because of religious susceptibilities' and allows a religious doctrine, tenet or belief to be adopted by a religious body, including in its statements, documents or acts. So, when I look at the detail of what's proposed, I come to the conclusion that this is actually lowering the threshold for discrimination and, therefore, allowing or widening discrimination.

My final contribution is a brief one. Just let me put on the record my understanding of the Queensland situation as it was shared to us earlier. My understanding of the Queensland situation—bear with me—is that a body established for religious purposes is the test in the federal law, which differs from the test in the St Vincent de Paul decision. Walsh v St Vincent de Paul Society Queensland (No. 2) of 2008 was a case about whether a body was a religious body in relation to section 109(1)(c) of the Queensland act relating to 'the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice'. This is a narrower test than the body established for religious purposes in section 37(1)(d) of the Sex Discrimination Act 1984 of the Commonwealth, which has been replicated in the bill before the Senate chamber now.

In deciding whether St Vincent de Paul was a religious body, the tribunal looked at the constitution documents and decided that it is not a religious body. I might just briefly read from the statement,

It is a Society of lay faithful, closely associated with the Catholic Church, and one of its objectives (perhaps its primary objective) is a spiritual one, involving members bearing witness to Christ by helping others on a personal basis and in doing so endeavouring to bring grace to those they help and earn grace themselves for their common salvation. That is not enough, in my opinion—

said the arbitrator—

to make the Society a religious body within the meaning of the exemption contained in sub-sections 109 (a), (b) or (c).

77.   Likewise, and despite the particulars which have been provided of the functions of the president relied upon, and the religious observances and practices said to be relevant, it does not seem to me that the fact that a conference president performs some functions (such as leading prayers) and has some duties (among a long list of duties), some with spiritual aspects and some with practical aspects, means that what happens at conference meetings, or what the president does in the discharge of his or her duties, involves "religious observance or practice".

Section 47B of the bill that's before the Senate chamber now and section 37(1)(d) of the SDA allow any body established for religious purposes to discriminate in the provision of goods or services in accordance with their doctrine. Section 37 also protects the ability of bodies established for religious purposes to hire, fire and discipline employees in accordance with the doctrines, tenets and beliefs of their religion or to avoid injury to the susceptibilities of adherents to that religion. I just put that on the public record just as an alternate view and descriptor to that Queensland case that was cited.

In conclusion, I will not be supporting this amendment.


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