Tuesday, 28 November 2017
Marriage Amendment (Definition and Religious Freedoms) Bill 2017; In Committee
It's a great privilege and honour to move these amendments together with Senator Brandis. I do that recognising that Senator Brandis and I have differing opinions on the substantive changes we're debating today. Once again, as I have in other contributions to this debate, I specifically single out my great respect for Senator Brandis's views on this issue. While we have a difference of opinion, I think he always puts his views in a respectful and eloquent way. I am very happy and honoured to join with him to move this amendment because it is a way, I think, that we can make the substantive change to the Marriage Act following the survey results in a way that recognises as many views as possible in our country, rather than just the view of the majority alone.
I think we should seek in this place, where possible, to make changes which unite the country, not divide it, because I fundamentally believe in the former Prime Minister Howard's statement that what unites us as Australians is much greater than what divides us. For most of tonight we have focused on issues that do perhaps divide us, and normally in this place that's where the focus and concentration rightfully come into view. But I think that, when you look at the contributions to this debate, we are actually all of one mind in this chamber that the Marriage Act should change as a result of the survey. So that's something that unites us. I would think and hope that as a country we are all united.
There should be nothing that limits or derogates from the rights of people to worship, practise, observe or teach their religious views, as long as it's done in a lawful manner. I agree with Senator Brandis that there is the potential for us to change the Marriage Act in a way which does not contravene those fundamental human rights. Notwithstanding my own view that I would prefer not to change the definition in the Marriage Act, I accept that there is a way that can be done that does not limit fundamental human rights. However, where I may depart slightly from Senator Brandis is that I have concerns that there are other ways we can change the Marriage Act which do in fact limit people's fundamental human rights, including their right to freely practise their religious views. So what this particular change does is simply ensure that we make the changes in a way that expands the rights that Australians hold and can live under, rather than trade one right for another, which I'm concerned may arise if we do not even support something as simple and clear as this provision.
I note that Senator Wong in this debate made a fine contribution earlier, mentioning that there's a distinction between someone's right to worship or hold a religious view and their right to act on that view. There is certainly a distinction there between someone holding a view and perhaps even expressing a view and acting on it in real life. I accept that there are legitimate limits on how someone should act within their religious views where they may restrict other human rights or public policy goals. That's why in this provision the protection, as Senator Brandis pointed out, is triggered or arises only where people are acting in a lawful manner. That condition is not limited in any way. That condition includes laws under state jurisdictions as well. That condition captures changes to law which might otherwise occur in the future, not just the current law. All it says is that, as long as someone is not breaking the law, they're free to practise, free to worship and free to observe and teach their own religious views.
I think that is something that is fundamental in our Western civilisation and fundamental to the rights and privileges that we all enjoy in a modern democracy. Indeed, I would argue that the consequence and legacy of our end point here in a modern democracy actually had its origins in modern times, often, in disputes and battles by people to establish religious freedoms centuries ago. Many other freedoms also originated from those battles and freedoms, some of which I'm sure people would argue are more important or have more consequence in people's daily lives today. But I think the actual seed of the broader freedoms we have today often arose out of these issues to ensure people have this fundamental right and freedom, which largely did not exist a few hundred years ago across the world.
I note that Senator Wong mentioned that this doesn't capture 18.3 of the ICCPR, which goes to limiting someone's religious beliefs, but again I return to the fact that in fact it does reflect that provision. This is not, as Senator Brandis says, an attempt to enshrine article 18 of the ICCPR in legislation, but it does capture that concept that Senator Wong mentioned in 18.3 because it says that only acts which done are in a lawful manner are protected by this provision, and that gives effect to 18.3 of the ICCPR.
Senator Wong mentioned that she has some advice or concerns that there may be adverse consequences from this particular provision, although they weren't fleshed out in any detailed way in her contribution. I can only imagine, though, that the adverse consequences she may be highlighting or trying to point to would be that someone is not limited to freely expressing their religious views in a lawful manner. I can't see how there would be any other consequences from this provision. It's one sentence. The only thing the provision does is say that, as long as someone is acting consistent with all laws, including the laws in this particular amendment or the revised marriage law, they are otherwise free to express, practise, observer, worship and teach their religion. What other adverse consequences could there be but that Senator Wong or others that are providing this advice are considering that there should in fact be further restrictions on people's ability or rights to practice, observe and teach their religious views that go beyond existing laws which are already covered in this provision? I don't know what those additional concerns or consequences might be, but that does give rise to some of the legitimate and genuine concerns we have on this side that there are potentially some that may seek to restrict people's religious rights and freedoms in a way that's not explicitly outlined in this legislation at the moment. All this does is provide a shield and protection against that particular outcome happening.
I note that also in Senator Wong's contribution, as well as other broader ones in this debate, there has been the view that these issues are broader and raise more comprehensive issues and concerns and therefore need to be considered in a different process, on a different track, including the Ruddock review, established by the government last week. I find it extremely unlikely that the result of the Ruddock review, or any other consideration of these matters, would see us come back and revise the Marriage Act itself. I don't think that will be the focus of the Ruddock inquiry or other inquiries. There are broader issues that go to freedoms—and broader than just freedom of religion—but I don't think we'll be coming back and revising the Marriage Act itself; I think this is our only opportunity to get this right in the immediate time frame. I, therefore, believe that something as uncontroversial and as affirming as this is about our fundamental freedoms and rights in this country should be put in this bill to make sure that we change the Marriage Act in a way which is rights-enhancing and which increases the number of protections that people have, rather than risk making one change that some see as enhancing rights while limiting and taking away other rights that we have lived under and enjoyed in Australia for centuries.