Tuesday, 28 November 2017
Marriage Amendment (Definition and Religious Freedoms) Bill 2017; In Committee
This amendment by Senator Brandis is purportedly, as I understand it, to underline that achieving marriage equality through the legislation and religious freedoms are compatible. I support the intent of that because I do believe that this marriage equality legislation is compatible with religious protections and there are adequate religious protections in this bill. I've had many people from different religious faiths saying that this bill absolutely adequately protects their religious freedoms. I would have given this amendment more consideration if it hadn't cherrypicked the International Covenant on Civil and Political Rights, because what it is attempting to do is to make an absolute right of something that in the ICCPR is only a limited right.
In the ICCPR, yes, everyone shall have the right to freedom of thought, conscience and religion—that is, freedom from discrimination because of your religion. But then, as others have pointed out, item 3 of article 18 says that in manifesting your religion there are limitations. That is not included in this amendment. The fact that the amendment says 'in a lawful manner' does not address that absence, because the key conflicts in our antidiscrimination law and the area where you get the most complex issues that need to be addressed occur where two things are lawful but conflict. When two things are lawful but one of them discriminates against the other is when you need to have a complex, comprehensive, cohesive set of antidiscrimination laws to assess them. You cannot achieve that balance just by inserting one statement in the Marriage Act. It's not necessary and particularly inappropriate to put it there, given that it's including only one part of the ICCPR and not both.
This debate has underlined again and again and again that, yes, we are changing marriage legislation to remove discriminations in marriage and doing it in a way that protects people's religious freedoms in relation to marriage, but it has highlighted that we in Australia need to do more work on how religious freedoms relate to people's other human rights. As I've said before, the Greens believe very strongly that we should have a charter of rights to address how all of these rights balance up against each other and how they should be assessed against each other. It is within that context that we should be considering these sorts of initiatives—these sorts of recommendations—and how they are reflected in our overall human rights law, not trying to cherrypick one bit of international human rights law and inserting it out of context in this marriage legislation.