Senate debates

Tuesday, 28 November 2017


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

10:12 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | Hansard source

I turn now to the amendment before us. As both Senator Wong and Senator Rice have pointed out, it cherrypicks the ICCPR, and in fact cherrypicks article 18 of the covenant, because it seeks to enshrine in this legislation article 18.1—that's contained within the amendment we're currently debating—but does so while leaving out article 18.3. That's been read into the Hansard already. The omission of 18.3 of the ICCPR turns a limited right to religion under international law into an absolute right in Australian law, and that is an incredibly dangerous and ill-considered thing for us to do.

It's important that we understand that article 18.3 allows for antidiscrimination laws, both here and in other countries around the world, to override claims to discriminate on the basis of belief. Without article 18.3, people will argue that their right to discriminate on the basis of belief is an absolute right. We haven't got 18.3 before us here and it's not proposed that it be inserted into the legislation. If article 18 is to be implemented, it should be implemented in its entirety. Better still, we shouldn't be seeking to enshrine any freedom of religion until we've had a comprehensive, robust and carefully considered discussion about a charter of rights in this country. Enacting only the first sentence of article 18.1 leaves out the limitations on freedom of religion that are found in the remainder of 18.1 and in article 18.3 and, as I said, transforms what is a limited right into an absolute right.

In conclusion, I want to note that there is a trend around the world in Western democracies—and this is the case in Europe as well as the United States—where conservative Christian pro bono law groups are pursuing aggressive litigation strategies to justify discrimination against LGBTIQ people. Including article 18.1 of the ICCPR in Australian law will make freedom of religion justiciable and fuel legal conflict in our country. Last year we saw the Australian Christian Lobby establish the pro bono Human Rights Law Alliance. I'll leave aside my observations about the hypocrisy of that name. But they established that alliance precisely for the purpose of litigating against LGBTIQ people, and the alliance is already running a number of cases on behalf of conservative Christians, including challenges to antidiscrimination law on the basis of the religious freedom provision in the Tasmanian Constitution, the constitution of my home state. Senator Canavan described this amendment as 'a shield'. It's not a shield; it's a sword. It's a sword that will be wielded by the conservative right against LGBTIQ people in this country, and that's why it should be stridently opposed.


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