Tuesday, 28 November 2017
Marriage Amendment (Definition and Religious Freedoms) Bill 2017; In Committee
After that contribution, I welcome Senator Brandis to the conservative Right, apparently! I think Senator McKim has shown the emptiness of his contribution here. He's actually confirmed for us the very points we are making by a snide remark that, because the Christian lobby has established a legal fund, that, somehow, in and of itself is a breach of human rights. If I'd been advising you, Senator McKim, I would have hidden my lamp behind a bushel a little bit during this debate, because I think you have shown us a bit too much there. The exact reason that this is being moved and debated is that some in this parliament, particularly the Australian Greens, have in the last year or so moved motions referring to those who support traditional marriage as bigots and calling those who potentially have those views from a religious viewpoint bigots. So the prospect that people won't be free to practise their own religious viewpoints, coming from the likes of the Australian Greens, is already confirmed by their own behaviour leading up to and during this debate this evening.
There were some more substantive points, particularly those made by Senator Rice, that I'd like to tackle briefly. Senator Rice contradicted herself, because she said at one point that this amendment does not provide any limitation to the freedom of religion and then went on to argue that in fact the limitation that exists in this provision, in a lawful manner, is not sufficient or to a great enough extent. It's either one or the other, Senator Rice. There is a limitation here, clearly. There's a limitation that if the behaviour is in a lawful manner it can be freely expressed as a part of your religious viewpoint and if it's not then it cannot. The second point you made, of more substance, is that there can be two acts that are both lawful, so to speak, that potentially can be in conflict because they may seek to abrogate two independent rights.
I want to make two points about that. The first point is: that is a matter for the courts, for the law, to interpret. While they might, ipso facto, both be lawful acts, obviously when that decision goes to a court of law and they're found to be in conflict then the court will decide which one is in fact consistent with the law and which one is not. Once again, this very simple, clear limitation around acting within the law will be found to provide the adequate limitation to the issue that Senator Rice raised. The other point is that it is very important to note that, while this is not an intention to implement the ICCPR, one thing that I think hasn't come up enough in this debate is that the United Nations Commission on Human Rights has been asked to rule on this issue about whether or not the right to refuse or provide marriage services for homosexual couples is, in fact, a breach of the ICCPR. In the Joslin case, which is the precedent in this place, they made it very clear that, in light of the scope of the right to marry under article 23.2, which is the right of a man and a woman of marriageable age to marry:
… the Committee cannot find that by mere refusal to provide for marriage between homosexual couples, the State party has violated the rights of the authors under articles 16, 17, 23—
and various paragraphs that I won't read out. That is already the finding. So this idea that the religious freedoms in article 18.1 are somehow in conflict with the other changes we're making here tonight is not a provision or a fact in international law as it stands at this juncture.
So that conflict will not arise. This is a very clear, very simple confirmation that we do live in a country where people can freely practise their religion as long as it's done in a lawful manner. It's something that we should all be able to unite behind and then support the broader changes to the Marriage Act in a way that unifies this country, not divides it.