Senate debates

Tuesday, 28 November 2017


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

10:24 pm

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

Let me just reply for a moment to a number of the contributions that have been made. Might I start by picking up with an observation—a very wise observation, if I may say so—that came from Senator Canavan during his first contribution. What Senator Canavan reminded us of was that our modern notions of freedom and liberty and, in particular, freedom of speech—if I may expand a little, Senator Canavan, on what you had to say on freedom of the press—and all of the other values around freedom of expression in fact arise from the defence of religious liberty.

If you read deeply the history of the 17th century, you will remember—and I know you, Mr Temporary Chairman Leyonhjelm, as a libertarian are very well versed in these matters—that John Locke's essay on toleration, one of the great defences of human freedom, was a defence of religious tolerance. You will remember that in the 17th century, and before that the 16th century, those who fled from the religious wars in Europe to found a new society in the new world on the east coast of North America fled in defence of religious liberty. You would know that one of the greatest men of the Enlightenment—arguably the greatest man of the Enlightenment—Thomas Jefferson, chose to have inscribed on his tombstone the words, 'Here was buried Thomas Jefferson, author of the Declaration of American Independence and of the Statute of Virginia for religious freedom', because Thomas Jefferson regarded being the author of the Virginia statute for religious freedom as important as having been the author of the declaration of independence, so highly did that great man value religious liberty. So when we're talking about religious liberty, we're not having a narrow discussion. We are talking about the defence of values that are central to our Enlightenment notions of what a liberal democracy is.

Now, let me correct a couple of errors that came from Senator Wong and others who have spoken in this debate. The effect of this amendment is not to transport into Senator Smith's bill any right from the International Covenant on Civil and Political Rights—not at all. That is not what it says and that is not its effect. Its effect is a limiting effect only to make clear that nothing in Senator Smith's bill, were it to be enacted, 'limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching'. That is not a right-conferring provision. It is a limiting provision.

Secondly, it was observed by Senator Rice and others that, somehow, article 18.1 of the ICCPR is being cherrypicked. It is only in the very narrow sense that words of description—that is, 'to manifest his or her religion or belief in worship, observance, practice and teaching'—have been adopted because they are a convenient and well-recognised description of the breadth of that conduct of those behaviours, which are regarded as constituting the expression or manifestation of a religious belief; that's all.

Article 18.1 is, of course, not the only provision of article 18 of the ICCPR which deals with religious freedom. The reason that it was adopted in this amendment, far from cherrypicking, was to do the very opposite: to take the most generic possible description of religious freedom—that description which is the least controversial and easiest to accept and agree with—so as to invite the Senate to subscribe at the lowest threshold of adherence to that value. I ask the question rhetorically: if you don't believe in the right of a person, in a lawful manner, to manifest their religion or belief in worship, observance, practice and teaching, what sort of religious freedom do you believe in, if any at all?


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