Tuesday, 28 November 2017
Marriage Amendment (Definition and Religious Freedoms) Bill 2017; In Committee
I move government amendment (2) on sheet 8333 revised standing in my name and the name of Senator Canavan:
(2) Schedule 1, item 20, page 10 (line 11) to page 11 (line 10), omit the item, substitute:
20 Section 47
Repeal the section, substitute:
47 Ministers of religion and marriage celebrants may refuse to solemnise marriages
Ministers of religion
(1) A minister of religionmay refuse to solemnise a marriage despite anything in this Part.
(2) In particular, nothing in this Part prevents a minister of religion from:
(a) making it a condition of solemnising a marriage that:
(i) notice of the intended marriage is given to the minister earlier than this Act requires; or
(ii) additional requirements to those provided by this Act are complied with; and
(b) refusing to solemnise the marriage if the condition is not observed.
(3) A minister of religion may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:
(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister's religious body or religious organisation;
(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;
(c) the minister's religious beliefs do not allow the minister to solemnise the marriage.
(4) A marriage celebrant may refuse to solemnise a marriage, despite anything in this Part, if the marriage celebrant's religious or conscientious beliefs do not allow the marriage celebrant to solemnise the marriage.
Grounds for refusal not limited by this section
(5) This section does not limit the grounds on which a minister of religion or a marriage celebrant may refuse to solemnise a marriage.
The effect of this amendment is to amend section 47 of the Marriage Act to extend the right of conscientious exemption, in relation to marriage ceremonies, to civil celebrants. The Marriage Act, by section 47, has always provided that ministers of religion have an absolute right not to perform a ceremony of marriage. They don't have to show any grounds; they merely are entitled to decline. The reason that provision exists is so that, for example, a minister of religion could not be compelled to conduct a ceremony of marriage in circumstances which would violate the tenets or teachings of their church. I gave the example in the earlier debate about the Catholic Church, which will not remarry divorced people. No Catholic priest, for example, could be compelled to conduct a ceremony of marriage involving a divorced person.
That exemption has never extended to civil celebrants, and, I must say, I've never been able to understand why. This would be a good measure, irrespective of whether it arose in the context of a debate about extending the definition of marriage to include same-sex couples or not. The proposition that I advance is very simply this: if we accept that there should be a right of conscientious exemption to conducting a marriage ceremony, then that should be the end of the matter, and the reason, the ground of the conscientious exemption, should not matter. Whether it is theologically based or doctrinally based in the teachings of a church should not matter. To suggest otherwise is to suggest that the only ground on which conscience is exercisable is a religious ground, but that is a preposterous proposition. There are many people—about a quarter of people or more, according to the latest census in this country—who profess no religious belief at all. Are we to say that, because you don't profess a religious belief, you therefore are not a person who should ever be able to claim to have a conscientious objection to something, that religious belief is the only ground of conscience? That's ridiculous.
There are other areas of the law in which a ground of conscientious objection is well recognised. One of the most important is in the Defence Act, which recognises a ground of conscientious objection in wartime, not on the basis of a person's religious beliefs but on the basis of their conscientious beliefs, so that if, for example, a person is conscientiously a committed pacifist, not on religious grounds but because conscientiously that is their world view, then the conscientious ground of objection may extend to them.
So the proposition I put to the Senate is this: if we accept, as the law does, that it is right and just to protect people from being forced to act against their conscience, and if we accept, as the Marriage Act does, that ministers of religion should be protected from conducting a ceremony of marriage against their conscience because it violates their religious beliefs, then on what possible basis can we say in relation to a non-religious person that their conscience should be able to be violated? That is why I advanced this amendment. It's not really an amendment directed to same-sex marriage at all; it's an amendment about the circumstances in which those who celebrate marriage services, whether religious services or secular services, ought to have the integrity of their conscience respected.