Tuesday, 28 November 2017
Marriage Amendment (Definition and Religious Freedoms) Bill 2017; In Committee
I once again am honoured to move these amendments with Senator Brandis. I point out up front that the construction here of a conscientious objection for celebrants mirrors that which Senator Brandis outlined or made public in the exposure draft for a Marriage Act change earlier in the year. That was also the subject of a Senate committee report. The changes that are outlined in the Senator Smith bill, which are different to in regard to the protections provided to marriage celebrants, did not go through a similar examination process and departed from that exposure draft from earlier this year.
I first want to make a couple of points in response to Senator Pratt's contribution. I fear that the Labor Party are now going back from where they were 25 years ago on extending conscientious objections to all Australians not just on religious grounds. It is a misinterpretation, wilful or otherwise, to suggest that it's only those of religious views who may have a conscientious view about the definition of marriage. There are, of course, some who have that view from a religious viewpoint. As Senator Brandis outlined, their views are protected, or somewhat protected, in the Smith bill creating a category of religious marriage celebrants.
There are other Australians who may not have a religious point of view, but who may have a conscientious point of view that marriage should be between a man and a woman. I repeat this from earlier in the debate: even those of us who do have a religious view, we often, and I put myself in this category, have arguments about our views. My view is that the definition of marriage shouldn't change. I don't base that on religious views alone, and I certainly don't prosecute it on religious grounds. I prosecute it in public policy debates and with secular, widespread reasons about why the existing institution has been, and is, a good foundation for family units and for our civil society.
Notwithstanding that, as I said earlier I accept that definition will now change, but if we do recognise that those of a religious view and with a traditional view of marriage deserve protection as celebrants, why wouldn't we extend that to those of a non-religious view as well? We have this very strange situation where in fact it's only those who subscribe to a religious viewpoint who are offered protection. Under the Smith bill construction, those who are not religious do not get exactly the same protections as those who are religious. It's a very strange, almost non-modern form of discrimination.
As I was outlining earlier, this goes against what the Labor Party did 25 years ago with the conscientious objection to military service legislation, and Senator Brandis has outlined that. Until 1992, you could only have a conscientious objection on religious grounds. If you were a Quaker or your religious view was pacifistic, you could exempt yourself from military service. In 1992, the Australian Labor Party, rightfully in my view, extended that right to those non-religious pacifists with a conscientious objection to military service. That was the right construction. But what the Senator Smith bill does—supported by the Labor Party and the Greens—is narrow those conscientious objection grounds back to only religious views, not to non-religious views. That is why we should accept these amendments and ensure that if we are to have some form of conscientious objection, which this bill establishes, it is as wide-reaching and fair as possible for all Australians, including those who do not have a religious view themselves.
I also want to point out and make clear to the Senate and to those who may be listening that there has been a misconception—Emma Alberici on Lateline last night had this misconception—that somehow all celebrants are protected under the Smith bill. They are not. It is only a grandfathering protection. In section 39DD of the Smith bill, it is only those civil celebrants who are currently registered who have the possibility of protecting themselves and not being forced to solemnise a marriage against their will. They have only 90 days from the passing of this bill to register themselves under this transitional provision. If they miss that 90-day threshold, they do not have protection. If someone decides to become a celebrant after this bill commences, they will not have that protection. Again, it doesn't seem to be equitable or fair. If you are going to have this protection, why is it only restricted to those who are currently civil celebrants? If there's a moral or ethical imperative here to provide this level of protection, why would it only be restricted to those who are currently civil celebrants and not to those who may register in the future? These are ethical protections. These are not changes to tax law where we may seek to grandfather people who've made investments in a certain way. You either have a moral or conscientious right to a protection or you do not; it's not something that changes depending on whether the month is March, April or May or the day is Wednesday, Thursday or Friday. These should be things that are central to what we want to decide.
If those on the other side want to decide that there should be no conscientious objections at all, in my view that should have been their consistent position—not to have these protections at all. Indeed, the majority of the bills that have come before this place to change the Marriage Act to include same-sex marriage have had none of these protections, and they've required all civil celebrants, including existing civil celebrants, not to have a conscientious objection.
But this bill does not do that. This bill does include a conscientious objection, but only in a grandfathered way, which does not make sense. If you believe that this is an area that deserves some degree of thought and protection, then it should be extended to all—those in the future as well as those in the past. It should be extended to those of a religious viewpoint and those of a non-religious viewpoint. That's why these amendments are a more elegant and consistent way to handle this issue and to provide a conscientious objection to all celebrants and to all Australians who want to participate in marriage but who also want to do so in a way consistent with their conscientious views.