Wednesday, 29 November 2017
Marriage Amendment (Definition and Religious Freedoms) Bill 2017; In Committee
by leave—I move amendments (1) to (4), (6) to (7) and (9) to (12) on sheet 8299:
(1) Clause 1, page 1 (lines 6 and 7), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment Act 2017".
(2) Schedule 1, item 1, page 4 (lines 12 to 14), omit all the words from and including "their religion" to the end of paragraph 2A(b), substitute "their religion or the views of their religious community; and".
(3) Schedule 1, page 5 (after line 17), after item 5, insert:
5A Section 6
Omit "This", substitute "(1) This".
5B At the end of section 6
(2) This Act is not intended to exclude or limit the operation of a State or Territory law dealing with anti-discrimination, to the extent that that law is capable of operating concurrently with this Act.
(4) Schedule 1, item 8, page 6 (line 21), omit "(1) The", substitute "The".
(6) Schedule 1, item 20, page 11 (lines 6 and 7), omit paragraph 47(3) (c).
(7) Schedule 1, item 21, page 11 (lines 15 to 17), omit subsection 47A(1), substitute:
Refusing to solemnise a marriage on the basis of religious beliefs
(1) A religious marriage celebrant may refuse to solemnise a marriage despite anything in this Part if:
(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the celebrant's religious body or religious organisation; or
(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
(9) Schedule 1, item 48, page 14 (lines 29 and 30), omit paragraph 81(2) (c).
(10) Schedule 1, item 63, page 17 (line 10), omit "47(3) (a), (b) or (c)", substitute "47(3) (a) or (b)".
(11) Schedule 1, item 63, page 17 (line 18), omit "the circumstances mentioned in subsection 47A(1)", substitute "any of the circumstances mentioned in paragraph 47A(1) (a) or (b)".
(12) Schedule 1, item 63, page 17 (line 23), omit "81(2) (a), (b) or (c)", substitute "81(2) (a) or (b)".
The Greens also oppose schedule 1 in the following terms:
(5) Schedule 1, item 8, page 7 (lines 1 to 17), subsection 39DD(2) (including the subheading) to be opposed.
(8) Schedule 1, item 21, page 11 (line 21) to page 12 (line 11), section 47B to be opposed.
I will talk to each of these amendments and then hopefully we'll be able to move through this fairly quickly so we can achieve the historic outcome that we are looking forward to achieving today.
The first ones that I want to talk about are about the issue that we have heard a lot about over the last two days, about civil celebrants and the role of civil celebrants. Our amendment here seeks to amend this legislation so that civil celebrants, including existing civil celebrants, would not be able to discriminate. I want to start by going back to our Senate inquiry and our exploration of the role of civil celebrants. What we found out during that Senate inquiry was that our current marriage law is very complex and mixed up. Particularly, the role of civil celebrants mixes up two quite separate groups of people. There are in that category the people that you think of as the ordinary civil celebrants that you go to in order to solemnise your marriage, but the category also includes ministers of religion from what are called the non-recognised or independent religions—they are not listed as recognised religions. These people are all sort of lumped in currently in the 'civil celebrant' category.
One of the really important recommendations we developed as part of the Senate inquiry earlier this year was to say, 'Let us create this category called "religious marriage celebrants".' It was primarily for these independent ministers of religion, so that they could be identified as being separate from the ordinary individual civil celebrants and so that people would know that these religious marriage celebrants would be solemnising marriages on a religious basis. As I said, that category was created primarily so that people who are independent ministers, ministers of non-recognised religions, could be religious marriage celebrants.
That then left the people whom you think of when you think of individual marriage celebrants. What we considered was: what should be their role? If those civil celebrants have particular religious beliefs or conscientious beliefs, particularly over the solemnising of equal marriages, should they have the right to decide that they don't want to do that? After hearing lots of evidence from across the spectrum—we heard from religious organisations, from academics, from LGBTI advocates and from mental health advocates about what the impacts of discrimination were—we came down, as a group, with a consensus recommendation that we felt that civil celebrants should have to uphold the law of the land and should have to marry any couple who are capable of being married who come to them and ask to be married. In our consensus report, we said:
The committee considers that such celebrants perform a function on behalf of the state and should be required to uphold Commonwealth law (including anti-discrimination laws).
That, in a nutshell, is what this amendment seeks to do. It says: no ifs, no buts; civil celebrants should have to uphold the law, including our antidiscrimination law.
In practice, it removes from this bill what has been called the 'transitional' provision or the 'grandfathered' provision. What we have been told is that about three per cent of existing civil celebrants thought they had advised their civil celebrants associations that if marriage equality became a reality they would have difficulty solemnising same-sex marriages because of their religious beliefs. In the findings of our Senate inquiry, we thought: 'Okay, it's only a small number. If it is a situation that just those existing civil celebrants are allowed to discriminate, maybe that is the compromise position.' So those existing civil celebrants would be grandfathered and be able to identified as religious marriage celebrants. This was a compromise which we agreed to at the time on the basis that it was grandfathered and it was only going to be a small number of celebrants.
However, in the time since our Senate inquiry report came out, there has been a lot of discussion about this group of civil celebrants who would then be able to discriminate. In particular over the last two months, since Senator Smith's bill has been made available for people to look at, it has been identified particularly as a concern by many members of the LBGTIQ community and beyond. Importantly, it's because it does go against this principle that, if you are a civil celebrant solemnising marriages according to the law of the land, you should marry anybody who comes before you. You shouldn't be able to discriminate. So for that reason, after hearing from people, we thought: 'Yes, that's reason enough for us to decide that there is a principle at stake here. Civil celebrants shouldn't be able to discriminate.' Even though we've got this three per cent, we thought, 'They are there in their role as civil celebrants, solemnising marriages according to the law of the land, and that's what they need to do.'
There was a second reason why we were keen to put this amendment and it goes to the next lot of things I'm talking about—that is, this legislation says that those civil celebrants who opt to be identified as religious marriage celebrants would be able to choose to not solemnise a marriage on the basis of their individual religious beliefs. That, too, is a very substantial shift in our antidiscrimination law. Currently, when it comes to religion and antidiscrimination law, we give exemptions for religious organisations, and we give exemptions for religious beliefs that are based on the tenets, doctrines and beliefs of a religion, not on an individual's personal religious belief.
That goes to the second lot of amendments I am moving, which is on the issue of personal religious belief and whether people should be able to discriminate regardless of who they are—in fact, regardless of whether they are even a minister on the basis of personal religious belief. Putting this provision in makes a very significant difference from what our current antidiscrimination law allows. It means that, rather than having something that is on the basis of a religion, you are making a decision just on the basis of a person's personal beliefs. You are at the top of a very slippery slope there. We've already had the debate here, 'Well, if you're going to allow discrimination on the basis of a person's personal religious belief, what's the difference between that and a person's personal conscientious belief?' I agree, because where does the line get drawn? What is a religious belief? What's a conscientious belief? But if you're going to allow discrimination on the basis of someone's religious or conscientious belief, it basically allows anybody to say: 'Well, it's my conscientious belief that I don't want to marry you for whatever reason I want. That's my personal conscientious belief.' It is really a very substantial and very significant change to our antidiscrimination law. So it would be a new development, a new principle, that we don't think is warranted. It certainly isn't warranted before we go through the process, as I am hoping that we as a parliament do, of looking at the issue of religion both through the Ruddock process started up by the Prime Minister and through what I hope will be the process of developing our antidiscrimination laws into a much more comprehensive and coherent set of laws governed by a charter of rights.
The third group of amendments we're moving today involve the provision of goods and services. In this bill before the chamber, as it stands, there's a restatement of the exemptions for religious groups that are laid out in the Sex Discrimination Act. These exemptions give religious organisations a right of refusal in the provision of goods and services according to the doctrines, tenets and beliefs of their religion or the religious susceptibilities of their adherents. We don't think it is necessary to restate these provisions in the Sex Discrimination Act in this bill, because it has been pointed out that including these provisions in the marriage equality bill is explicitly targeting LGBTIQ marriages for discrimination. We don't need to do that. The provisions are already there in the Sex Discrimination Act; we don't need to put up in lights in the Marriage Act that, hey, marriages between same-sex people or gender diverse people are likely to be explicitly targeted for discrimination. It doesn't make a substantial change but it is a really important principle that we don't want to be flagging that LGBTIQ people are going to be explicitly discriminated against. So, it takes away that symbolic indicator of the intent to discriminate against LGBTIQ couples, it removes unnecessary duplication in the bill and it would potentially remove any future adverse legal implications of the section, because there has been some concern that by restating it in the bill there would be further discrimination acts beyond those already in the Sex Discrimination Act.
In the next amendment we propose to introduce an objects clause into the legislation to say how this legislation would interact with state and territory laws, because we've noted some concerns that have been raised about the consequences of this bill passing and whether it is going to impact on existing state and territory laws. We wanted to make sure that there wouldn't be any adverse impacts—that the state and territory laws as they currently stand would continue to have the power they had. This objects clause states that this changed law doesn't intend to limit or exclude the operation of a state or territory law dealing with antidiscrimination.
The final amendment in this package of amendments is a change to the title. The bill's current title refers to marriage equality and religious freedoms, but that is not what we're actually talking about today. This bill is coming from a huge desire in the community for equality—to achieve marriage equality. This bill is about broadening the institution of marriage and allowing same-sex-attracted and gender-diverse couples to get married. It's about marriage. Yes, it includes provisions to deal with religious sensibilities, but fundamentally it's about marriage. So, we're proposing to change the title to make it as simple as possible: it would just be the Marriage Amendment Act 2017. That would be much more appropriate and certainly it would much better reflect the view of the Australian community that what we are legislating for is about equality—marriage equality and LGBTIQ people being able to marry the person they love.