Senate debates

Wednesday, 15 February 2017


Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill; Report

5:05 pm

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

I present the report of the Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill 2016 together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

The definition of marriage is an issue that is deeply held by many people in Australia and, accordingly, the government's position has been and continues to be to allow the people of Australia to have their say via plebiscite on whether that definition should change. It is a matter of record that the government's legislation to enable a plebiscite was defeated in the Senate last year, in November, but it still remains the government's policy position. As part of the preparatory works for the plebiscite, the Attorney-General released an exposure draft for comment, which formed the basis of a vote by the Labor, Greens and NXT parties to create this select committee to examine the exposure draft, with a particular reference to the requirement for, or efficacy of, religious freedoms.

I think it is important to note that evidence before the committee confirmed that, under jurisprudence in international law Australia is not required to make a change to the definition of marriage, but nor is there an impediment to it doing so. The United Nations Human Rights Committee has made it clear that, as long as the nation has legislation to both recognise and protect same-sex relationships, as Australia does, then the right to freedom from discrimination and equality before the law is fulfilled. That is because, under article 23 of the International Covenant on Civil and Political Rights, marriage is defined as being between a man and woman, and the European Court of Human Rights has made a number of judgements in recent years supporting this approach.

What I am coming to here is that the context of this inquiry, therefore, was not that a change is inevitable, but, if a future parliament chose to legislate for a change in the definition of marriage, it would potentially enliven the right to the freedom of thought, conscience and religion in a range of areas. Evidence to the committee demonstrated that there are substantial matters of human rights law to be dealt with that extend well beyond the Marriage Act itself. So, if Australia is to remain a plural and tolerant society where different views are valued and legal, legislators must recognise that this change will require careful, simultaneous consideration of a wide range of specialist areas of law, as opposed to the common perception that it involves changing just a few words in one act of parliament. People on both sides of politics who support a change have made comments in the past to the extent that it is a quick and simple change. But what this inquiry has demonstrated very clearly is that there are actually quite extensive areas that need to be considered. And if Australia is to remain that plural, diverse community, where different views are protected, then those changes need to occur in a coordinated manner, not with some lagging others, particularly given the record in Australia of previous attempts to align or reform laws such as anti-discrimination laws across the nation.

As chair, I wish to record my appreciation for the collegiate manner in which members of the committee and witnesses have approached this inquiry. The members of the committee and the witnesses come from a wide range of lived experiences and positions on this topic. They have different understandings of how the institution of marriage should be defined. Yet, despite that, I am pleased to report to the Senate and to the Australian public at large that this has been a good example of where legislatures can work constructively together to explore the differences and to place on the public record a report that identifies these fundamental rights that must be carefully considered, respected and balanced in any future legislation that a parliament may approve.

So, having provided that broad contextual statement, I would like to touch on some of the key points of the report. The report is split into two large areas. The first deals with the exposure draft itself and particular provisions in that but fairly quickly then moves into the third chapter, which deals with the issue of human rights, which is where much of the discussion occurred in terms of which rights apply and how they intersect and where they intersect and how they should be balanced. That issue of balance is important, and the committee was particularly seized by the comment of Professor Patrick Parkinson, who indicated that, on this topic, balance does not mean that one right is crushed under the weight of another. In fact, that lines up with the international jurisprudence and guidance on this issue that says that nation-states should lean towards supporting the right, and any limitation must be subject to legitimate purposes and be reasonable, and the least amount of impact that can be used.

Australia has signed up to seven core United Nations treaties. In general, those treaties show that any limitation must be prescribed by law in pursuit of a legitimate objective and be rationally connected to its stated objective and be proportionate in the way to achieve that objective. The rights we are talking about here are outlined in article 23 of the International Covenant on Civil and Political Rights, the ICCP; articles 2 and 26, the right to nondiscrimination; and article 18, which is the right to freedom of thought and religion and conscience, which is split into two parts, one being to hold it and one being to manifest it.

As I mentioned in my opening comments, there is international jurisprudence that says that Australia has no obligation to change our current definition of marriage, because under international law we do not offend any human rights law as long as we provide an alternative recognition for same-sex relationships. That position has been challenged by a number of people, who claim that the case of Joslin, being 17 years old, is now outdated. But, given that there has been no subsequent judgement by the Human Rights Committee and that the average in terms of judicial authorities citied by courts is over 18 years, then the proposition that something that is 17 years old and has not been superseded should be ignored is hard to sustain, particularly given that the European Court of Human Rights has in recent years had four judgements that go to very much the same outcome.

There has been a lot of discussion on how to balance the rights. I would encourage people to read the report, because all the committee members basically come from different lived experiences and perspectives, and we have managed to provide a committee report that everyone has signed up to—there are no dissenting reports— because these are the issues that we hold need to be debated carefully and considered carefully by any government that moves ahead. But there are areas—for example, whether freedom of religion should be treated as an exemption or whether it should actually be a protected right, and whether it applies just to organisations, as is the case with much of our antidiscrimination law currently, or whether, as our obligation under the ICCPR clearly indicates, it applies to individuals. The question then is: how do we make sure that we allow people to live without discrimination but, at the same time, allow people to exercise their individual freedom of religion, conscience and belief? Some of the arguments that go to that focus around whether discrimination is solely on the basis of the protected attribute or whether it is in conjunction with, in the case of marriage, a union of two people who may have that protected attribute. I think that is an important distinction for parliament to consider when it debates this in future, because we have had cases put to the committee where individuals have demonstrated over years of practice of, for example, running a business, that they do not discriminate solely on the basis of a protected attribute. In fact, some had friendships and longstanding client-business relationships with people who were same-sex attracted, but when it came to the institution of marriage, they chose to say, 'We prefer not to provide a service.' That was a step too far for some people, but it is indicative of the kind of deep issue that any future government would need to grapple with should a bill pass in this area.

Again, people who came to this do not necessarily agree. I am a supporter of traditional marriage and I would like the definition to stay as it is, but this is an important piece of work because, if the parliament ever chooses to go down the path of changing, this is the scope of issues that we will need to carefully consider in order to keep Australia a diverse and plural society.

5:16 pm

Photo of Louise PrattLouise Pratt (WA, Australian Labor Party, Shadow Parliamentary Secretary for the Environment, Climate Change and Water) Share this | | Hansard source

Today, in the tabling of this report, we see a significant step forward in the path to marriage equality in our country. It has been wonderful to work across the parliament with my colleague Senator Kitching and senators from the Liberal Party, the Greens and the crossbench—I give my thanks especially to the chair, Senator Fawcett—to find consensus on the details of marriage laws. It has been a pleasure to work through these issues with you in a collegial manner, even when we have differing views.

The work of our committee demonstrates that it is not difficult to create laws that uphold both religious freedom and the freedom to marry. The work of the committee shows that we can make progress on marriage equality in this parliament without compromising the rights of those who hold different views about marriage. We can, for example, extend access to civil marriage to all adult couples, while allowing religious ministers and religious celebrants to only perform marriages in accordance with their own doctrines and beliefs.

These issues are personally important to me. For myself, I would like the right to be married. Please do not ask me about my plans to get married because I cannot yet make them until this parliament addresses those laws. But I recognise that the beliefs and aspirations of Australians are deeply held. As the report shows, people in the LGBTI community who want to get married do not want to exercise these rights at the expense of other people's freedoms. On the day we make promises to love our partner in sickness and in health, we want to be surrounded by the people who respect and support the commitment we are making. We know and understand that people of faith feel the same, including many GLBTI people of faith.

I know that my own beliefs about marriage are deeply personal and the last thing I want to do is impose my views on others who take a different view about its definition. To do so would be a great disservice to its importance and to the couples, the communities of faith and the GLBTI community. I know gay and lesbian couples and trans and intersex people excluded from the Marriage Act around the country feel the same. I, and thousands of GLBTI Australians want the right to marry. We also understand that Australians of faith want to uphold marriage in accordance with their own doctrines and beliefs. As this report shows, that is not difficult to do. I commend the report to the Senate.

5:20 pm

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | | Hansard source

Can I thank Senator Rice for the courtesy of allowing me to speak ahead of her. I know she was a member of the committee.

It is with great pleasure that I rise to speak to this report. The road to marriage equality has been a long one. It was some 13 years ago that the Marriage Act was amended to explicitly exclude non-heterosexual couples. Since then, the debate has been hard fought—a fact that would come as no surprise to all senators.

For those of us who fight for equality, it is a deeply personal debate. It is deeply personal because the law excluding us from the institution of marriage is a clear statement about how our relationships are regarded—a clear statement that our relationships are regarded as lesser than those of our heterosexual brothers and sisters. It is also a clear statement that, despite all the progress in Australian society, we have a long way to go in achieving equality. On the other side of the debate, whilst I do not agree with the position of those who have fought against marriage equality, there is no doubt that their views are strongly held.

And so, with strong and deeply held views on both sides of the marriage equality debate, it is no surprise that this debate has, unfortunately, so often descended into a partisan, acrimonious debate. It is a truth of which no political party in this place is innocent. Not too long ago, I said in this place that momentum for change continues to build and the forces of change will not go away. Certainly, we have seen those forces working to win the hearts and minds of Australians. Most Australians no longer ask why; they ask why not.

Support for marriage equality does not require political courage. It requires members of this place to do what they were elected to do, and do what the overwhelming majority of Australians want: to put aside partisanship, to work together, to compromise and, above all, to come on to the floor of this parliament and vote. The example of this select committee and its establishment is one we have to look at. Led by Liberal Senator Fawcett, it is a committee that includes members from the coalition, Labor, the Greens and the Nick Xenophon Team—a multiparty committee, established to work to achieve common ground in the interests of progressing the debate on marriage equality, to discuss and interrogate competing rights and freedoms: the right to marry, the right to religious freedom. And the result is a historic consensus report on marriage equality legislation.

This committee, made up of members of parties from all corners of this parliament, has reached a historic agreement on how we can move forward and achieve marriage equality. And we ought pause to consider the enormity of that achievement. In a debate so often mired in partisanship, mired in acrimony—a debate characterised by finger-pointing—we have a spirit of cooperation and agreement around this report. The parliament should follow the example of the Fawcett committee.

The committee reached agreement on several difficult issues, including whether ministers of religion should be permitted by law to act on their beliefs should they decline to marry same-sex couples, whether there should be a separate category of 'religious marriage celebrant' and whether civil celebrants ought be required to uphold the law if marriage equality proceeds. The report also seeks to ensure that exemptions for religious organisations in relation to same-sex weddings should be precisely defined. There are and will be parts of the report that I am sure I will not personally agree with, and there will be parts with which I do agree, but I am certain others in this place will not. Surely that is the definition of compromise.

This report is a historic step. This committee has demonstrated that this parliament can work together, that we can put aside partisanship, that we can balance competing views and competing rights and freedoms and achieve a just and sensible outcome. And I do want to congratulate Senator Fawcett, the chair of the committee, and Senator Pratt, Senator Kakoschke-Moore, Senator Kitching, Senator Paterson, Senator Rice, Senator Smith and Senator Williams for their work on this and the way in which they have approached their task. The report represents a significant and important moment in this debate.

The clouds of partisanship have parted. Let's take this moment and use it well, because we must now, together, take the next steps, to work together, to compromise, to end this debate and to achieve what is the will of the overwhelming majority of the Australian people.

5:25 pm

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

Being part of the Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill has been satisfying, rewarding and demanding. And it has been a refreshing experience to be part of a committee that has worked collaboratively and has been determined to reach a consensus position, and I really do want to commend my fellow senators on the committee who were so open to working together, particularly the chair, Senator Fawcett.

The committee heard from people from across the political spectrum on their views about marriage. We became highly informed about the differing views towards marriage equality and how they could potentially be accommodated. Marriage equality is an issue that has become politicised and polarised in Australian society. Despite this, polls consistently show that around two-thirds of Australians want to see the definition of marriage broadened to enable two people who love each other and want to make a permanent commitment to each other to marry, regardless of their sex, sexual orientation or gender identity.

The Greens recognise that despite this majority there are deeply held, primarily religious, concerns amongst other Australians, who sincerely believe that marriage can take place only between a man and a woman. In essence, the work of our committee was to explore whether we could bridge that gap between those who see marriage as a matter of equal rights for all and the portion of the community who have that firm religious belief. And I think we did. We have reached a consensus view, which is outlined in this report, that shows that we can protect religious freedoms and finally legislate for marriage equality.

I want to outline the areas I think are most significant where the committee has made some important consensus recommendations. The first is concerning the use of inclusive language. The committee supported the use of 'two people' or 'two adults' as the appropriate definition to broaden access to marriage for all Australian adults regardless of sex, sexuality or gender identity. We recommended that any future legislation to amend the Marriage Act should simply be titled the 'Marriage Amendment Bill'.

We found that there is broad agreement for ministers of religion to have a right to refuse to solemnise a marriage that is not in accordance with their religion, and the Greens believe that the committee's findings lead to a very clear position that the proposed section 47 of the exposure draft in fact reduces the religious freedom for ministers of religion compared with the existing section 47 of the Marriage Act, which allows ministers the broadest grounds to refuse to solemnise a marriage.

We found that the proposed section 47A of the exposure draft—that marriage celebrants should be able to discriminate against same-sex couples—would continue to single out and allow discrimination against LGBTIQ people by any celebrant. Importantly, the committee has proposed that, instead of allowing blanket discrimination, a better way forward is to create a class of independent religious celebrants so that those celebrants who wish to refuse to solemnise same-sex marriages on religious grounds would be able to do so. This would then enable a clear distinction between those celebrants with religious beliefs and civil celebrants who conduct secular marriages on behalf of the state and who would not be able to discriminate. The Greens fully support and endorse these proposals.

A key issue addressed by the committee was the proposed new section 47B of the exposure draft that stated that a 'religious body or a religious organisation' should have the right to refuse to provide facilities, goods or services for or 'reasonably incidental to' same-sex marriages. Regardless of the views as to whether this was appropriate or not, the committee recognised that section 37 of the Sex Discrimination Act already provides an exemption for religious bodies and organisations. As such, further exemptions are not needed.

The committee thoroughly considered the international human rights context of the issue of equal marriage. We found that there have been no international human rights decisions that oblige Australia to legislate for same sex marriage, but also, and perhaps more significantly, that there are no legal impediments to doing so. It is notable that the only UN Human Rights Committee considerations and findings on equal marriage, Joslin v New Zealand, was in 1999 and, despite finding that New Zealand was under no legal obligation to legislate for equal marriage, nonetheless New Zealand did so in 2013—just the other side of the ditch, and so similar to us—so, come on Australia! The Greens believe that Australia should reflect the views of the majority of the Australian population and act to end discrimination of LGBTIQ Australians and legislate for marriage equality as over 20 other nations have done.

The committee spent a lot of effort considering how to best balance the rights of non-discrimination for lesbian, gay, bisexual, transgender, intersex and queer Australians and the protection of religious freedoms. We did not come to a definitive position on whether there were any grounds for discrimination on religious grounds by commercial providers of goods and services—for example, florists, photographers and wedding-cake bakers. What the committee did find, however, was that these issues went beyond marriage and intersected with our anti-discrimination laws. The Greens believe that any further consideration of the balance between religious beliefs and the right to not be discriminated against should be addressed in the context of our broader anti-discrimination laws, not through the Marriage Act. We further believe very strongly that our existing anti-discrimination laws are already sufficiently robust so that legislating for marriage equality can happen now and it does not need to wait for any review or reconsideration of these laws.

We also know that there are massively greater numbers of florists, photographers and bakers who would be thrilled by legislation for equal marriage rather than being challenged by it. That said, we are supportive of reviewing our anti-discrimination laws to consider strengthening current protections for religious freedom.

The proposal to be able to discriminate on conscientious grounds was probably the most controversial aspect of the exposure draft. We noted that conscientious belief to allow discrimination against a class of persons would be unprecedented under Australian law. It is worth quoting the committee view that:

… the Committee would be disinclined to disturb decades of anti-discrimination law and practice in Australia.

I particularly noted the Australian Human Rights Centre's view that:

The idea that a personal moral view could be used to treat someone unfairly because of a particular attribute strikes at the very heart of the rationale for our discrimination laws to begin with, which is all about ensuring equal treatment regardless of particular personal attributes. Introducing a justification for discrimination on the basis of a personal moral view is giving a blank cheque to discriminate.

We believe the evidence presented to the committee strongly supports a position to reject the inclusion of 'conscientious belief' in any legislation for marriage equality.

In conclusion, this process has given me hope. By working together, we have shown a path towards ending the discrimination. When I first spoke in the Senate, I looked at my partner Penny and said: 'We are proud of our status as a same sex couple who have been legally married in Australia, and I am resolute that all couples should be able to share this right. The time for marriage equality in Australia has come.' I think of all the lesbian, gay, bisexual, transgender, intersex and queer people I have talked to since that moment—of the people who have found love and who will find love soon enough. To them I say: have hope. You will be able to show your love before the law. It might be overdue, but it is coming.

Today we have taken the next step towards equality. We have shown that the parliament can work together and that we can do this. Now it is time for us to do our job and have a free vote right here in the parliament. By continuing to work together, we can catch up with the rest of the world on equal marriage and show that love is love.

5:34 pm

Photo of Dean SmithDean Smith (WA, Liberal Party) Share this | | Hansard source

I liken my journey on the issue of marriage equality to that of many, many Australians. I started out unconvinced. I could not understand the arguments and the passion that many people had for the cause, but over the course of four and a half years now I have travelled a great distance, as the great bulk of Australians have.

This report today is important for a number of reasons. Of course, as we have heard, it is important because there is a consensus report. Of all the reports that have come to the parliament on this issue of marriage previously, this is the first that comes with a consensus position. This is the first that does not litigate the arguments for and against—they have been well litigated—but points to how we might give effect to this important reform. It is also powerful because it has demonstrated to the country—and, indeed, to the whole parliament—and to those in our community who have strong interests in this debate about marriage that parliament, and indeed the Senate, can demonstrate the necessary mature approach and the necessary collaboration, putting partisanship aside, to discuss and move forward on what is a very important issue.

It does identify areas of commonality and, of course, it does identify issues of competing concerns, particularly around the issue of anti-discrimination and religious expression, but, importantly, these are not new issues—they have not fallen out of the sky. They have been the focus of debate and discussion in other facets of our law. Importantly, as I said, this report now talks about how, and not if. The areas of contestability have been narrowed. Where there are issues, they are now clear and the position of people prominent in our community—prominent on both sides of the debate—have been put in one place for people to peruse. As I said, these issues are not new. They are not unknown to us. In fact, large parts of existing Australian law already provide a strong, clear and tested approach for balancing these issues. Importantly, as the report highlights, there are matters that parliament can and should resolve and, I am confident, will resolve. There is nothing to fear from changing the definition of marriage to one that gives every Australian the opportunity to share in this tried and tested institution.

This year, next month in fact, marks the passage of the Marriage Bill 1961 through the House of Representatives. It is worth reminding ourselves that, when it was introduced to introduce uniform marriage laws in Australia, it was contested. But it is also important to remember that, since then, it has been reformed by parliament on no fewer than 20 occasions.

Let me just share with the Senate a brief summary of the issues that have been canvassed in the report. Time won't allow me to go into them in any great detail. The summary of issues requiring careful consideration have been identified as follows: the definition of marriage; the exemptions for ministers of religion; the exemptions for marriage celebrants; the issue of exemptions for a religious body or organisation; international jurisprudence on the introduction of same-sex marriage; the issue of goods and services; the right to refuse on the grounds of conscientious belief; and, importantly, a broader protection for the right to freedom of conscience and religion. These issues have been canvassed in other jurisdictions around the world already, and much reassurance can be taken from the experience of those jurisdictions. It is worth remembering that Canada, the United Kingdom and New Zealand have already legislated for marriage in 2005, 2013 and 2015 respectively. Their experiences, I would argue, show again that there is nothing fear; indeed, there is nothing controversial.

Let me just briefly read from the report with regard to a number of popular issues or popular points of contention. On the issue of goods and services, I draw people to paragraph 3.78. I will read it into the Hansard. It says on the issue of goods and services:

… it should be noted that the Australian Parliament has previously determined the ability of religious organisations to discriminate in the provision of goods and services (including hiring of facilities for weddings or marriage related services such as catering) to discriminate where this discrimination would accord with the doctrines, tenets or beliefs of their religious order or would be necessary to avoid injury to the susceptibilities of adherents to their religion.

And importantly—

The amendments to the Sex Discrimination Act 1984 … that enshrined this position were passed with support from the Labor Government and Coalition … led by Tony Abbott.

So we have an experience in our country where partisanship can be put aside, where the parliament can be its better self and come to an agreement about how these issues can be advanced.

Let me go briefly to the issue of religious freedom, which I personally think is a very important one. At section 3.129 the report states:

The Human Rights Law Centre were also strongly supportive about ensuring that religious freedom should be better protected in law—

The report goes on to quote the Human Rights Law Centre:

We are also very happy for the provision around religious freedom to be framed in a positive way. Religious freedom should be protected in law. Indeed, we are on record in a number of inquiries supporting the addition of religious belief to protections under federal anti-discrimination law.

That is important, because not only has the Senate this afternoon come to a consensus view but in the community people with different attitudes to the issue of marriage have united around what are the important issues. Indeed, on religious freedom, I would argue there is broad support in the community for the proper treatment of that issue.

The idea that the institution of marriage should not be shared with others does not make sense. There has been one other significant contribution to the marriage debate in the last six months, and that is the contribution of none other than Paul Ritchie, former Prime Minister Tony Abbott's speechwriter. Again, let me read into the Hansard what Paul Ritchie said in his book titled Faith, love and Australia: the conservative case for same-sex marriage. He says: 'Marriage in the words of the columnist David Brooks makes us better than we deserve to be. Our lives are always better when they are shared and they are more meaningful when others are at their centre. In life's dark times we are strengthened and in the good times our joys are multiplied. Surely they are joys that should be shared by all.'

Let me just make two other points. I want to reflect briefly on what I think is the misguided view that there are electoral consequences to dealing with the issue of marriage. I want to remind the Senate that the Conservative government in the United Kingdom legislated for same-sex marriage in 2013. Two years later, the Conservative government was re-elected with a substantially increased vote, achieving the first Conservative majority government in 23 years. Let me add to that. In New Zealand, the conservative National Party government led by John Key legislated for same sex-marriage in 2013. In the following year, his government was easily re-elected. But, more importantly, let me just reflect on this point. Even those who have previously been prominent opponents of same-sex marriage have indicated that the opportunity to see changed laws in practice has led them to reverse their position—most notably, the new New Zealand Prime Minister, Bill English, who opposed same sex-marriage in New Zealand. He noted:

I'd probably vote differently now on the gay marriage issue. I don't think that gay marriage is a threat to anyone else's marriage.

Finally, there is Nigel Adams. He is not known us. He is a member of the House of Commons. Just this month he said to the House of Commons:

I thought at the time what I was doing was right but having now reflected and seen how that Act has made such a positive difference for thousands of couples around the country, I deeply regret that decision.

He went on to say:

… if I had the opportunity again, I’d vote differently. I want to apologise.

This is a very, very fraught issue because it goes to the core of people's identities.

But to go back to where I started: the Senate has lived up to and exceeded expectations. I congratulate my Senate colleague Senator Fawcett for his very, very careful, considered stewardship of the committee. I congratulate and thank all senators who made their time available to listen to the views of others and bring this consensus report to the Senate.

5:44 pm

Photo of Kimberley KitchingKimberley Kitching (Victoria, Australian Labor Party) Share this | | Hansard source

Thank you, Acting Deputy President Bernardi.

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. … It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

That quote is part of the judgement of Justice Kennedy of the Supreme Court of the United States in the Obergefell v Hodges (2015) decision. This decision required the states and territories of the United States of America to legalise same-sex marriage. I have now read the judgement, but you can read the story of this case as told by the petitioner, James Obergefell, in his book, Love Wins. I would recommend this book, as it tells the story that the most human and the best part of all of us yearns to hear—that is, that we can love and be loved.

Last week, many politicians, leaders of the armed services, public servants and parishioners attended St Christopher's Cathedral in Forrest for the ecumenical service to commemorate the commencement of the parliament for 2017. The reading given by the Leader of the Opposition was a very well-known reading from Corinthians. I had just finished reading James Obergefell's book, and I was struck by the similarity of the sentiments expressed by Mr Obergefell, by Justice Kennedy of Supreme Court and by the passage from Corinthians—I think many would know it—which ends:

And now faith, hope and love abide, these three; and the greatest of these is love.

I think many Australians and indeed many in the GLBTIQ community have been on a journey. Many Australians will always believe that marriage is only between a man and a women. Of course, there have been many twists and turns on this path. As Shakespeare recognised:

The course of true love never did run smooth.

For example, in the 1970s there were some on the extreme left of politics, including some student organisations, who regarded marriage as prostitution and an institution that should be outlawed—nay, criminalised. Some might say the change in this view of marriage from that view to the view that there should be the right to marry for all is a win for those who believe in the institution of marriage. Often times the conservative side of politics, it seems to me, does not always live by conservative values at all.

The committee also spent many hours considering the rights of people and what happens when those rights do clash. It has been put to me that not every Senate committee is so collegiate and so pleasant. At the moment, I do not believe this can be so. I would like to thank the chair, Senator Fawcett. Senator Fawcett has been unfailingly fair and has been an all-round fantastic chair, so I would like to thank him particularly. I would also like to thank Senator Pratt, who was the deputy chair, and senators Paterson, Smith, Rice and Kakoschke-Moore. I would also like to thank my family and friends and people to whom I reached out to solicit their views on this issue, which ranged through everyone from conservative commentators to Supreme Court justices to taxi drivers to all people in between.

This committee worked through some difficult conversations about the balancing of rights—and this has been spoken about by other senators—acknowledging and never forgetting that we live in a diverse and tolerant society where we allow people to believe and advocate in same-sex marriage and to believe in traditional marriage. This committee was determined to acknowledge both sides of the debate, and I think the report reflects that. It is important to note that in our society we must allow people to express their views, and it is even more important—vital—that people in our society have the right to hold many beliefs. I say that because there was discussion about whether some of the exemptions should be given, and I think the report reflects a balanced view on that.

I think we would all accept that rights come with responsibilities. This debate is often framed in terms of rights, and some of the previous senators have explored those. I want to turn, though, to the other side of coin—that is, the responsibilities that come with rights. If we accept that committed, loving relationships strengthen our society then gay and lesbian marriages entered into will also strengthen our society. There was a time when 'till death do us part' meant exactly that. It also means that people celebrate the better times and work through the harder times, and I think that this makes us all better human beings and allows us to live fuller lives.

I want to end with a quote from Justice Kennedy in the Obergefell case again. He said:

Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

This consensus report that the committee has tabled and delivered today, I think, reflects that we can now go forward, examine marriage and legislate for marriage so that all Australians may enjoy that institution.

5:51 pm

Photo of Skye Kakoschke-MooreSkye Kakoschke-Moore (SA, Nick Xenophon Team) Share this | | Hansard source

Although I have been in this place for only a relatively short space of time, I suspect it is a rare occasion when a Senate or select committee report is tabled with this degree of consensus among the committee's members. I suspect it is even rarer when a report relates to an issue which has been so divisive in both the parliament and the general public. So at the outset I want to acknowledge the incredible work of my parliamentary colleagues in reaching consensus on the terms of this report and the issues it has identified as needing careful consideration as they relate to legislating for marriage equality.

In considering the exposure draft of the Marriage Amendment (Same-Sex Marriage) Bill, the committee focused on key provisions, including the nature and effect of proposed exemptions for ministers of religion and the nature and effect of the proposed amendments on the Sex Discrimination Act. It also considered potential amendments to improve the effect of the bill and the likelihood of it achieving the support of the Senate.

The Nick Xenophon Team's position on marriage equality has been clear for some time. Our support for legislation that enables same-sex couples to marry was never going to waver or be in doubt, regardless of the findings of this committee. However, this inquiry was an important opportunity to give due consideration to the form the legislation we believe should be introduced, should take. And because the Nick Xenophon Team supports same-sex marriage, subject to exemptions for churches and religious bodies, it was an opportunity to hear from these and other stakeholders.

Based on the submissions and evidence presented to the committee, I note that there is broad support for ministers of religion to have the right to refuse to solemnise a marriage that is not in accordance with their religion. However, the report acknowledged protections afforded within section 47 of the Marriage Act and the inconsistencies between proposed exemptions in the exposure draft and exemptions in the Sex Discrimination Act. It concluded that the intersection of these laws is a complex matter that requires further expert consideration beyond the ambit of the exposure draft.

With respect to exemptions for a religious body or organisation the committee acknowledged the range of views on whether such bodies and organisations should have the right to refuse to provide facilities, goods or services for, or reasonably incidental to, same-sex marriages. The committee suggests that some of these broad terms should be defined and that 'reasonably incidental to' needs to connect to the provision of goods or services to a marriage ceremony.

Whether same-sex couples are allowed to marry in Australia is not a decision which directly affects me or my Nick Xenophon Team colleagues. I was able to marry my husband, Simon, and we recently celebrated our 10-year wedding anniversary. But to LGBTIQ members of our community it is one of the greatest steps towards equality this country can take and does directly affect their lives and their relationships.

I hope that, just like the committee was able to come together on this report, we can come together as parliamentarians and get on with the job of making laws for this country so that all couples can be afforded the same rights in marriage.

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

The question is that the motion moved by Senator Fawcett be agreed to.

Question agreed to.