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representatives vote 2017-12-07#1
Edited by
mackay staff
on
2018-03-28 11:49:55
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Title
Bills — Marriage Amendment (Definition and Religious Freedoms) Bill 2017; Consideration in Detail- Marriage Amendment (Definition and Religious Freedoms) Bill 2017 - Consideration in Detail - Def of marriage + conscientious protections
Description
<p class="speaker">Adam Bandt</p><p>I seek leave to move the amendments that have been circulated in my name together.</p><p>Leave granted.</p>- The majority voted against [amendments](https://www.openaustralia.org.au/debate/?id=2017-12-07.11.1) introduced by Liberal MP [Michael Sukkar](https://theyvoteforyou.org.au/people/representatives/deakin/michael_sukkar), which means they failed.
- ### What were the amendments?
- Sukkar MP [described his first amendment](https://www.openaustralia.org.au/debate/?id=2017-12-07.11.1) as "symbolic" explaining that:
- > *my proposal ... is that we have a definition of marriage that includes 'the union of two people to the exclusion of all others, voluntarily entered into for life, or the union of a man and a woman to the exclusion of all others, voluntarily entered into for life'. Note that there are two categories there but one definition of marriage, one that appropriately recognises and fulfils our obligation to meet the will of the Australian people in allowing same-sex couples to marry but also ensures that a definition, a belief and an understanding of marriage that has been understood from time immemorial is also contained in that piece of legislation.*
- He [described the second amendment](https://www.openaustralia.org.au/debate/?id=2017-12-07.11.1) as "practical", explaining that it:
- > *essentially, extends the religious and conscientious protections to celebrants. ... [C]elebrants who are not religious ministers should still be able to refuse to solemnise a marriage, consistent with their religious convictions ... I'd say there are lots of people who would have objections for very secular reasons, which have nothing to do with religion, and they should not be forced to conduct ceremonies.*
- ### Why did some Coalition MPs vote Yes and others No?
- The Coalition was split on this issue, with some voting Yes and others voting No. This split within the party is unusual but, given the nature of the subject matter of the vote, the Coalition decided to run this as a free vote, meaning that its members could vote however they chose rather than having to vote along party lines.
- ### What does this bill do?
- This [bill](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/s1099) will allow same-sex couples to marry under Australian law. However, it will also:
- > *enable ministers of religion, religious marriage celebrants, chaplains and bodies established for religious purposes to refuse to solemnise or provide facilities, goods and services for marriages on religious grounds; and make amendments ... to provide that a refusal by a minister of religion, religious marriage celebrant or chaplain to solemnise marriage in prescribed circumstances does not constitute unlawful discrimination.*
- Read more in the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1718a/18bd054).
<p>There are a number of amendments that do a number of things and—</p> <p class="speaker">Tony Smith</p><p>The member for Melbourne needs to now formally move amendments (1) to (12) as circulated.</p> <p class="speaker">Adam Bandt</p><p>I move amendments (1) to (12) as circulated in my name:</p><p class="italic">(1) Clause 1, page 1 (lines 14 and 15), omit "<i>Marriage Amendment (Definition and Religious Freedoms) Act 2017</i>", substitute "<i>Marriage Amendment Act 2017</i>".</p><p class="italic">(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".</p><p class="italic">(3) Schedule 1, page 5 (after line 17), after item 5, insert:</p><p class="italic">5A Section 6</p><p class="italic">Omit "This", substitute "(1) This".</p><p class="italic">5B At the end of section 6</p><p class="italic">Add:</p><p class="italic">(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.</p><p class="italic">(4) Schedule 1, item 8, page 6 (line 21), omit "(1) The", substitute "The".</p><p class="italic">(5) Schedule 1, item 8, page 7 (lines 1 to 17), omit subsection 39DD(2) (including the subheading).</p><p class="italic">(6) Schedule 1, item 20, page 11 (lines 6 and 7), omit paragraph 47(3) (c).</p><p class="italic">(7) Schedule 1, item 21, page 11 (lines 15 to 17), omit subsection 47A(1), substitute:</p><p class="italic"> <i>Refusing to solemnise a marriage on the basis of religious beliefs</i></p><p class="italic">(1) A religious marriage celebrant may refuse to solemnise a marriage despite anything in this Part if:</p><p class="italic">(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the celebrant's religious body or religious organisation; or</p><p class="italic">(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion.</p><p class="italic">(8) Schedule 1, item 21, page 11 (line 21) to page 12 (line 11), omit section 47B.</p><p class="italic">(9) Schedule 1, item 48, page 14 (lines 29 and 30), omit paragraph 81(2) (c).</p><p class="italic">(10) Schedule 1, item 63, page 17 (line 10), omit "47(3) (a), (b) or (c)", substitute "47(3) (a) or (b)".</p><p class="italic">(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)".</p><p class="italic">(12) Schedule 1, item 63, page 17 (line 23), omit "81(2) (a), (b) or (c)", substitute "81(2) (a) or (b)".</p><p>The Greens are moving these amendments—and these are the same amendments as were moved in the Senate—to do a number of things. I'll explain shortly and without detaining the House for too long what each of those things does. I want to make the point that of course, whether or not these amendments are successful, this bill will be supported. This is a bill that has been a long time coming and is something the Greens have campaigned for for a very long time.</p><p>The amendments that have been moved will do several things. They're important not so much for technical reasons but because the principle of this bill, and the principle of the vote of the people in the postal survey that we didn't want to have but that came back with a resounding yes, was to enshrine equality. It was to enshrine equality in our laws. It was not to further entrench discrimination. And, in our mind, there are a number of items that are in this bill that we do support as a compromise bill but that nonetheless contain elements of that compromise that we are worried might potentially open the door for further discrimination in the future.</p><p>The items with respect to civil celebrants would remove the transitional provision that allows civil celebrants who are not ministers of non-recognised religions to become religious marriage celebrants and allows them to then have the ability to refuse to solemnise marriages on the basis of their personal religious beliefs. That is because, in the bill as proposed, the proposed right of refusal for existing celebrants who are laypeople reflects a shift from giving religious organisations exemptions from our antidiscrimination law to giving individuals exemptions based on their personal religious belief.</p><p>We do note that the Coalition of Celebrant Associations say that they only expect that a very small number of people might take up that exemption, but we are worried that there is a distressing precedent that is being set by allowing individuals rather than organisations to now start claiming this question of exemption on the basis of personal religious belief. It sends, we think, the wrong message to LGBTI Australians, and we should not be opening the door to allow individuals to start claiming those kinds of exemptions. You only need to think—if you took it out of the LGBTI context and put it into another context—of someone claiming an exemption on the basis of their personal belief around another attribute to see how this could be a potentially worrying move in the future, should it be expanded.</p><p>The items regarding personal religious belief fall into the same category, and I move those for the same reasons.</p><p>I want to also draw attention to the amendments regarding the title. If I look at the title, I understand, given that it was a compromise bill, why the title of this bill does not reflect the question of equality, but it is disappointing that it doesn't. We're proposing, very simply, a compromise solution that we change it back to 'marriage amendment bill' so that it's not about primarily protecting religious freedoms, which we say don't need to be protected beyond the bills that we've previously introduced in this place because they are already protected in other forms of the law. But we should recognise this for what it is—namely, an amendment to the Marriage Act, and that is its primary purpose.</p><p>With regard to the item concerning interaction with state and territory laws, this is important. In the discussions that took place that led to the compromise bill, which I reiterate we support, very real questions were raised about what this bill might do to those protections that exist in state or territory laws where the state and territory laws have gone further—in particular, one may think about Tasmania—in recognising the removal of discrimination, especially with respect to LGBTI communities. When one considers that with the goods and services question, which I will come to next, one understands, I hope, the import of the door that we are potentially opening.</p><p>The amendment with respect to goods and services should be removed. There are already exemptions in the Sex Discrimination Act that allow religious organisations the right of refusal in respect of goods and services. We do not support those exemptions, have campaigned for some time and will continue to campaign for the removal of those exemptions. <i>(Time expired)</i></p> <p class="speaker">Tony Smith</p><p>The member for Melbourne has the call.</p> <p class="speaker">Adam Bandt</p><p>For the benefit of the House, I won't speak for much longer. It is not right that religious organisations are able to claim exemptions from the Sex Discrimination Act that other organisations don't enjoy, and we've seen the hardship that that has led to. It has led to people in many instances losing their jobs and being discriminated against, and we do not understand why, in 21st century Australia, such exemptions continue to exist. What worries us about picking up those exemptions and putting them again in the Marriage Act is that it opens the door, we fear, for, in the future, organisations or commercial entities attached to organisations that might be one or two steps removed—they might be owned by a church or by a church-like organisation or associated with a church-like organisation or potentially even an individual—to say: 'Hang on, there must have been a new and expanded protection for me, otherwise they wouldn't have put it in the Marriage Act. Let me claim that exemption and now let me claim the right not to provide a service to you in connection with your marriage.' That is very concerning because, if you looks at the US, you can see the path the people who have opposed equal marriage in the first place want to take next—that is, one of litigation—where they will continue to try and wind back the protections that are enshrined in this bill. We're very, very concerned that, by putting something in this bill that does not need to be there, we might open the door for future litigation. I hope I'm wrong. I hope that, when the courts look at this, they say, 'There's nothing in here that isn't already in existing legislation; it gives you no new rights.' I accept that that's what the member who is moving the bill will say is the case—that it's simply a restating. I hope that I'm proved wrong.</p><p>I want to place on the record today that these provisions should not be in this bill and it might be necessary in the future to come back and take them out, if we find that they're being abused. If we find that they're working against the intent of this bill and being used to undermine the freedoms and equality that are granted by this bill, then we might need to come back and remove them. I understand that these amendments may not get up and I understand that many people will be voting against me on these amendments, not because they necessarily disagree with the spirit of them but because they're backing in the compromise. I accept that as a position. It's not the position I take but it's a reasonable position to take. I hope what flows from that is that, in the future, if we find out that the provisions in the bill are working against the LGBTI community in a way that we've seen overseas, we can have a sensible discussion about revisiting it and potentially taking these provisions out of the legislation. With that, I commend the amendments to the House.</p> <p class="speaker">Trent Zimmerman</p><p>I thank the member for moving these amendments on behalf of the Australian Greens. I want to indicate that I will be opposing this amendment, as I will other amendments being considered during the committee stage of this debate. I want to start by saying that we have a bill that has been endorsed by the Senate. I think there is a strong desire to have this bill considered and resolved before Christmas. The last thing I want to see out of this process today is some kind of Mexican stand-off with the Senate that potentially threatens or delays that.</p><p>I wanted to comment on the merits of the amendment that has been moved in two respects. Firstly, the bill that we have, as the honourable member has recognised, is essentially a compromise that was developed through the Senate select committee process. There are matters in that report and in this bill that did involve some give and take by all parties involved in that process. I particularly want to comment in relation to the proposal that the right of individual ministers to refuse to solemnise marriages should be removed from the bill. I want to argue against that on principle.</p><p>An important part of our bill is recognising certain aspects of religious freedom, particularly in relation to the solemnisation of marriages. That includes recognising that religious organisations and their practitioners should have the right to act in accordance with the tenets of their faith and with their own individual religious beliefs. This amendment would potentially remove the right of a minister of any faith to exercise their own religious beliefs in relation to marriage. If we accept that principle in relation to marriages conducted according to religious doctrine—there's a right to religious freedom—that has to extend beyond an organisation and to an individual practitioner. It is entirely possible you could have situation where a particular church—the Uniting Church of Australia to name one as an example—changes its position in relation to same-sex marriage and allows ministers to conduct same-sex marriages, but an individual minister does not agree or concur with that view and wants to exercise their own faith.</p><p>The second thing I wanted to comment on was in relation to celebrants. This amendment effectively removes the capacity of existing celebrants to exempt themselves in the same way that ministers can. This is one of the areas that was a compromise. I start from the position that celebrants are effectively acting as agents of the Commonwealth and have an obligation to uphold Commonwealth law. In an ideal world, I accept the point the Australian Greens have made. However, what I would say is that, in the spirit of compromise, we created a pathway for existing celebrants to register themselves as religious marriage celebrants and be afforded the same protections as ministers. That is a compromise, but it does reflect the fact that existing celebrants became celebrants when the law was different, whereas under this bill future celebrants will have to uphold the law of the land. For these reasons, I urge the chamber to vote against this amendment.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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