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senate vote 2017-11-28#9

Edited by mackay

on 2017-12-24 17:42:59

Title

  • Bills — Marriage Amendment (Definition and Religious Freedoms) Bill 2017; in Committee
  • Marriage Amendment (Definition and Religious Freedoms) Bill 2017 - in Committee - Civil celebrants' right to refuse

Description

  • <p class="speaker">George Brandis</p>
  • <p>I move government amendment (2) on sheet 8333 revised standing in my name and the name of Senator Canavan:</p>
  • <p class="italic">(2) Schedule 1, item 20, page 10 (line 11) to page 11 (line 10), omit the item, substitute:</p>
  • The majority voted against an [amendment](http://www.openaustralia.org.au/senate/?gid=2017-11-28.216.1) that would have extended the right of "conscientious exemption" to civil celebrants so that they can refuse to solemnise a marriage. It was introduced by Liberal Senator [George Brandis](https://theyvoteforyou.org.au/people/senate/queensland/george_brandis) (Qld) also on behalf of Liberal Senator [Matthew Canavan](https://theyvoteforyou.org.au/people/senate/queensland/matthew_canavan) (Qld).
  • ### Why did some Liberals vote Yes and others No?
  • The Liberal Party 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 Liberal Party 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 class="italic">20 Section 47</p>
  • <p class="italic">Repeal the section, substitute:</p>
  • <p class="italic">47 Ministers of religion and marriage celebrants may refuse to solemnise marriages</p>
  • <p class="italic"> <i>Ministers of religion</i></p>
  • <p class="italic">(1) A minister of religionmay refuse to solemnise a marriage despite anything in this Part.</p>
  • <p class="italic">(2) In particular, nothing in this Part prevents a minister of religion from:</p>
  • <p class="italic">(a) making it a condition of solemnising a marriage that:</p>
  • <p class="italic">(i) notice of the intended marriage is given to the minister earlier than this Act requires; or</p>
  • <p class="italic">(ii) additional requirements to those provided by this Act are complied with; and</p>
  • <p class="italic">(b) refusing to solemnise the marriage if the condition is not observed.</p>
  • <p class="italic">&#160;&#160;(3) A minister of religion may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:</p>
  • <p class="italic">&#160;&#160;(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister's religious body or religious organisation;</p>
  • <p class="italic">&#160;&#160;(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;</p>
  • <p class="italic">&#160;&#160;(c) the minister's religious beliefs do not allow the minister to solemnise the marriage.</p>
  • <p class="italic"> <i>Marriage celebrants</i></p>
  • <p class="italic">&#160;&#160;(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.</p>
  • <p class="italic"> <i>Grounds for refusal not limited by this section</i></p>
  • <p class="italic">&#160;&#160;(5) This section does not limit the grounds on which a minister of religion or a marriage celebrant may refuse to solemnise a marriage.</p>
  • <p>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.</p>
  • <p>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&#8212;about a quarter of people or more, according to the latest census in this country&#8212;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.</p>
  • <p>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.</p>
  • <p>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.</p>
  • <p class="speaker">Louise Pratt</p>
  • <p>Labor is opposing this amendment. These issues were given careful consideration by the select committee and are at the core of the construction of the bill before us. The amendment that Senator Brandis has put forward along with Senator Canavan undermines the purpose of the new category of religious marriage celebrants who have been specifically given the rights to refuse to solemnise marriages on the same basis as ministers of religion where it offends their religious belief, be that of same-sex marriage or any other doctrinal grounds. To proceed with this amendment would undermine the important principle that civil celebrants, as secular representatives of the state, should be bound by antidiscrimination legislation. We very much accept the need to protect religious freedoms, but we will not and should not be extending exemptions from antidiscrimination legislation to secular officers appointed by the state.</p>
  • <p class="speaker">Matthew Canavan</p>
  • <p>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.</p>
  • <p>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.</p>
  • <p>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.</p>
  • <p>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.</p>
  • <p>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&#8212;supported by the Labor Party and the Greens&#8212;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.</p>
  • <p>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&#8212;Emma Alberici on <i>Lateline</i> last night had this misconception&#8212;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.</p>
  • <p>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&#8212;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.</p>
  • <p>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&#8212;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.</p>
  • <p class="speaker">James Paterson</p>
  • <p>I will make another brief contribution on this issue. I rise to support this amendment by Senator Brandis and Senator Canavan. I've spoken previously on why I think a right to conscientious objection is necessary for civil celebrants.</p>
  • <p>I'd like to make one new observation that I haven't made before. It is quite amusing for me as a non-religious person to see other non-religious senators from the left of politics, in the Labor Party and the Greens, stand up and say that people of religious faith have special values that are worth having special protections but that those of us without religious faith, who form values for other reasons, are not worthy of protections and should not have our consciences protected.</p>
  • <p>Senator Brandis gave a very eloquent history of religious liberty earlier, and I share his views on that entirely. But one thing I would add is that the foundation of our belief in religious liberty is freedom of conscience, because we believe it is right for someone to be able to hold their own mind and hold their own view and live their life according to their beliefs, whether they are spiritual or non-spiritual. Spiritual categories of beliefs, religious beliefs, are very important and very worthy of protection, but other beliefs that people sincerely and deeply hold are no less worthy of protection. Yet that is a position that, presumably, many atheists on the other side of the chamber are advancing: that their own beliefs, their own views, are somehow inferior and less worthy of protection than those of people who hold their beliefs based on religious values. I think that is a very strange position for a modern, secular, left-wing political party to take, and yet that is what we've seen here tonight.</p>
  • <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>