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senate vote 2017-11-29#4
Edited by
mackay staff
on
2017-12-23 17:46:35
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Title
Bills — Marriage Amendment (Definition and Religious Freedoms) Bill 2017; in Committee- Marriage Amendment (Definition and Religious Freedoms) Bill 2017 - in Committee - No obligation to solemnise marriage
Description
<p class="speaker">Cory Bernardi</p><p><i>(In division)</i> This is about upholding the standing orders. You've just made a ruling that those who call a division need to remain in the chamber. That's what you've just said. I'm telling you that the voices that called for the division are not here in the chamber. So, does the division stand or not?</p> <p class="speaker">Penny Wong</p>- The majority voted against an [amendment](http://www.openaustralia.org.au/senate/?id=2017-11-29.4.2) introduced by Senator [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm), which means the amendment failed.
- ### Amendment text
- > *(2) Schedule 1 , page 11 (line 20) , after item 47A , insert:*
- > *47AA Authorised celebrants (other than State and Territory officers) not bound to solemnise marriages etc.*
- > *Subject to subsection 39(4), nothing in this Part:*
- >> *(a) imposes an obligation on an authorised celebrant to solemnise any marriage*
- ### 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>I rise on a point of order. Standing order 100(2) states very clearly:</p><p class="italic">A senator calling for a division shall not leave the chamber until the division has taken place.</p><p>I didn't see who called the division, but Senator Bernardi was in the chair. If that senator has left, I'd ask you to consider, and perhaps take advice, as to whether the division should proceed.</p><p>The CHAIR: Senator Leyonhjelm, on the same point of order?</p> <p class="speaker">David Leyonhjelm</p><p>On the point of order: Senator Bernardi was in the chair, at the other end of the chamber from me. There were several voices calling for it, including Senator Anning's.</p><p>The CHAIR: Thank you. I believe that we have met the two required voices, Senator Bernardi.</p><p> () (): I move item 2 on sheet 8321 revised, standing in my name:</p><p class="italic">(2) Schedule 1, page 11 (line 20), after item 47A, insert:</p><p class="italic">47AA Authorised celebrants (other than State and Territory officers) not bound to solemnise marriages etc.</p><p class="italic">Subject to subsection 39(4), nothing in this Part:</p><p class="italic">(a) imposes an obligation on an authorised celebrant to solemnise any marriage, or</p><p class="italic">(b) prevents such an authorised celebrant from making it a condition of his or her solemnising a marriage that:</p><p class="italic">  (i) longer notice of intention to marry than that required by this Act is given; or</p><p class="italic">  (ii) requirements additional to those provided by this Act are observed.</p><p class="italic"> <i>[authorised celebrants (other than State and Territory officers)]</i></p><p>This amendment extends the freedom to refuse to solemnise a marriage to all civil celebrants who are not state government employees. This similar amendment has been moved a couple of times previously. I know that senators have voted against that, but, because mine is the best way of achieving this, I know you are waiting to vote for my amendment. This is a freedom currently enjoyed by ministers of religion. Senator Smith's bill before us today only proposes to extend this freedom to religious celebrants.</p><p>Let me outline two arguments for my amendment that should appeal to left-leaning supporters of legalising same-sex marriage. Firstly, religion should not be afforded a privileged place in a secular state. As I have said previously on Senator Hanson's version of this amendment, people who are not religious still have convictions and they still have freedom of conscience, as much as people who are religious. People who are not religious should not be treated as second-class citizens.</p><p>Secondly, if we fail to extend the freedom to refuse to solemnise a marriage to all non-government celebrants, we will be left in a situation where celebrants who only want to solemnise straight marriages can do so under the cover of religion but celebrants who only want to solemnise same-sex marriages will not be able to do this as there is no religious cover for such a decision. We will be hurting the gay community. For left-leaning senators still planning to vote against my amendment, even though voting in this way would represent an unequal treatment between religious and non-religious celebrants, please do not use the dubious excuse that the Constitution requires special treatment of religious celebrants. The Marriage Act need not have any reference to religion, just as occupational licensing laws have no special category for religious architects, religious financial planners or religious mechanics. In fact, such an approach would have a sound constitutional basis, given that section 116 states that no religious test shall be required as a qualification for any office or public trust under the Commonwealth.</p><p>If certain senators do not want any celebrant recognised by the state to be able to discriminate, they should have the courage to put forward amendments that would make this the law. The substance of my amendment aligns with the substance of One Nation's amendment which we previously considered and is similar to the Attorney-General's amendment of yesterday which we also considered. I didn't mind which one got up, but, since neither of those two have got up so far, I am proceeding with mine.</p> <p class="speaker">Penny Wong</p><p>The Labor Party will not be supporting this amendment, consistent with our position in relation to other similar amendments. The bill before the chamber already permits ministers of religion and the new category of religious marriage celebrant not to be required to solemnise a same-sex marriage if it offends their religious beliefs. We have accepted this as a reasonable protection of religious freedom. The amendment goes further than the protection that was considered by the select committee and included in the legislation. In fact, my recollection—although others might have a more direct recollection—is that this proposal was expressly rejected by the Senate committee.</p> <p class="speaker">George Brandis</p><p>This is intended, as I understand it, to ensure that the protection in section 47 of the Marriage Act currently covering religious celebrants is extended to all celebrants. That was the substance and effect of the second amendment that I moved last night. For the reasons I explained last night, which were also explained by Senator Leyonhjelm in his contribution a few moments ago, I agree with the principle. If it is right in law to allow a conscientious exemption for celebrants on religious grounds, then I do not believe that it is right to deny a conscientious exemption for other celebrants, whose conscientious objection may be on grounds other than religious faith. In a country where more than a quarter of people say that they do not have a religious faith, it seems to me, frankly, absurd to say we should respect the conscience of the three-quarters of the population who are religious but not respect the conscience of the quarter or so of the population who do not profess a religious faith.</p><p>As I say—and I expanded at greater length on the point last night and I won't delay the Senate by doing so again—I agree with what Senator Leyonhjelm is trying to achieve here, but for one thing. Senator Leyonhjelm, by proposed paragraph (b)(ii) of your amendment, nothing would prevent an authorised celebrant from making it a condition of his or her solemnising a marriage that requirements additional to those provided by this act are observed. Unfortunately, that requirement is expressed in unlimited terms. If your proposed amendment were to operate according to its terms, nothing could prevent, for example, a civil celebrant from making it a condition for solemnising a marriage that the couple who wish to be married acquired a good or service from a company associated with the celebrant, for example. Now, I don't think that's your intention, Senator Leyonhjelm, from what I've heard you say, but that's the effect of your amendment. In other words, it goes beyond conscientious grounds of objection. If proposed paragraph (b)(ii) were not part of your amendment, I could agree with it and I would agree with it, but because of the open-ended and unlimited nature of proposed paragraph (b)(ii) of your proposed new section, I cannot do so.</p> <p class="speaker">Janet Rice</p><p>The Greens also won't be supporting these amendments, and it's on two grounds. One is the principle that civil celebrants who are performing the solemnising of marriages according to the laws of the state should not be able to discriminate against LGBTIQ people. They are there to solemnise weddings according to the laws of the land. There is no justification for those civil celebrants to be able to discriminate. That's the first reason. The second one is on being able to discriminate on the basis of conscientious as well as religious beliefs. We will go into that a bit further when we debate the amendments that I am going to propose shortly.</p><p>In one way I have some level of agreement with Senator Leyonhjelm. We don't think people should be able to discriminate on the basis of their individual beliefs. Our current antidiscrimination law allows for exemptions based on religious organisations and on the tenets and doctrines of a religion, not on an individual's religious beliefs. So we absolutely don't think it would be appropriate to extend that—not just to be able to discriminate on the basis of religious beliefs but to extend it on the basis of people's conscientious beliefs. To be able to do that would be expanding our antidiscrimination law exponentially to allow the grounds on which people could discriminate against other people.</p> <p class="speaker">Eric Abetz</p><p>Senator Leyonhjelm's very eloquent appeal to left-wing senators won me over. I can indicate support for his amendment, but might I respectfully suggest, having listened to the Attorney's comments in relation to this, that when the vote is put, if that is necessary, that the amendment be put in two parts? I think that 47AA(a) would cover the field in any event. I would be happy, and I think the Attorney as well, to vote for that, without the need for proposed paragraph (b).</p><p>I take the Attorney's point that requirements additional to those provided by this bill would, for example, mean: I will celebrate your marriage if you use my florist, from whom I get a kickback, and the baker and the reception centre et cetera. So I was thinking of inserting an amendment: 'requirements other than of a commercial nature'. But, on reflecting more, just 'imposes an obligation on an authorised celebrant to solemnise any marriage' is not bound. I think that covers the field, without going into the suggested detail. So that would be my respectful suggestion, unless Senator Leyonhjelm were minded before the vote to seek to amend his amendment (2) by deleting the letter (a) and then proposed paragraph (b) in its entirety.</p> <p class="speaker">Barry O'Sullivan</p><p>In response to the question to the chair, there is only one amendment before the chamber; therefore, it's not possible to separate elements of that amendment. It would require an amendment to the amendment to be put. We can assist you with some language on that, if you would like to do that.</p> <p class="speaker">Eric Abetz</p><p>I was of the view that, if a proposition were before the Senate and there were elements of it where senators would vote in a different way, the question in fact could be split. So could I have some guidance on that?</p><p>The TEMPORARY CHAIR: The question is that amendment (2) be agreed to. It is the question which the chamber will be confronted with. Do you wish to seek to amend the amendment?</p><p>Before we get bogged down in the detail—I know what the question before the chamber is, but I was of the view, rightly or wrongly, that, if there was a proposition being put that had a number of components to it, any senator who might want to vote differently could ask for the question to be split. But all this might be a very academic argument in the event that Senator Leyonhjelm is prepared to delete paragraph (b) of his proposal; one assumes the Senate would give leave to that if he were so minded.</p><p>The TEMPORARY CHAIR: We should hear from Senator Leyonhjelm on that point before we respond to your point. It's not a divisible amendment otherwise.</p> <p class="speaker">David Leyonhjelm</p><p>This section is, I think, applicable already to religious celebrants. I'm mindful that the Catholic Church and other religions—various churches—that place various conditions on those who want to be married in their churches. I think that was just carried across. But it is fairly obvious that Senator Brandis's comments are influential, and I don't feel particularly strongly about retaining section (b). If there is provision in the procedure to delete section (b), as I'm the mover of the amendment, I would be happy to seek leave for my amendment to be amended to delete 47AA(b) and to vote on it accordingly.</p> <p class="speaker">George Brandis</p><p>At the risk of being a pedant, Senator Leyonhjelm, if you do that, you'll want to remove both the colon after the word 'part' on the first line and subparagraph (a), replace the comma after the word 'marriage' on the second line with a full stop and omit the word 'or'.</p><p>The TEMPORARY CHAIR: Thank you, Attorney-General; they're technical changes that will accompany the intent of the amendment.</p> <p class="speaker">David Leyonhjelm</p><p>I note those changes, Senator Brandis, and I trust your judgement on them entirely.</p><p>Leave granted.</p><p>The CHAIR: The question is that Senator Leyonhjelm's amendment (2) on sheet 8321 revised, as amended by leave, be agreed to.</p><p>The committee divided. [11:26]</p><p>(The Chair—Senator Lines)</p>
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