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senate vote 2017-11-29#5

Edited by mackay

on 2017-12-23 17:36:36


  • Bills — Marriage Amendment (Definition and Religious Freedoms) Bill 2017; in Committee
  • Marriage Amendment (Definition and Religious Freedoms) Bill 2017 - in Committee - Discrimination in private sector


  • <p class="speaker">David Leyonhjelm</p>
  • <p>I move amendment (3) on sheet 8321 revised standing in my name:</p>
  • <p class="italic">(3) Schedule 1, Part 2, page 17 (lines 1 to 29), omit the Part, substitute:</p>
  • The majority voted against a [amendment]( introduced by Senator [David Leyonhjelm](, which "*allows, in a limited way, individuals to discriminate in the private sphere*". This means the amendment failed.
  • ### What does this bill do?
  • This [bill](;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](
  • <p class="italic">Part 2&#8212;Amendment of the Sex Discrimination Act 1984</p>
  • <p class="italic"> <i>Sex Discrimination Act 1984</i></p>
  • <p class="italic">63 After section 38</p>
  • <p class="italic">Insert:</p>
  • <p class="italic">38A Marriage</p>
  • <p class="italic">Nothing in Division 1 or 2, other than section 26, renders it unlawful for a person to discriminate against another person on the ground of the other person's sexual orientation, gender identity, intersex status, marital or relationship status in the course of providing, or offering to provide, goods, services or facilities for, or in connection with:</p>
  • <p class="italic">(a) the solemnisation of a marriage under the <i>Marriage Act 1961</i>; or</p>
  • <p class="italic">(b) the preparation for, or celebration of, such a marriage; or</p>
  • <p class="italic">(c) the preparation for, or celebration of, events associated with such a marriage, including:</p>
  • <p class="italic">&#160;&#160;(i) an event announcing or celebrating the engagement of the parties to be married; and</p>
  • <p class="italic">&#160;&#160;(ii) an event celebrating the anniversary of the marriage.</p>
  • <p class="italic"> <i>[allowing non</i> <i>-government discrimination regarding marriage]</i></p>
  • <p>This amendment does three things. First, the amendment preserves the existing exemption from the Sex Discrimination Act for anything done by a person in direct compliance with the Marriage Act 1961&#8212;this is subsection 40(2A) of the Sex Discrimination Act. My amendment does this by opposing Senator Smith's bill's repeal of this existing exemption.</p>
  • <p>Secondly, my amendment rejects the replacement exemption proposed in Senator Smith's bill. The replacement exemption is narrower than the existing exemption. The replacement exemption would only cover refusals to solemnise. The existing exemption covers anything done in direct compliance with the Marriage Act. This includes, for instance, a decision to solemnise a marriage on the condition that a longer notice of intention to marry is given. The replacement exemption would only cover ministers of religion, religious marriage celebrants and chaplains in the Defence Force. The existing exemption covers any person. This could include someone assisting a minister of religion, a religious marriage celebrant or a chaplain in the Defence Force. Senator Smith's bill clearly narrows the exemption from the Sex Discrimination Act. Such a winding back of protections was not in the question that was put to Australian voters. It is not what they voted for. In fact, voters were told there would be no winding back of protections, and whenever an extension of protections has been proposed in this debate it has been voted down on the grounds that this bill should not deal with matters beyond the Marriage Act. If you do not want the existing exemption from the Sex Discrimination Act to be wound back, you need to support my amendment. Currently, there is no other amendment that prevents this winding back of the existing exemption.</p>
  • <p>However, at the outset I mentioned that my amendment does three things. The third thing it does is insert a new, broad exemption from the Sex Discrimination Act that would cover the same things as the existing exemption but go well beyond that. The new exemption would cover discrimination by any person in the course of providing or offering to provide goods, services or facilities for or in connection with a marriage. This covers a wedding as well as events celebrating an engagement or anniversary. This new exemption does not cover section 26 of the Sex Discrimination Act. Section 26 states that:</p>
  • <p class="italic">It is unlawful for a person who performs any function &#8230; under a Commonwealth law or for the purposes of a Commonwealth program &#8230; to discriminate &#8230; on the ground of &#8230; sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding &#8230;</p>
  • <p>As such, my amendment allows people to discriminate in the private sphere but does not allow discrimination by the government which represents us all. I do not argue that there are a significant number of bakers or florists who are inclined to refuse to service a same-sex marriage&#8212;indeed, I do not know if there are any&#8212;but it is not the role of the government to dictate to such people who they must do business with. I note also that refusing to service a same-sex marriage would be an odd business decision and may well prompt other consumers to boycott that business, which they're free to do.</p>
  • <p>My amendment may be more relevant to people whose line of work exclusively relates to marriages, such as wedding planners. It could be that people will want to specialise in servicing same-sex marriages. It could even be that the number of people wanting to specialise in servicing same-sex marriages could exceed the number of people wanting to specialise in servicing straight marriages. My amendment does not trample on state rights. If people see issues with state discrimination law, the appropriate forum to address this is the relevant state's parliament. My amendment does not allow discrimination by the Commonwealth. Government represents us all, and the job of public servants is to serve everyone. My amendment allows, in a limited way, individuals to discriminate in the private sphere. This will assist people specialising in servicing same-sex marriages as much as it will assist opponents of same-sex marriage. My amendment is modest, and I commend it to the Senate.</p>
  • <p>The CHAIR: I remind senators, once again, that advisers are not to be on the floor of the Senate.</p>
  • <p class="speaker">George Brandis</p>
  • <p>I will be opposing this amendment in particular because of the third of the observations made by Senator Leyonhjelm, relating to the introduction of a new section 38A into the Sex Discrimination Act. This is the so-called bakers and florists amendment. It seems to me to be, in a sense, almost an academic argument&#8212;like the search for the bunyip, the search for the homophobic florist goes relentlessly and unavailingly on. Honourable senators have heard my position in relation to conscientious objection. For reasons I explained before, I believe that those who officiate in a marriage ceremony, whether they be religious celebrants or civil celebrants, ought to have the benefit of a conscientious objection&#8212;that matter has now been resolved against my view&#8212;but I do not believe that a right of conscientious objection can sensibly go beyond the act of officiating at the ceremony itself.</p>
  • <p>What Senator Leyonhjelm's amendment would essentially say to commercial goods or service providers&#8212;bakers, florists, wedding caterers; anyone from whom a commercial good or service may be purchased&#8212;is that you are free to discriminate against people on the basis of their sexuality and specifically you are free to discriminate against people in relation to the fact that they are entering into a ceremony of same-sex marriage. In my view, there is no justification for extending conscientious objection purely to a commercial relationship. I know, and Senator Abetz and I were discussing this a moment ago, there have been some cases in America where the Supreme Court has held that a commercial relationship may be protected, but that's because of the jurisprudence of the First Amendment. It is nothing to do with Australian law. If you say that any commercial service provider, any vendor of a good, is able to discriminate against people because they are conducting a same-sex marriage, then you are striking at the heart of the very principle that this bill seeks to establish&#8212;that is, the equality of people of the same sex in relation to marriage with people of opposite sex.</p>
  • <p>I respect Senator Leyonhjelm's libertarian principles. This amendment reflects a pure, almost absolutist libertarian point of view which would, taken to its extreme, see the repeal of all antidiscrimination law. Plainly the parliament does not want to do that, and it ought not to do that. In the balancing of rights, the idea that we should not protect categories of people from discrimination is I think an extreme position. We should protect people from discrimination, as the Sex Discrimination Act does, and, given the will of the parliament to amend the law to allow same-sex couples to marry is evident, then there is absolutely no reason, in my view, why antidiscrimination law should not apply to same-sex couples as it does to other protected categories. As I said in a television interview the other day, under the existing law it is unlawful to refuse to sell a good or a service to a person because they are gay, and if it's wrong to refuse to sell a good or service to a person because they are gay then it cannot be right to refuse to sell that same good or service to two people because they are gay. So, Senator Leyonhjelm, I understand where you're coming from. At least there is a certain crystalline purity about Senator Leyonhjelm's absolute positions. But this is not a position I would wish to adopt. It does attack, really, the heart of what the parliament is seeking to achieve here, and for that reason I will be opposing the amendment and I would urge other senators to do likewise.</p>
  • <p class="speaker">Louise Pratt</p>
  • <p>This amendment would wind back hard-fought protections against discrimination, and Australians have voted to prevent discrimination under Australian law in voting for marriage equality. Labor will not be supporting this amendment.</p>
  • <p class="speaker">Pauline Hanson</p>
  • <p>It was very interesting to listen to the comments of the Attorney-General, Senator Brandis, with regard to discrimination: 'We should protect people against discrimination.' Let me take you back to section 51(xxvi) of the Australian Constitution, which says, 'the people of any race for whom it is deemed necessary to make special laws'. This in itself is discrimination, because we do have laws in Australia that state that people of a certain race will get special benefits&#8212;and it is the Aboriginal and Torres Strait Islander people&#8212;in health services, housing, jobs and education. There is a difference, and there is discrimination.</p>
  • <p>When the people of Australia had the vote on this plebiscite, the question was: do you agree with same-sex marriage? The people agreed to it. We are debating this whole issue in this chamber now. Having the plebiscite before we debated this legislation was putting the cart before the horse in the eyes of the Australian people. They had no understanding of the impact it would have on them.</p>
  • <p>What we are asking here is for people not to be discriminated against based on their views and their opinions of what they want to do. If they have a conscientious objection to marrying those of the same sex or a religious obligation due to their beliefs, why is that such an issue? Why can't there be tolerance in this chamber from both sides? The people have decided they are not against same-sex marriage. They have voted for that. But, with this amendment, you are taking away the rights of the Australian people. This is about thought police; this is about control. The sex discrimination laws are in place, but you are not allowing people to have the right of a conscientious vote here, and there is going to be, time and time again, a lot of litigation against these people. So there is discrimination, and it's in our Constitution. It's happening every day in our lives. So don't reflect on it in what is being debated here today. I'm just reflecting that we should have a look at our own Constitution.</p>
  • <p class="speaker">Janet Rice</p>
  • <p>The Greens will be opposing this amendment. This amendment would result in an absolute explosion of discrimination against LGBTI people, and it's exactly the opposite of why we are here. We are here to be debating marriage equality. We are here to be removing discrimination against lesbian, gay, bisexual, transgender, intersex and queer people, not to be introducing amendments and changes to the act that would result in a massive increase in discrimination.</p>
  • <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>