The PRESIDENT (Senator the Hon. Scott Ryan) took the chair at 10:30, read prayers and made an acknowledgement of country.
DOCUMENTS
Tabling
The Clerk: I table documents pursuant to statute, as listed on the Dynamic Red.
Details of the documents also appear at the end of today's Hansard.
COMMITTEES
Meeting
The Clerk: Committees have lodged proposals to meet as follows:
Community Affairs References Committee—private meetings otherwise than in accordance with standing order 33(1) during the sitting of the Senate today, from 11 am and from 5 pm, for the committee’s inquiry into the National Disability Strategy 2010-2020.
Environment and Communications Legislation Committee—public meeting during the sitting of the Senate on Tuesday, 5 December 2017, from 5.30 pm, for the committee’s consideration of the 2017-18 supplementary Budget estimates.
Finance and Public Administration Legislation Committee—public meeting during the sitting of the Senate today, from 3.30 pm, for the committee’s consideration of the 2017-18 supplementary Budget estimates.
Finance and Public Administration References Committee—private briefing during the sitting of the Senate on Thursday, 30 November 2017, from 4.30 pm.
The PRESIDENT (10:31): I remind senators that the question may be put on any proposal at the request of any senator.
BILLS
Marriage Amendment (Definition and Religious Freedoms) Bill 2017
Second Reading
Consideration resumed of the motion:
That this bill be now read a second time.
Senator HANSON (Queensland) (10:31): As I stated last night, this is a very important issue for Australians, and I understand it. We've just had a plebiscite with regard to the same-sex marriage survey and the bill that's before the parliament, the Marriage Amendment (Definition and Religious Freedoms) Bill 2017. What I want to put on record is my concerns and those of many Australians. Yes, we had 61 per cent that voted yes for the survey, yet 39 per cent voted no, and a further 21 per cent did not vote at all or didn't have the opportunity to vote. The whole survey, as I said from the very beginning, I believe should have been a referendum to the people so we defined in our Constitution what we, the people, agree to as being marriage between two people—whether Australians agreed with it being between a man and a woman or it being between those of the same sex.
My concern is that, in time to come, the parliament and its members could at any time change this to include multiple marriages or marriages of people under a certain age, and I don't believe that will be the will of the people. If it were a referendum, it would be enshrined in the Constitution and could not be changed by parliament but only by the people. We see the ever-changing face of our society, where we know that there are multiple marriages in our communities, and yet it is not being addressed.
What concerns me greatly is that the survey reminds me of the referendum that we had in 1967 to do with the Aboriginal people. In that referendum, people thought they were voting to bring the Aboriginal people and Torres Strait Islanders into the census. They were saying 'equality for all Australians'. People voted in that referendum. About 97 per cent of Australians agreed that they should be, because the Aboriginal people were not included in the census, and for many years they were wrongly treated and there was no equality. What happened then was because the people agreed to it. Section 51 of the Constitution stated at the time prior to the referendum that the Commonwealth could make specific laws for any race other than the Aboriginal and Torres Strait Islander people of any state. Now it reads that the Commonwealth can make specific laws for 'any race'.
We put the cart before the horse then, and over the years we have seen our governments bring in laws that actually haven't brought equality for all Australians; we have now made laws that give Aboriginal people more rights than other Australians. I'd say in point of fact that there is a division in Australia; there is reverse racism, because they have special laws that, when their kids go to school, because they're Aboriginal, they can have their tours, their books and their lunches provided. There are special organisations purely for Aboriginals. They can advertise 'Aboriginals only need apply'. They are treated totally differently under the law. People did not vote for that, hence my concerns about this plebiscite.
People say they want equality; they want the right to marry. I have no problem with that and neither do most Australians. If it were to be called a civil ceremony, Australians would not worry about that. In the census in 2011, there were 33,700 gay couples, and I can tell you that not all these gay couples want to get married. We are actually now saying that a large majority of Australians are going to have to be tolerant and go against their beliefs and that our society may change because you pushed for equality in this area. That's all I heard—'love and equality' for people that I believe have a right to be happy and to live their own lives, but it's going to have an impact on the rest of society, and I think we have failed to look at that. We have failed by putting the cart before the horse.
People voted on something; it was an emotional standing—'Yes, people should get married.' But here we are discussing a bill in the parliament on the implications and ramifications it is going to have on our society. People had a right to know about the implications before they voted, but you never did that, and that's why I feel it's wrong. The bill before the parliament says that marriage celebrants can't refuse only on religious grounds. Whoever you are in our society, if you're a marriage celebrant, you should have the right to say no. You should have the right to say, 'No, I'm sorry, because of my beliefs I can't marry a same-sex couple.' Why is it that we have to change and turn around our opinions on this? Why are we being dictated to, again, by the minority? There are many other people out there who, I'm sure, want to marry these couples, but why is it that we could have litigation with people dragged before the courts because of their beliefs? Or maybe a lot of them will throw in their professions because they're in fear of being dragged before the courts.
Another part that I think people haven't thought about is the children. I'm going to have my say now, because I need to look at what impact it is going to have on our society. About 11 per cent of gay couples now have children. Whether they're from in-vitro fertilisation or former heterosexual marriages, the fact is there are children, and there will be an increasing number of children in these relationships. What will we do, as a society, when we get to the stage that these kids are starting to go to school? What will happen when you go to school, the teacher says, 'I want you to draw a picture of your mum and dad or grandma and grandad and your house' and all the rest of it? The kids will be saying, 'What do I do? I don't have a mum,' or 'I don't have a dad.' 'It's Peter and Sam,' or 'It's Elizabeth and Amanda.' They're not known as mum and dad. Are we then going to say, 'Oh well, we can't discriminate against these children, so we must call their parents by their real name?'
Is this the impact it is going to have on our educational system and in our school rooms? What about grandma and grandad? It's all right for this generation but what about the next generation? No longer will you be able to call them grandma or grandad. These kids won't have them.
Have you thought beyond this? These people are pushing for what they want—equality and love. I've got no problems with people being in love and doing what they want to, but why do you have to push this on the majority of the population? A lot of the people voted in the census because they believe in love and they believe that people should be happy together—no problem with it. A lot of these people are parents who have gay children and they only wish to see them happy. But have we really stopped to think about the ramifications this is going to have on our society as a whole?
I will be moving an amendment with regard to celebrants. I believe that everyone has a right to deny service—if they don't want to marry a couple, bake a cake or whatever it is they don't want to do. We cannot restrict people from having an opinion in this country. We have laws in place. We have human rights. We have the Racial Discrimination Act. We have the Sex Discrimination Act. We have those in place. But this is something very important: we cannot shut people down from having an opinion and having a say in this country. If they don't want to do something, they have the right not to, because that is their business and they have a right to say that. There are plenty of other people who will do it. I see this is going to open up a can of worms. You are going to have people who will chase these people down to see what their reaction will be—just purely to litigate and take them through the court system. We are going to have a lot of lawyers and solicitors rubbing their hands together over this.
Another concern that has been raised by people in Australia is about the Safe Schools Program. Why are we pushing this in parts of this country in the school educational program? It is teaching kids about their body parts and everything. They are kids. Let them be children. I have no problem with teaching sexual education, but do it when they are reaching puberty at around 14 or 15. Don't start messing around with the minds of young children in our educational system by pushing your own agenda. I think it's disgraceful. As long as I'm a senator for Queensland I will fight against this happening in our educational system in Queensland, because I believe that people are pushing their own agenda. I think there are many selfish people who are not looking at the overall effect that it's going to have on our society.
I hope that people think clearly about this. I voted no, and I make that quite clear. In this survey, I voted no. I'm very divided about this whole issue and about how I'm going to vote on this bill. But the fact is that I know that 61 per cent of Queenslanders voted yes in this plebiscite. What I'm divided about are the ramifications this is going to have on our society, because I don't believe it has been debated well enough and I don't believe people are well informed about what impact it is going to have. I warn everyone: it will have an impact on our society. When you make your decisions in this parliament it's all right to feel emotional, and everyone wants to embrace and feel good. It's wonderful. But you're asking the rest of society to be tolerant of something that may have such an impact on them and our future generations. I want people to think wisely about the impact this is going to have on our society.
Like I said, I'm very divided about how I'm going to vote on this. Under One Nation—under our principles and objectives—we will have a conscience vote on this, and it is up to every member of the party how they will vote. It is a conscience vote for them. I'm yet to make up my mind on how I'm going to vote. I will listen to the debate, but my view is that I don't believe that we are fully aware of the ramifications this is going to have on our society. I've been getting so many calls through my office from people who are totally against this, although the vote showed differently. But can we truly believe that the vote was conducted fairly? It should have been done as a referendum at the next election. They didn't do that. It was a huge cost of about $100 million to the Australian taxpayer. What I find disgraceful about this whole thing is we have people in this country living on the streets, kids on ice and the problem of not enough jobs—and we're having a debate about the issue of a couple of people being able to get married. There are more important things in this country than worrying about and pushing for this. It's disgraceful.
I don't think you realise that we have farmers and others suiciding in our country. One in 10 people are depressed—and you are worried about same sex and people getting married, about giving a vow to each other. Most members of this place have lost the plot and don't understand what is really important to the Australian people. The people are so sick and tired of hearing about this. Just pass an act and make it a civil ceremony. Deal with the issues that are important to the people. Anyway, that's the choice of the parliament. I've made myself clear and I will be moving an amendment.
Senator KETTER (Queensland) (10:45): I commence my brief contribution on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 by noting in passing that on this highly contentious issue, as has been stated many times, it is possible for well-meaning people of goodwill to disagree and to be found on both sides of the debate. Next, I wish to note that I did not support the government's approach of conducting a postal survey. I always believed that parliament was capable and competent to deal with the issue. My view is that parliamentarians should have a free or conscience vote on any proposed change to the marriage law. Nevertheless, we now know that a majority of Australians support the proposed change to the definition of marriage. I congratulate Australians for marriage equality, on the success of their long-running campaign, and Senator Wong and Senator Pratt for their advocacy. It is apparent that I now find myself in the minority on this issue of same-sex marriage.
In my home state of Queensland, roughly 60 per cent of those who participated in the postal survey support a change to the law. I am one of the 40 per cent. I cannot support a change to the definition of marriage. My reasons are very personal and are informed by my faith. They go to the fact that the family is the fundamental group unit in society and to the uniqueness of the relationship between men and women. However, the Australian people have spoken and I do not intend to take up the time of this chamber reprosecuting the relative merits of the arguments. As I have said, mine is a minority view and I respect the views of the majority. Having said that, let us not forget that this parliament exists to represent the views of all Australians. But just as I respect the right of those MPs who represent electorates which voted no to exercise a contrary vote in accordance with their conscience, I trust that my right to exercise a conscience vote will also be respected.
There will be people listening to my contribution this morning who will be disappointed that I cannot agree with same-sex marriage. Some may misconstrue, from what I've said, that I am dismissive of the views and aspirations of LGBTIQ people. My only response to that is, as those who know me would attest, I have always taken people as I find them. Over my long career as a union official and in my current role, I have always tried to treat people, regardless of their background, with due respect and consideration. Somewhat paradoxically, although I have reservations about the implications of the proposed change to the marriage law, at the same time, I welcome the fact that the result of the postal survey brought such joy and affirmation to those who have felt marginalised.
As we go further into the debate around this bill, it will be important for respect and consideration to continue on all sides if we are to achieve an outcome consistent with the views of the majority of Australians. In his very moving speech introducing this private member's bill, Senator Smith acknowledged the very genuine concerns of some Christians and religious people around Australia that have been expressed during the postal survey and he indicated that he wanted to give voice to them. He went on to state:
This vote is not about—
And must not be about—
replacing one persecuted minority with another or giving one hope to one group while inflicting fear on another group; it must be about advancing the hopes and dreams of all citizens, no matter their sexuality, ethnicity or religion.
This bill is about balancing the changes of the Marriage Act with religious freedom.
I congratulate Senator Smith on the gracious manner in which he commenced the debate on this bill. I trust that the remainder of the debate will be conducted in a manner that brings credit to this chamber and delivers a fair and just outcome.
Senator BURSTON (New South Wales) (10:50): I rise to speak on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017. The Commonwealth of Australia came into existence on 1 January 1901 when Sir John Downer declared:
The Commonwealth of Australia will be, from its first stage, a Christian Commonwealth.
Like Downer, many other leading writers of the Constitution had strong views on the importance of Christianity to the Australian Commonwealth. For instance, Sir Henry Parkes, known as the father of Australia's Federation, believed that Christianity comprised an essential part of Australia's common law. In a column published in The Sydney Morning Herald on 26 August 1885, Sir Henry Parkes stated:
We are pre-eminently a Christian people—as our laws, our whole system of jurisprudence, our Constitution … are based upon and interwoven with our Christian belief.
Similar views were found among drafters of the Constitution bill in 1897. Among those was Edmond Barton, as well as leading federalist and statesman, Alfred Deakin. All of these statements are far from just rhetoric. Indeed, the Christian belief of the Australian framers made its way directly into the preamble of the Australian Constitution. When has it ever been justified under international law, or any other law for that matter, to permit legal disrespect for that which is embraced as being sacred to a considerable proportion of the population? It gives us understanding and conveys the stories of our evolution as a nation, our spirit, our resourcefulness and our unique living landscapes. It is an inheritance that helps define our future and who we are as a nation.
Our Australian cultural heritage is the legacy of physical artefacts and intangible attributes of a society that were inherited from past generations, maintained in the present and bestowed for the benefit of future generations. Safeguarding our intangible heritage includes the protection of our cultural identities—in this regard, the cultural identity of humanity. It is essential that we understand that intangible heritage comprises of, but is not limited to, traditional commemorations, customs, ways of life and beliefs. Heterosexual marriage shapes our cultural heritage, particularly as we see and experience it in the Christian tradition of Australia.
In Australia, heritage law exists at the national level and at each of the state and territory levels. Generally, there are separate laws governing Aboriginal cultural heritage and historical heritage. State laws also allow heritage to be protected through local government regulation such as planning schemes. In New South Wales, a legislative goal is to conserve the state's cultural heritage and promote public awareness of places, objects and features of significance to the state's Aboriginal peoples through the National Parks and Wildlife Act of 1974. The Heritage Act of 1977 in New South Wales also provides for the conservation of environmental heritage items. The principles underlying the acts' main objectives revolve around the recognition, protection and conservation of Aboriginal cultural heritage, in order to protect it from damage and desecration in Australia, which is particularly significant to Aboriginal people in accordance with Aboriginal traditions. The critical expression in this passage is 'to desecrate', which means to disregard a sacred place or treat a thing with disrespect.
To the Christians, same-sex marriage epitomises the desecration of a sacred right and, in many denominations, a sacrament. Marriage is a sacrament which is an outward symbol of fulfilling God's purpose for humanity: to form the building block of society and the family and to reproduce the species. It is also a symbol of the nature of Christ's relationship with his church—a sacred union where a man and a woman become one in the physical consummation of marriage. Why then do our parliaments pass one set of laws protecting intangible cultural heritage of one part of our society and then pass another law which disrespects the cultural beliefs and practices of many others across our nation?
Australia's political and legal systems owe so much to Christianity and it is evident the foundations of the Australian nation and its laws have discernible Christian philosophical roots. Most of the same-sex marriage debate occurs because there are two competing understandings of marriage fighting for dominance in our society—the conjugal view and the revisionist view. These two views of marriage have dramatically different implications for what marriage policy should look like. The view of marriage that informs policy development can have a dramatic impact on the legal and social norms surrounding families and children. Three months ago, when the postal vote process was announced, an Australian Marriage Forum spokesman stated that 'no public vote, no parliament, no court have the authority to repeal nature and change the meaning of marriage'. Marriage is based upon an unchangeable truth that only man and woman can create new life; only man and woman can give a child a mother and a father, a biological identity and ancestry. No other relationship outside of a heterosexual relationship should be legislated as marriage, because marriage is divine and not merely a human institution.
The demand to redefine marriage assumes that marriage is a matter of definition but this is not so, since marriage arises out of a description of a natural order—that is, the facts of human biology and evolution. If human beings were naturally inclined to form homosexual unions then, over time, they would have become extinct. The survival of the human race and hence of the state depends on men and women having children and forming families and not homosexual unions. Water is H2O and not CH3CH2OH, which is ethanol. They are both liquids. We cannot redefine CH3CH2OH as water, since it has a different structure. A union of female and male has a different structure from a homosexual union. The accepted meaning in the Oxford dictionary of the term 'marriage' is 'the legal union of a man and a woman in order to live together and often to have children'. This meaning reflects the historical, cultural and religious understanding of the concept of marriage which confines the relationship to persons of the opposite sex and its associated concern for the protection of children.
Australia has an express provision in its Constitution granting federal parliament power to introduce legislation on the topic of marriage and correlating issues. In light of such provision, an amendment to the federal Marriage Act was enacted in 2004 which defines marriage as a union between one man and one woman to the exclusion of all others. The High Court has repeatedly affirmed that the connotation or meaning of a given word must remain fixed as it was established at the time the law was originally enacted. Under orthodox rules of Australian legal interpretation, the meaning to be given to a term is that which it had at the date of the Constitution—1900. Traditionally speaking, the courts have adopted a method that concentrates primarily on the essential meaning the word had at the date when the law was enacted. John Quick and Robert Garran commented that the intention of the Australian framers was to prevent the federal parliament from expanding its limited and specified powers by simply changing the meaning of any word in the Constitution. At the time of the constitutional enactment, the word 'marriage' meant a union between a man and a woman. They say:
… this would almost certainly have been regarded as an essential part of the connotation, and not merely the denotation, of the word
Indeed, Quick and Garran provide the following meaning to the institution:
Marriage is a relationship originating in contract, but it is something more than a contract. It is what is technically called a status, involving a complex bundle of rights, privileges, obligations, and responsibilities which are determined and annexed to it by law independent of contract.
According to the law of England, a marriage is a union between a man and a woman on the same basis as that on which the institution is recognised throughout Christendom and its essence is that it is a voluntary union, it is for life, it is between one man and one woman and it is to the exclusion of all others. There are many Australians who have sought to retain the definition of traditional marriage as it has been understood for centuries and continue to view marriage as a special union between a man and a woman which allows for the creation and nurture of children. A change in civil law does not change the understanding of the nature of marriage as it is understood in the Christian tradition.
For the LGBTI activists, the same-sex marriage campaign has never been about marriage; it has always been about power—the legal power that comes when same-sex and transgender marriage is enshrined in law. The power that emanates from this can be used a weapon for two specific purposes—namely, to control the education of our children and, secondly, to silence any dissenters. There is absolutely no justification for homosexual marriage in any human rights instrument. It is a legal fancy designed by the decadent West, with no foundation in nature or human culture. The millions of Australians who voted no and who are aware of the consequences of redefining marriage will be vigilant to any attempts by radicals who would impose their views of marriage and sexuality on our children and faith communities.
While we continue to respect the dignity of LGBTI Australians, we must recognise and respect the concerns of more than 4.8 million Australians who oppose a change to the definition of marriage, by putting in place strong conscience and religious freedom protections. These protections must ensure that Australians can continue to express their view on marriage, that faith based schools can continue to teach the traditional understanding of marriage and that organisations can continue to operate in a manner that is consistent with those values.
The expansion of legal rights and protections afforded to same-sex couples in Australia is well developed at both federal and state levels, with the Civil Partnerships Act 2008 and the New South Wales Relationships Register. Legislation now exists in four states and the Australian Capital Territory that provides for the legal recognition of relationships that may include same-sex unions. At the federal level, in 2008 and 2009 there was a wide-ranging suite of reforms to provide equal entitlements and responsibilities for same-sex couples in areas such as social security, veterans entitlements, employment, taxation, superannuation, immigration and workers compensation.
However, despite millions of Australians receiving their postal votes in the mail, there were many who did not receive their forms and so were deprived of their right to participate in this survey. I was one of those deprived Australians, robbed and denied the opportunity to express my democratic right to participate in this survey. I'll further add that my vote would have been no.
The seven highest 'no' votes in New South Wales were all in Western Sydney: 74 per cent in Blaxland, 70 per cent in Watson, 65 per cent in McMahon, 64 per cent in Werriwa, 64 per cent in Fowler, 62 per cent in Parramatta and 59 per cent in Chifley.
It is evident that this government cannot extend the ambit of its own legislative powers by purporting to give marriage a wider meaning than that which the word bears in its constitutional context. Nor can the parliament manufacture legislative powers by the device of deeming something that is not marriage to be marriage, or by constructing a superficial connection between the operation of a law and a marriage which examination discloses to be contrived and illusory.
Perusal of some High Court dicta indicates that the constitutional meaning of 'marriage' in section 51(xxi) is confined to the definition found in Hyde v Hyde and Woodmansee. Hyde v Hyde is a landmark case in the English Court of Probate and Divorce. The case was heard on 20 March 1866, before Lord Penzance, and established the common-law definition of marriage. Lord Penzance found that institutions in foreign countries, including marriage, cannot be considered as valid under English law unless they resemble the equivalent English institution. With respect to marriage, English law could therefore not recognise either polygamy or concubines as marriage. Similarly, he found that cultural traditions of which the court had no knowledge could not form the basis for a court decision. The court dismissed John Hyde's case. The case established the common-law definition of marriage. Lord Penzance pronounced:
I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.
To this end, High Court judges, both past and present, have expressed their personal opinions on the matter. Justice Gerard Brennan, 10th Chief Justice of Australia, for example, relied on the history of the court to communicate that it is:
… beyond the powers of the Commonwealth Parliament to legislate for any other form of marriage besides that encompassed by its traditional definition.
Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (11:04): This morning it is my absolute pleasure to rise and speak on this historic piece of legislation, the Marriage Amendment (Definition and Religious Freedoms) Bill 2017. This follows what I believe was a historic exercise in democracy—the first of its kind in Australia—when the Turnbull coalition government gave effect to the 2016 election promise to give the Australian people a say on changing the law to allow for marriage between adults regardless of gender. I think the Prime Minister deserves acknowledgement for meeting this promise despite an extraordinary effort and attempts to prevent him from doing so. In fact, I'm not sure I've ever before seen such forces arrayed against a government delivering a promise that it took to an election. But prevail we did, as did our trust in the Australian people and their response.
In a country noted, in a great many respects, for its political apathy or indifference, the response of Australians to a voluntary exercise was absolutely emphatic. Some 79.5 per cent—four in every five Australians—returned a response to this postal survey. That, in itself, is an absolutely stunning outcome, and I believe that it delivers a legitimacy to this survey that is absolutely unchallengeable. More than 12.7 million people made their voices heard.
In our home state of South Australia, Acting Deputy President Fawcett, nearly one million people, or 79.7 per cent of eligible people, participated in the Australian marriage survey. However, I think we need to acknowledge that, whilst over 60 per cent of Australians indicated their support for the change in the Marriage Act to enable marriage to be a union between two people and to no longer enforce the traditional definition of marriage as being between a man and a woman, across Australia and in our home state of South Australia there were a vast number of people who registered a 'no' vote. In fact, nearly five million people in Australia registered a 'no' vote.
Whilst we focus very heavily on those people who strongly advocated for a 'yes' vote or strongly advocated for a 'no' vote, there was a group of people in the middle who I believe were probably the overwhelming number of the population and who I'm sure all of us in this place heard from—the 'Just get on with it; it's inevitable' vote. So, I think we need to be very careful, when we proceed with this bill, to ensure that we actually take into account the concerns of the people who were ideologically, fundamentally and absolutely committed to the votes on either end of the spectrum, bearing in mind that the people who voted yes were overwhelmingly successful, by anybody's terms, in an electoral situation, with over 60 per cent of Australians expressing a desire for the Marriage Act to be changed.
As I said, 4.8 million people said no. They are a group of people whose concerns we would be very foolish not to listen to. For many of these people this is an absolutely fundamental issue. It's a fundamental issue of their religion. It's a fundamental issue of the underlying belief in the way that they live their lives. I think it is absolutely incumbent on those of us here, who over the next few days will have the opportunity to debate, in committee, the bill that's been put before this house by Senator Smith, to make sure that the strongest possible protections are put into this bill to enable those 4.8 million people who said no, who are a substantial number of our population, to feel that their voices have been heard and that we have listened to their concerns. At the end of the day, we went to the people and we asked them a very simple question: do you want us to change the Marriage Act to allow two people to be able to be married under the Marriage Act? I don't think anybody asked the public whether they wanted us to discriminate any further and cause any further damage or discrimination to people as a result of changing this particular act.
We have before us an opportunity to make sure that this is the strongest and best possible piece of legislation to deliver the outcome that the Australian people have asked us to deliver but, at the same time, to protect the interests of not only those 4.8 million people who voted no but, most particularly, the smaller proportion of those people who voted no for whom this is an absolutely fundamental issue of their very existence. So I can assure you, Mr Acting Deputy President Fawcett, that I will be paying very close attention to the amendments that are brought before this chamber and making sure that I try to work with my colleagues to convince them that the protections for those people who voted no are just as important as the protections for and the freedoms of those people who voted yes. To that end, I acknowledge that there has been a lot of work done by a number of people in relation to making sure that these protections are put into place, and I acknowledge your involvement, Mr Acting Deputy President, in this as well.
With personal responsibility also comes a series of obligations. I certainly didn't come into this place or become a senator to protect people from the consequences of their own words and their own actions. I'm all for freedoms, but I appreciate that we do live in a society, in a community, and that the freedom to swing your arm actually ends at the start of the other person's nose. It's called being responsible in the exercise of your freedom of speech. In reality, if you say something stupid when exercising your freedom of speech, the government shouldn't and can't penalise you or sanction you, but you can't protect other people from thinking that you're stupid. So I think it is extraordinarily important that we make sure that we get the provisions in place to make sure that we have an adequate number of protections, but, at the same time, we can't go to the extent of protecting people from admitting to the world by their actions that they're actually stupid.
I foreshadow the fact that there are a number of amendments that are coming into this place in relation to a number of key areas, and there is one thing that we need to make sure that we do with these protections, because, if we do nothing, the opportunity is actually there to weaponise activists. I think we need to be very careful to protect people against the minority out there in the public who would seek to make hay over the next few months as the legislation settles in. I have to say I've always found it quite extraordinary that somebody who seeks to do something and requires the services of another would actually think that they would want to go and ask somebody to participate in their very special day—in this instance, a wedding—when they know that the person who is going to provide that service is not somebody who supports their values or views in life. Sadly, we need to make sure that we protect the people who might otherwise have a differing view from the weaponisation of activists who would seek to make a point by going out there and demonstrating, and I don't have to go very far to find a number of examples where people, for the purposes of trying to make a point, actually victimise other people in our community. So I call on everybody to apply a little bit of common sense here to make sure that they don't go out there to try to make a point by making somebody else's life more miserable.
Nonetheless, as I said, I foreshadow the fact that I certainly will be supporting a number of amendments. I look forward to coming into this chamber and debating them. I believe that a parent's right over the education of their child is a fundamental right. I believe it is my right to decide how my child is educated. I believe it's my right to determine that the values that I hold and that my family holds are the views that my child is exposed to in their education, and I believe it is absolutely my right for my child not to be exposed to views that are contrary to my beliefs. I am very, very strong on ensuring the parents' rights to determine educational outcomes. There is no right for a government or an institution or the education system to override my rights about my child, so I will certainly support amendments to that effect. I also believe that charities should have the right to protect their religious beliefs in their actions into the future, particularly as so many of our charities in Australia are fundamentally underwritten by religious organisations.
Very, very particularly, I think that we need to include no-detriment provisions, because I believe that, if I hold a belief, I should not be detrimentally impacted on by a law or an action of another. I'm entirely entitled to my opinion. As long as I don't breach any other law that might say that my view is of substantial and material damage to somebody else, I am still absolutely entitled to hold that view. And indeed, equally, I don't believe that anybody should be forced or compelled to endorse a view that they don't actually support.
So I think that there are a number of amendments that will be before this chamber for debate in the committee stage or as second reading amendments that have very, very strong and powerful provisions in them that will enable this particular piece of legislation, this landmark piece of legislation, to proceed, taking into account a number of views of people who possibly didn't vote yes. I think it will demonstrate to the whole Australian public that this is going to be a very mature and adult debate and that we can move forward with the minimum amount of impact on those people who possibly would have chosen not to proceed with this particular piece of legislation.
I'd also draw to attention that the reason that, in this federal legislation, we need to be so strong in focusing on this is the fact that so many of our state laws are quite different from other state laws. We can't have a situation where we've got an overarching piece of legislation as important as this piece of legislation and, for many of the underlying freedoms and discrimination provisions that sit so closely aligned with this particular piece of legislation, see one state being able to apply and interpret them differently to another. So I commend the amendments that are going to make sure that this is a harmonised approach to make sure that we give this particular piece of legislation—which, as I said, is so, so important to so many people in Australia—the best possible chance to come into effect and not be detrimentally impacting on members of our community.
During the historic debate, there was inevitably a focus on a number of people's bad behaviour, but I'd just like to point out that very little of it was bad. There was a bit, and I know that the people who were responsible for that behaviour have certainly been called out for it. They were a minority, and I'd like to commend the vast majority of Australians, and particularly those that were advocating very strongly for either the 'yes' vote or the 'no' vote, because they conducted themselves in a very dignified manner. I think it sets the scene well for the implementation of this new legislation, assuming that it passes this chamber and the other place, that we continue to do this in a mature, responsible and respectful way and respect all of the views of all Australians. With 80 per cent of people turning out to the polls, it's obviously something that the Australian public is really keen to participate in. I think that the fact that we have gone about this process in a very respectful way has given the Australian public the confidence to move forward in a respectful way as well.
One of the great things about Australia is the wonderful democracy, and I think that one of the things that we've seen through this process is democracy working. Our Constitution says that democracy is every Australian's birthright, and we are extraordinarily lucky as a country that that is the case. We came to our democracy by peaceful means, and it's crucial that we never, ever take it for granted. It takes a lot of things, sometimes including great sacrifice, to ensure that we are secure in our democracy. It takes an informed electorate of individuals and communities properly holding the government to account. It takes an objective and fearless media. It takes people who are prepared to run for office and people who are prepared to help them. It requires the enforcement of people's will, as well as the expressions expressed in law, in keeping the civil peace. It requires protection of the nation's sovereignty and independence by armed forces against exterior threats. All too often, it simply requires hard work. Winston Churchill said:
… democracy is the worst form of Government except for all those other forms …
It is, in fact, the best form of government, but it is also the hardest. It's supposed to be the hardest because it's the most worthwhile. It's important not to make the mistake of thinking that democracy is about giving everyone what they want or to make things easy for people. It's about giving you, the public, and others a voice in government and the freedom to express your views—and sometimes your views don't prevail. It's also about accepting the results even if you don't agree with them.
Australia is a democracy. It is not only a conversation; it is absolutely a compact. This bill doesn't play favourites either. It affords ministers of religion, celebrants and organisations protections from penalty and sanctions. With the amendments that are being put forward, there is the opportunity for us to end up with a bill that is able to represent what Australia's democracy stands for, what it's always stood for. I believe we have a once-in-a-lifetime opportunity as a parliament, as a Senate and as a House of Representatives, and as a government to show the absolute best way for democracy, as we present our face to the rest of the world in the way we debate this bill—not only in the way we debate this bill, and, I assume, pass this bill; also in the way we roll it out into the community and the respectful and responsible way that everybody in society accepts that we need to move on.
We will be judged on how we are able to deliver this bill. We will be judged on how we implement it. We will be judged on the responsible and respectful way that we treat the people who didn't necessarily agree with our point of view, whether we were on the winning side or whether we were on the losing side. As a representative of all South Australians, like you, Acting Deputy President Fawcett, I will reserve my right to consider all of the amendments that come before this chamber over the course of this debate, particularly in relation to future legislation to protect religious freedoms for those people who would seek to have them protected.
I commend the bill to this house in its current state. However, as I said, I look forward to making sure that we make it the strongest possible bill by the time it goes to the vote. I will respect the view of the people of South Australia, who overwhelmingly voted for the Marriage Act to be amended. However, I hope that we will be able to achieve a bill at the end of this week that enables us to protect the freedoms of religion of those people who voted no.
Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications, Minister for the Arts and Acting Minister for Regional Communications) (11:21): This is the third free vote debate that I have had the opportunity to contribute to since I've been in this place. Previously we have had the issue of who should determine the safety and efficacy of RU486—should that be a minister or the Therapeutic Goods Administration. Previously we've had come before this place whether embryonic stem cell research should be legal. On both occasions this chamber saw the best of our colleagues in the manner in which each contributed, often with different views but universally they were presented respectfully. I think on those occasions this place operated in the way that Australians would hope and like to believe that the Australian parliament operates. What I've seen unfold so far in this debate on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 is a similar debate and I hope that that does continue.
What has brought us to this point today really is two things: firstly, the fulfilment of a government election commitment; and, secondly, a change in community views. In terms of fulfilment of a government election commitment, colleagues will recall that before the last election the coalition said that, if re-elected, it was going to provide the Australian people with the opportunity to express their views in relation to a change to the marriage law. What we put before the Australian people was that there would be a compulsory-attendance plebiscite. Despite endeavouring to give effect to that election commitment through this place, the Senate was otherwise minded. The government then set about looking for an alternative mechanism to give effect to its election commitment, and what the government put forward was a postal survey. I think all colleagues, regardless of their view about having a postal survey, would now recognise and accept that it was a very successful exercise. There was high attendance and there was a very clear result. That has had the benefit that the nation, as a whole, has embraced the path that this parliament has embarked upon and I think it gives great community acceptance to what will ultimately occur.
The second thing that has brought us to this point, as I mentioned, is a change in community views. For those colleagues who were here, or can remember, it wasn't that long ago that during the Howard government legislation was introduced into this place to make specific reference to marriage being between a man and a woman. It wasn't that long ago and, at that time, that vote had the support of the Liberal Party, the National Party and the Australian Labor Party. But, clearly, views in the community and in this place have changed since that time. For that reason, no-one should be criticised for having changed their own point of view since then. Likewise, no colleague should be criticised for maintaining the view that they had at that time.
I am one of those people whose views have changed over time. I historically had a view that supported the maintenance of the status quo when it came to the definition of marriage. I always, I must admit, had a bit of a tension between that view and the libertarian in me that believed that, fundamentally, individuals should be able to contract with each other in the way that suits them. Ultimately, it is that latter view within myself that won out over time.
In terms of the recent public debate and discussion, the way that that was given effect to was twofold. Firstly, I voted yes in the postal survey. Secondly, I lent my name to the Libs and Nats for the 'yes' campaign in the form of an advertisement in the newspaper. I must say, I didn't partake in any other campaign activities, for the reason that I thought and believed that Australians were well capable of forming their own views on these matters without the benefit of extensive campaigns on either side. But, nevertheless, I thought it appropriate as a public figure to lend my name to that advertisement to indicate what my view was and what my disposition was.
We will shortly be coming to the end of this second reading debate. We will then be moving to debate amendments. I am, to some extent, satisfied by the protections for conscience and religious belief which are contained in Senator Smith's bill. I do, however, recognise that there are some cogent arguments for additional protections. I am going to follow the debate closely in the committee stage, and there may well be some additional protections that I will support in the committee stage. But it's also important, I think, to recognise that we do also have the Ruddock process which is looking at the broader issue of religious freedoms and protections in the community beyond those which relate directly to this marriage debate. There are a number of amendments that, I believe, would be better not supported so that the Ruddock committee can undertake its work. But there will be some additional protections in the context of this bill that I will be entertaining.
I started by saying that this is the third free vote and debate that I have taken part in in this place. They have, thus far, all been characterised by respect and by good dealings throughout the chamber. It's my hope and belief that that will continue to be the case here. I look forward, shortly, to supporting the second reading of the bill.
Senator JACINTA COLLINS (Victoria) (11:31): I would like to join with colleagues around the chamber who have commended the way this debate has proceeded. In very general terms, there has been respect and dignity in its conduct. Other colleagues have referred to some of the extremes. I'd have to share with the chamber that I've experienced some of those extremes on both sides, but they have been that—extremes. I'd also like to say the way this debate has proceeded in this chamber, and coming into this chamber, should be commended, as well. Particularly, I commend Senator Fawcett for his conduct of the committee inquiry. The outcomes of that inquiry deserve to be highlighted. On behalf of the Australian Labor Party, Senator Kitching's contribution to that inquiry and the consensus views that came out of that inquiry have been, also, very helpful. And, indeed, I commend all senators who participated.
Senator Smith, now here in the chamber, has taken the outcome of that inquiry with some of his coalition colleagues and produced this bill, the Marriage Amendment (Definition and Religious Freedoms) Bill 2017. I don't think Senator Smith himself or, indeed, many others would insist that the bill is the perfect outcome. Indeed, there are outstanding matters that the committee report referred to and that we may not be able to resolve in the limited time we have available now. I can share with the chamber, I think, that it's a rare find to find a perfect bill. It's part of our legislative process that further work is often required, but I think all senators have engaged with this process with respect, and that deserves to be acknowledged.
I'd also like to highlight the amount of work that Senator Fawcett has put into the amendments that are circulating in the chamber now. Senator Fawcett, following the Senate inquiry, has engaged with a range of parties in a valiant attempt, I think, to try and resolve a range of issues, some of them falling within the scope of same-sex marriage, some of them dealing with issues that relate to the interface between same-sex marriage and some broader issues related to religious liberty, religious freedom, freedom of expression and belief, and such matters. The goodwill and intent of those parties, I think, deserves to be highlighted, also.
There is one matter, though, that I would like to dwell on for a moment. Senator Fifield was referring to his previous engagement with conscience vote matters. I've been reflecting, over recent days, my own experience dating back over 20 years of dealing with these types of issues. The one exception to those thanks and commendations that I just made has been the way in which some have chosen to make these debates quite partisan. I have not appreciated hearing reports, for instance, that Labor senators are scared or gutless. I won't name the senator in this debate now, but the suggestion that those on the other side of the chamber who have similar concerns are gutless is unworthy. That's perhaps not the only area where some partisanship has carried over this debate. Many senators have referred to the Liberal Party election promise to hold the plebiscite and the challenges that occurred because the opposition had a different view on how that plebiscite should be conducted.
But I think we should perhaps go back to an earlier stage in history. Of course, as Senator Fifield referred to, public opinion on this issue has changed and has been changing now for quite some time—perhaps the last decade. I agree that, in 2004, when these provisions were codified in the Marriage Act, the general public opinion was probably with that codification. Since that time public opinion has shifted markedly. The Labor Party have, until our last national conference, had a conscience vote on this issue. At our last national conference many in the Labor Party expressed quite a deal of frustration that, on the other side of the chamber, the capacity to exercise a conscience position was not matched. Indeed, in the lead-up to the last election we had this issue kicked down the road a bit more with the position that a plebiscite should occur.
The survey that ultimately occurred did not surprise me at all. That public opinion in Australia on the issue of same-sex marriage is roughly 60-40 is no shock. It has been no shock to me for possibly about the last five years—the same period of time that the Labor Party has been grappling with whether a position of conscience should be maintained on that issue. The pragmatic consideration there, of course, is that the Labor Party considered that issue at a time when a position of conscience wasn't provided on the other side.
That's the background to the position that Labor senators find themselves in today, and it is with some relief that I will be able to exercise a position of conscience on this issue. In doing so, I want to highlight my thanks and reflection of the support that I receive across the Labor Party despite having a different view on this issue. I can perhaps best explain my position as representing the Victorian vote in relation to same-sex marriage. Labor senators are taking positions that, in general terms, reflect the vote that came out of Victoria. Senator Carr has long held a view supporting same-sex marriage as, indeed, has Senator Marshall. Senator Kitching supports same-sex marriage if the balance is right with respect to religious freedom. She exercised considerable work on the committee inquiry to progress these issues and I'm sure will continue to do so.
The last time I spoke on this issue was back in 2012. Despite some occasions where my position has been represented or highlighted for often a little bit of mischief sometimes, I have not addressed this issue since my contribution in this chamber when I was Manager of Government Business back in 2012, and that view has not changed. So I will be accepting the very generous offer from my colleague Senator Marshall that I pair his vote rather than him returning from New York. People may understand that Warren Entsch has suggested that he may come back to Australia to participate in the vote in the House next week. Senator Marshall and I are exercising our collegial respect in balancing each other's vote on this occasion, and I thank Senator Marshall for providing that respect and that opportunity.
The other little bit of mischief I would like to address at this stage is the suggestion that Labor senators are bound on the amendments. This is not the case. Labor senators have a conscience vote with respect to the issue of same-sex marriage, whether it's the vote at the end of the bill or issues related to same-sex marriage in the amendments. As I have explained to some people during the course of this debate, the Labor Party has established a process, which has been the case since I've dealt with conscience matters in this parliament over the last 20 years, in relation to this matter. We have established a working group representative of all of the views within the Labor caucus to manage this process respectfully. What I can indicate to the chamber, though, is that no Labor senator, in the circumstances where the Prime Minister has kicked certain issues down the road with the Ruddock review, has sought to exercise a position of conscience in relation to the amendments before us at this stage.
It might be timely for me to touch on some of the areas where those amendments have been sought, because, like Senator Ruston, I am concerned that we not weaponise activists. This bill represents, in the Australian ethos—and it certainly has been argued during the community debate—the application of a fair go. There's another Australian ethos that I would like to draw into and follow Senator Ruston's admonishments with, which is the ethos of 'live and let live'. If we don't have activists at each extreme weaponised and if we work with the existing Australian antidiscrimination framework, warts and all, and respectfully engage with the Ruddock review process, I think we can continue.
In relation to the amendments, again, I respectfully say to Senator Fawcett: we appreciate the amount of work that has gone into this process, but, for example, I have not been convinced that we need to split the definition of marriage in order to respond to the issue of same-sex marriage. I don't think we need to say to 'no' voters: 'It's okay, because we left in the Marriage Act the definition that marriage is between a man and a woman and we just added to that definition that marriage is also between two persons.' I don't really see what that definitional device achieves. But to suggest that I have been bound to a position to that effect is simply wrong. Another area in the amendments where I don't agree is the proposal that celebrants be allowed to refuse to conduct a same-sex marriage. If you're not a religious celebrant and you're operating in the common field, so to speak, then I think you should be prepared to deliver marriage services, as with other services, across the field. I don't think the issues around celebrants in general should allow for that type of discrimination.
With respect to the amendments around freedom of expression or freedom of religion or freedom of belief, again, I understand the intention and all the work that's gone into attempting to reach a formulation that might be acceptable but—and I've already said to Senator Smith, I think, that Sharia law was one step too far—I can see that there may be unintended consequences from the current formulation or, indeed, that we have not had sufficient time to address it in detail. Similarly, I have concerns about the standing of charitable organisations or religious organisations delivering social services. This is probably the key area that Senator Ruston raised—that we do not want to weaponise activists within. Senator Smith, I was pleased to see yesterday that some of the material coming forward from the tax commissioner and I think the charities commission were helpful in that respect, but this is going to be a very serious job for the Ruddock process, and I hope that this Australian ethos of live and let live is allowed to prevail.
Labor in government dealt with this issue, and I've heard it raised a few times in some of the commentaries around this bill. We dealt with this in detail when we were in government in relation to access to aged-care services. Indeed, the debate around these issues as it's represented in the Labor Party platform highlights this live and let live ethos—that the exemptions that currently apply to religious organisations are important. The countervailing issue that we need to balance, though, is to ensure that all Australians have access to appropriate services. It was found in aged-care services that there were some issues, particularly in rural and regional Australia, where access was becoming an issue for same-sex couples. As an exception in that area, we determined that the exemption would not apply to the provision of that particular service. This was not a precedent; it was an exception based on ensuring that all Australians have access to appropriate community services. It was not an argument that church based agencies would be denied public funding. It was not an argument that charitable organisations would lose tax status. None of these things occurred in that debate, nor do I think they need to be the result of this bill dealing specifically with same-sex marriage and a consensus around dealing with religious freedom.
Now, that takes me back a moment to some of the scuttlebutt about the Labor Party. The suggestion that the Labor Party does not support religious freedom is simply wrong. It's in our platform. It's one of our key values. That some on the other side have sought to beef themselves up and argue that they're the only ones that can deliver religious freedom is poppycock—absolute poppycock! A comment yesterday in, I think, The Australian re-enforced this point, so I went back to our leader's comments on these issues because I think some on the other side argued that Labor had been silent on the issue of religious freedom. That, too, is far from the truth. One example—and it's only one example, because Bill Shorten has said this on several occasions—is from 16 November, where Mr Shorten says:
We are interested and committed to religious freedom and the ability of churches to practise wedding ceremonies and marriage ceremonies according to their own tenets, and we respect that …
… … …
… we will obviously consider and have look at any amendments, but we are not up for new discrimination and new delay.
That's the Labor position. We have had a conscience vote in relation to the bill and the amendments regarding same-sex marriage. We have looked at the amendments to date and, as I mentioned, given now that the Prime Minister has kicked the issue down the road with the Ruddock review, the likelihood that some of these issues can be addressed within the limited time frame of this week leaves us with reservations about a number of the amendments as they are currently before us.
I also want to reflect briefly on the issue of representative democracy. I don't agree with this view that a poll has now been taken and, therefore, you should vote that position. It's a very limited view about how democracy operates. The suggestion made as recently, I think, as yesterday by Greg Smith at a marriage forum in Bennelong—again attacking Kristina Keneally, probably following the Prime Minister's behaviour here, in an unworthy fashion—
Senator Farrell: Appalling.
Senator JACINTA COLLINS: An appalling fashion, as Senator Farrell highlights. It is just another example of this very unhelpful partisanship that, I think, again, is unworthy of those who practise it. I have not criticised any member or senator of this place for having a different view on this issue, and I have not reflected on their strategies or their tactics, but, equally, I have not been gutless. (Time expired)
Senator FARRELL (South Australia—Deputy Leader of the Opposition in the Senate) (11:51): I rise to speak on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017. I'm a supporter of the traditional definition of marriage, and I continue to be so. When this vote is taken in the next day or two, I shall be voting no to this legislative change.
At the time I was first elected to the parliament, in 2007, it was the policy of the Australian Labor Party to support the traditional definition and traditional view of marriage, that it be between a man and a woman. While the policy was subsequently changed at a national conference of the Australian Labor Party following the 2010 election, that policy significantly, as you would be aware, Mr Acting Deputy President Sterle, provided a conscience vote to members of parliament on this issue. The question was again considered at the last national conference of the Australian Labor Party before the 2016 election, and, again, the conscience vote was re-endorsed by the Labor Party. This will be the second time that I have voted on this issue. The last time I voted on this issue, I voted with the majority and, of course, on that occasion, it led to the defeat of this legislation. On this occasion, of course, the vote will be different. When the vote is taken in this parliament, same-sex marriage will be legalised in Australia.
I have thought deeply about this issue since both the last time I voted and, in particular, the so-called survey that was conducted over recent months in this country. I've discussed the issue quite extensively with my family, my friends and members of my religious belief, the Catholic Church. While it's true that the Australian population voted by a roughly 60-to-40 margin in favour of same-sex marriage, the issue that I've considered since that vote was determined is: should that be determinative of the view I should take in this place in terms of voting on this legislation?
The conclusion I've come to is no, it should not be determinative. There are a range of reasons for that. The first reason is, of course, that the ALP opposed what was originally proposed, which was the plebiscite, and then opposed the survey. I believe we opposed it on good grounds, namely, the cost of the survey. The ALP was, at all times since the last election, prepared to vote on this issue and have it determined by the parliament, and would have done so so that this vote would have been taken very much earlier had the ALP's position been accepted by the government.
Secondly, almost five million Australians voted no and, included in that vote, of course, were many ALP voters. Lots of those people would have voted no for reasons of faith. I don't believe it's an unreasonable position for me to adopt, that I should reflect the views of those no voters and, in particular, those people who support the Labor Party who voted no. The vote was not a unanimous vote, and I believe that my no vote in this place reflects the view of those people who voted no in this most recent survey.
Finally, on that issue, I fought for the conscience vote in my party, and my conscience, on this occasion, tells me that I should vote no and support the traditional definition of marriage. I know that some people will be very disappointed in this decision. Some people who are very close to me will be very disappointed. But I believe I must vote according to my conscience, and I will do so.
I listened with interest to the contribution that Senator Collins made about the issue of religious freedoms, and I'm aware that there are going to be a number of amendments to this legislation linking the issue of same-sex marriage with religious freedoms. I think Senator Collins explained the process that the Labor Party has set-up that deals with this issue internally, and I can indicate to you, Mr President, that I am on the committee in the Labor Party that has dealt with this issue. We have determined that we will be voting no to the additional amendments to the religious freedom issue. That's not because we're not interested in the issue of religious freedom—in fact, far from it. The Labor Party is deeply concerned about this issue, but the Prime Minister has now set up a committee to look at this issue more generally and how the issues of religious freedom should be dealt with in this country. I certainly look forward to participating—as other members of the Labor Party will surely do—and dealing with that issue in the new year. This appreciates that there are concerns in our community about how religious freedoms are being reflected and, of course, the need to ensure that those issues are dealt with properly and in a timely fashion but not be linked to this bill because the issues of religious freedom are wider than simply the issue of same-sex marriage and, therefore, should have their own respectful debate.
Also on the issue of respect, I'd like to thank the members of my own political party on the respectful way in which they have conducted this debate. It had the potential to be a difficult debate, but I'd like to thank, in particular, my Senate leader, Senator Wong, and my parliamentary leader, Mr Bill Shorten, both of whom have been actively involved in this discussion and have ensured that, within the Labor Party, this has been a respectful vote.
Senator BRANDIS ( Queensland — Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate ) ( 12:00 ): On Wednesday, 2 August 1972, Mr Murray Hill, a Liberal member of the South Australian Legislative Council, rose to move the second reading of the Criminal Law Consolidation Act Amendment Bill. The effect of the bill was to provide that homosexual acts between consenting adult males should no longer be offences under the criminal law. The bill passed the Legislative Council. A few weeks later it was moved by the member for Bragg, Dr David Tonkin, in the House of Assembly, where it also passed. I never met Murray Hill, although most of us know his son, Robert Hill, the longest-serving leader of the Liberal Party in the Senate. Dr Tonkin would go on to become a Liberal Premier of South Australia.
Murray Hill's bill was the first step taken in any Australian parliament to reform the laws discriminating against homosexual people. The word 'gay' had not entered the vocabulary at that time—at least not in the sense that we use it today. In the quarter-century that followed, all of the states and territories, under governments of both political persuasions, followed suit. The last was Tasmania, where private consensual homosexual acts continued to be a crime until as recently as 1997.
The decriminalisation of consensual homosexual acts removed a stigma which had blighted the lives of hundreds of thousands of Australians. There would, I dare say, be very few people today who would argue that the removal of that stigma was not a good thing, although it is surprising to think that it only occurred so recently. But merely to decide that conduct should not be the subject of the criminal law is a long way short of acceptance. By decriminalising consensual homosexual acts the Australian community only began its long, halting journey to recognising the complete equality of gay people—a journey first of toleration, then of acceptance, then of respect and, at last, of embrace.
In the coming days, 45 years since Murray Hill and his colleagues in the South Australian parliament set Australia on that journey, this week in the Senate and next week in the other place we will complete it. These late spring and early summer days of 2017 will always be remembered as a time when the parliament heeded the wishes of the overwhelming majority of Australians that ours should be a society defined by greater decency, truer equality, more complete freedom. The full legal equality of gay people will, at last, have been recognised. Marriage equality will be a reality by Christmas.
To change the legal definition of 'marriage' so as to include same-sex couples is a profoundly important social reform. Significantly, it is a reform which began on the conservative side of politics. Those who have followed the intellectual history of this issue locate its commencement to a single point in time—the publication in the New Republic magazine in August 1989 of the article 'Here comes the groom' written by the leading American conservative writer Andrew Sullivan. It proved to be one of the most influential articles of the late 20th century because it kicked off the gay marriage debate. It is noteworthy that Andrew Sullivan is also the author of one of the finest contemporary essays on conservatism—The Conservative Soul. In the 1990s, left-wing opinion leaders condemned Sullivan's argument for gay marriage, not because they were against gays but because they were against marriage, recognising that marriage is an intrinsically conservative institution. It is only in more recent years that those on the left have changed their tune and belatedly adopted gay marriage as a cause.
Profoundly important though the acceptance of same-sex marriage may be as a social change, its symbolic significance is even greater still. With the passage of this bill, we will demolish the last significant bastion of legal discrimination against people on the grounds of their sexuality. At last, Australia will no longer be insulting gay people by saying, 'Different rules apply to you.' So this bill is important not merely because it will enable gay people to marry, just as everybody else is able to marry; it is more important than that. After centuries of prejudice, discrimination, rejection and ridicule, it is both an expiation for past wrongs and a final act of acceptance and embrace.
I want to reflect for a moment on the message this will send in particular to young gay people—to the boy or girl who senses a difference from their friends which they find difficult to understand and impossible to deal with. In his first speech in the parliament, my friend Tim Wilson spoke movingly of his own experience of confronting that knowledge as a tormenting fear that took an energetic 12-year-old and hollowed his confidence to eventually doubt his legitimate place in the world. How many hundreds of thousands of young Australians have known that fear? How many have lived with it silently and alone? How many have failed to come to terms with it and been overborne by it? By passing this bill we are saying to those vulnerable young people: 'There is nothing wrong with you—you are not unusual, you are not abnormal, you are just you. There is nothing to be embarrassed about, there is nothing to be ashamed of, there is nothing to hide. You are a normal person and, like every other normal person, you have a need to love. How you love is how God made you. Whom you love is for you to decide and others to respect.'
Wednesday, 15 November, when the result of the postal survey was announced, was a day the like of which Australia has seldom seen. At a time when the prevailing public mood is one of frustration and cynicism, that cynicism gave way to rejoicing. As the Prime Minister said, the Australian people have spoken in their millions. They voted yes for fairness, they voted yes for commitment, they voted yes for love. It is important to acknowledge that people who were not persuaded about the desirability for change accepted the result with generosity and grace.
As the long road to homosexual law reform in Australia was begun 45 years ago by a Liberal politician, and the seminal intellectual case for same-sex marriage was made 28 years ago by a conservative writer, it is appropriate that it should have been brought to fulfilment by our Liberal government. Malcolm Turnbull is the first Australian Prime Minister to have advocated and prosecuted this cause, and it will stand as one of the signature achievements of the Turnbull government. It rises above tawdry day-to-day politics as an imperishable legacy.
If I may draw a comparison: nobody today remembers the arguments about the state of the economy, the policy controversies or the political intrigues that took place during the government of Harold Holt—like all political ephemera, they have faded into history—but people do remember the 1967 referendum, that great act of inclusion of Indigenous Australians. As the years and decades pass, its significance only grows. I predict that, like the 1967 referendum, this decision by the Australian people, enabled by their government and enacted by their parliament, will come to be seen as one of those occasional shining moments that stand out in our nation's history about which people will still speak with admiration in decades, indeed centuries, to come as one of those breakthroughs that has, as the will of history turns, defined us as a people.
As Senator Smith said in his speech introducing this bill, success has many fathers. Although this achievement was brought to fulfilment by a Liberal government and a Liberal Prime Minister, it would be churlish not to knowledge the role of so many in the Labor Party in also promoting this cause. I can well imagine their frustration during the six years of the Rudd and Gillard governments when the cause was delayed, because it is the same frustration I have felt at times with leaders on my own side of politics. But, in the end, after many years and false steps on both sides of politics and through many stops and starts, we have come, at last, to this end. As Martin Luther King famously said, 'the arc of the moral universe is long, but it bends towards justice'.
The bill we are debating tonight is the work of many hands, but it is our colleague Dean Smith who was the author of the final version. Dean has, through a long and politically difficult process, displayed abundant tenacity and conspicuous moral courage. I was privileged to have been Dean's confidante at critical times in the last several weeks, and I know better than most the burdens of stress, of loneliness and of hurt he endured to make Australia a better place for countless others. Whatever else he may achieve in what has already been a significant political career, Dean Smith will always be remembered for this. Dean is one of a group of parliamentarians who, in the 45th Parliament, resolved, at some considerable risk to their own political careers, that they would not allow this issue to be pushed off any further. Among them, we should recognise, in particular, the member for Goldstein, Tim Wilson; the member for North Sydney, Trent Zimmerman; and the member for Brisbane, Trevor Evans.
But, of course, towering above this debate, we must acknowledge the seminal role of the member for Leichhardt, Warren Entsch. Warren Entsch deserves to be remembered as—and, I dare say, is already well on the way to becoming—one of the great folkloric figures of Australian politics. Many think him an unlikely champion of the cause of same-sex marriage. And, yet, he is, in many ways, its ideal champion, embodying, as he does, in his exuberance, his generosity, his larrikin spirit and his gentle soul, so many of the qualities which are so essentially Australian. In the years to come, he deserves to be celebrated in song and story as an icon of our age.
I also acknowledge the important role in the 44th Parliament of the former member for Longman, Wyatt Roy, who, more than most, kept this issue alive during the time of Prime Minister Abbott. I find it amusing and not a little satisfying that so many of those on my side of politics who have made marriage equality possible have come from the Queensland LNP.
I want to acknowledge the contribution of a few others. My own office has worked with many to bring about this reform for a long time. I say to my staff, in particular to my former Deputy Chief of Staff, Josh Faulks, my Senior Adviser, Dr Susan Cochrane, and above all my Chief of Staff, Liam Brennan: you have played a crucial role in the history which is being made today. I wish also to acknowledge the officers of the Attorney-General's Department led by Ashleigh Saint who worked tirelessly on the initial exposure draft of the bill published last year from which much of the current bill is drawn and who have also prepared the technical amendments which I will move in the committee stage which will ensure consistency between this bill and the rest of Commonwealth law.
Australia may have been slow to reach this day—we are the last of the English-speaking democracies and one of the last countries in what was once called 'Western Christendom' to embrace marriage equality—but when that day did come it came triumphantly, it came joyously and it came, most importantly, from the Australian people themselves. Like all of the best and most enduring social change, it was not imposed from above. The will for it germinated in the hearts and minds of the people themselves. Now that the Australian people have spoken, it is for us, their elected representatives, to respond. And so let us now complete the task which they have set for us and for which so many of us have worked for so long.
Question agreed to.
Bill read a second time.
In Committee
Bill—by leave—taken as a whole.
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (12:17): The first bracket of amendments should not detain the chamber for long, I hope. These are what I referred to a moment ago in my speech in the second reading debate as the technical amendments. I should say that these amendments have been prepared within the Attorney-General's Department. Their effect is basically to ensure that the provisions of this bill align with other Commonwealth law. The effect of them, if I may summarise them, is: to ensure the recognition of foreign same-sex marriages solemnised in Australia by a foreign consular or diplomatic officer prior to the commencement of the bill; to repeal section 40(5) of the Sex Discrimination Act; to make consequential amendments to a range of Commonwealth legislation necessary to implement same-sex marriage reform, such as removing gendered language; to provide transitional arrangements for family law matters, including matters currently before the courts, maintenance matters and binding financial agreements, including matters on foot in the state jurisdiction of Western Australia; to provide a transitional arrangement to enable same-sex couples to participate in a second marriage ceremony if there is doubt as to the validity of a foreign same-sex marriage solemnised prior to commencement; to provide provisions for the Attorney to make disallowable legislative instruments to determine other transitional arrangements if they are necessary to implement these reforms; and to make technical and consequential amendments to the following acts—the Acts Interpretation Act, the Australian Defence Force Cover Act, the Defence Force Discipline Appeals Act, the Defence Force Retirement and Death Benefits Act, the Defence (Visiting Forces) Act, the Evidence Act, the Family Law Act, the Federal Circuit Court of Australia Act, the Financial Transaction Reports Act, the Governor-General Act, the Judges' Pensions Act, the Maintenance Orders (Commonwealth Officers) Act, the Marriage Act, the Migration Act, the Military Rehabilitation and Compensation Act, the Parliamentary Contributory Superannuation Act, the Safety, Rehabilitation and Compensation Act, the Safety, Rehabilitation and Compensation (Defence-related Claims) Act, the Seafarers Rehabilitation and Compensation Act and the Superannuation Act.
The CHAIR: Senator Brandis, are you seeking to move all eight together?
Senator BRANDIS: Yes. I'm sorry, I should have said that. I seek leave to move all of the amendments on sheet 8334 revised together.
Leave granted.
Senator BRANDIS: I move:
(1) Clause 2, page 2 (at the end of the table), add:
6. Schedule 2 The day after the end of the period of 12
months starting on the day the provisions covered by table item 2 commence.
7. Schedules 3 At the same time as the provisions covered
and 4 by table item 2.
[ official record of person ' s sex; consequent ial amendments; application and transitional provisions]
(2) Schedule 1, item 71, page 20 (line 24), omit "an overseas country", substitute "a foreign country".
[pre-commencement diplomatic or consular marriages]
(3) Schedule 1, item 71, page 20 (line 32), omit "the overseas country". substitute the foreign country".
[pre-commencement diplomatic or consular marriages]
(4) Schedule 1, item 71, page 21 (line 1), omit "the overseas country", substitute "the foreign country".
[ pre-commencement diplomatic or consular marriages]
(5) Schedule 1, item 71, page 21 (lines 9 and 10), omit the definition of overseas country.
[ pre-commencement diplomatic or consular marriages]
(6) Page 21 (after line 12), at the end of the Bill, add:
Schedule 2—Additional amendment of the Sex Discrimination Act 1984
Sex Discrimination Act 1984
1 Subsection 4(1) (definition of official record of a person ' s sex) Repeal the definition.
2 Subsection 40(5)
Repeal the subsection.
[official record of person's sex]
(7) Page 21, at the end of the Bill (after proposed Schedule 2), add:
Schedule 3—Consequential amendments Part 1—Attorney-General Acts Interpretation Act 1901
1 Section 2B
Insert:
spouse: see section 2CA.
2 After section 2C Insert:
2CA References to spouses
(1) For the purposes of any Act, a person is the spouse of another person (whether of the same sex or a different sex) if the person is legally married to the other person.
(2) Subsection (1) has effect in addition to any provision of an Act that affects the meaning of spouse in a provision of that Act.
Example: Spouse is defined for the purposes of an Act to include a de facto partner and a former spouse. Because of this section, a reference in the Act to a person's spouse covers any person who is legally married to the person, in addition to any person covered by the definition in the Act.
3 Application of definition of spouse
The amendments of the Acts Interpretation Act 1901 made by this Part apply, on and after the commencement of this Part, in relation to Acts enacted and instruments made before, on or after that commencement.
Defence Force Discipline Appeals Act 1955
4 Paragraph 31(1 ) ( c)
Omit "husband or wife" (wherever occurring), substitute "husband, wife or spouse".
5 Application of amendment—evidence of spouses in proceedings
The amendment of the Defence Force Discipline Appeals Act 1955 made by this Part applies in relation to proceedings before the Tribunal on or after the commencement of this Part, whether instituted before or after that commencement.
Defence (Visiting Forces) Act 1963
6 Subsection 5(1) (paragraph (a) of the definition of dependant) Omit "wife or husband", substitute "wife, husband or spouse".
Evidence Act 1995
7 Paragraph 73(1 ) ( b)
Omit "a man and a woman", substitute "2 people-.
8 Application of amendment—evidence concerning relationships
The amendment of the Evidence Act 1995 made by this Part applies in relation to evidence adduced in proceedings on or after the commencement of this Part, whether the proceedings are instituted before or after that commencement.
Family Law Act 1975
9 Subsection 4(1) (definition of child of a marriage) Repeal the definition, substitute:
child of a marriage has a meaning affected by subsections 60F(1), (2), (3) and (4).
10 Paragraph 43(1 ) ( a)
Omit "a man and a woman", substitute "2 people".
11 Subsection 55A(3)
Omit the husband or the wife", substitute "party to the marriage".
12 Subsection 55A(3)
Omit the husband and wife", substitute "both parties to the marriage".
13 Subsection 55A(4)
Omit "husband and wife", substitute "parties to the marriage".
14 Section 60E
Omit all the words after "void", substitute "as if the purported marriage were a marriage".
15 Subsection 60F(1)
Repeal the subsection, substitute:
(1) For the purposes of this Act, a child is (subject to subsections (2), (3) and (4)) a child of a
marriage if:
(a) the child is the child of both parties to the marriage, whether born before or after the
marriage; or
(b) the child is adopted after the marriage by both parties to the marriage, or by either of them with the consent of the other.
16 Subsection 60F(4A) Repeal the subsection.
17 Subsection 98A(3)
Omit "the husband or the wife", substitute "party to the marriage".
18 Subsection 98A(3)
Omit "the husband and wife", substitute "both parties to the marriage-.
19 Subsection 98A(4)
Omit "husband and wife", substitute "parties to the marriage".
20 Section 100 (heading) Repeal the heading, substitute:
100 Evidence of husbands, wives or spouses
21 Application of amendments
(1)Sections 55A, 60F and 98A of the Family Law Act 1975, as in force on and after the
commencement of this Part, apply in relation to a marriage (within the meaning of the Marriage Act 1961, as amended by this Act), even if:
(a) the marriage took place before that commencement; or
(b) for subsections 60F(3) and (4)—the adoption of the child took place before that commencement.
(2) Section 60E of the Family Law Act 1975, as in force on and after the commencement of this
Part, applies in relation to a purported marriage (within the meaning of the Marriage Act 1961, as amended by this Act), even if the purported marriage took place before that commencement.
Financial Transaction Reports Act 1988
22 Paragraph 21A(1 ) ( b)
Repeal the paragraph, substitute:
(b) if the signatory has changed the surname by which the signatory is known to that of the signatory's spouse or de facto spouse—by which the signatory was known before making that change; or
Maintenance Orders (Commonwealth Officers) Act 1966
23 Section 3 (definition of maintenance order) After "wives,", insert "husbands, spouses,".
Marriage Act 1961
24 Subsection 42(10)
Omit "a widow or widower", substitute "that that party's last spouse has died".
25 Application of amendments
Subsection 42(10) of the Marriage Act 1961, as amended by this Part, applies in relation to a marriage (within the meaning of that Act as amended by this Act) that takes place at or after the commencement of this Part.
Part 2—Defence
Australian Defence Force Cover Act 2015
26 Subsections 7(1) and (2)
Omit "husband or wife" (wherever occurring), substitute "husband, wife, spouse".
Defence Force Retirement and Death Benefits Act 1973
27 Subsections 6A(1) and (2)
Omit "husband or wife" (wherever occurring), substitute "husband, wife, spouse".
Part 3—Employment
Safety, Rehabilitation and Compensation Act 1988
28 Subsection 4(1) (paragraph (b) of the definition of spouse) Omit "husband or wife", substitute "husband, wife or spouse".
Seafarers Rehabilitation and Compensation Act 1992
29 Section 3 (paragraph (b) of the definition of spouse) Omit "husband or wife", substitute "husband, wife or spouse".
Part 4—Finance
Federal Circuit Court of Australia Act 1999
30 Subclause 9E(5) of Schedule 1
Omit "husband or wife" (wherever occurring), substitute "husband, wife, spouse".
Governor-General Act 1974
31 Subsections 2B(2) and (3)
Omit "husband or wife" (wherever occurring), substitute "husband, wife, spouse".
Judges ' Pensions Act 1968
32 Subsections 4AB(1) and (2)
Omit "husband or wife" (wherever occurring), substitute "husband, wife, spouse".
Parliamentary Contributory Superannuation Act 1948
33 Subsections 4B(1) and (2)
Omit "husband or wife" (wherever occurring), substitute "husband. wife, spouse".
Superannuation Act 1976
34 Subsections 8A(1) and (2)
Omit "husband or wife" (wherever occurring), substitute "husband, wife, spouse".
Part 5—Immigration and Border Protection Migration Act 1958
35 Subsection 5F(1)
After "another person", insert "(whether of the same sex or a different sex)".
36 Paragraph 5F(2 ) ( b)
Omit "as husband and wife", substitute "as a married couple".
Part 6—Veterans ' Affairs
Military Rehabilitation and Compensation Act 2004
37 Subsection 5(1) (paragraph (a) of the definition of partner) Omit "husband or wife", substitute "husband, wife or spouse".
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988
38 Subsection 4(1) (paragraph (b) of the definition of spouse)
Omit "husband or wife", substitute "husband. wife or spouse".
[consequential amendments]
Page 21, at the end of the Bill (after proposed Schedule 3), add:
Schedule 4—Additional application and transitional provisions
Part 1—Application and transitional provisions relating to family law matters
Division 1—Preliminary
1 Definitions
(1) In this Schedule:
pre-commencement same-sex marriage means a marriage (within the meaning of the Marriage Act 1961, as amended by this Act) that:
(a) was solemnised before the recognition time; and
(b) is recognised in Australia as valid at the recognition time because of Part 5 of Schedule 1 to this Act; and
(c) would not have been so recognised apart from that Part.
recognition time means the commencement of Part 5 of Schedule 1.
(2) A term that is used in this Schedule and defined for the purposes of the Family Law Act 1975
has the same meaning in this Schedule as it has in that Act.
Division 2—Matters under the Family Law Act 1975
2 Proceedings pending under the Family Law Act 1975 in relation to pre-commencement same-sex marriages
(1) This item applies to proceedings that:
(a) were pending under the Family Law Act 1975 immediately before the recognition time; and
(b) related to a de facto relationship that:
(i) existed before or when the proceedings were instituted; and
(ii) was between 2 persons who were parties to a single pre-commencement same-sex marriage solemnised before the proceedings were instituted.
(2) The proceedings continue under the Family Law Act 1975 at and after the recognition time:
(a) as if they related to a marriage that had been solemnised when the pre-commencement same-sex marriage was solemnised; and
(b) if the proceedings were a de facto financial cause—as if anything done before the recognition time for the purposes of a provision of Part VIIIAB of that Act (except Division 4 of that Part) had been done for the purposes of the corresponding provision of Part VIII of that Act.
Note 1: Part VIII of that Act is about property, spousal maintenance and maintenance agreements relating to a marriage. Part VIIIAB of that Act is about financial matters relating to de facto relationships. Division 4 of that Part is about financial agreements.
Note 2: Item 5 of this Schedule deals with financial agreements.
3 Cessation of maintenance at recognition time
(1 ) If:
(a) before the recognition time, an order was made under Part VIII of the Family Law Act 1975 with respect to the maintenance of a party to a marriage; and
(b) the party later became party to a pre-commencement same-sex marriage;
subsections 82(4), (6), (7) and (8) of that Act apply in relation to the order as if the party had remarried at the recognition time.
(2) If:
(a) before the recognition time, an order was made under Division 2 of Part VIIIAB of the Family Law Act 1975 with respect to the maintenance of a party (the receiving party) to a de facto relationship; and
(b) the receiving party later became party to a pre-commencement same-sex marriage with someone who was not a party to the de facto relationship;
subsections 90SJ(2), (3), (4) and (5) of that Act apply in relation to the order as if the receiving party had married at the recognition time.
4 Recognition of overseas divorces, annulments and legal separations relating to pre-commencement same-sex marriages
(1) To avoid doubt, subsection 104(3) of the Family Law Act 1975 extends to a divorce,
annulment or legal separation relating to a pre-commencement same-sex marriage, even if:
(a) the relevant date (as defined in section 104 of that Act) was before the recognition time; or
(b) the divorce, annulment or legal separation occurred before the recognition time.
(2) The Family Law Act 1975 applies as if subsection 104(3) of that Act also provided for a
divorce effected in accordance with the law of an overseas jurisdiction to be recognised as valid in Australia if the divorce related to a pre-commencement same-sex marriage and was effected before the recognition time.
(3) For the purposes of the application of subsection 104(4) of the Family Law Act 1975 in
relation to subsection 104(3) of that Act as it applies because of subitem (2), the mere fact that the divorce relates to a pre-commencement same-sex marriage does not mean that recognition of the divorce would manifestly be contrary to public policy.
5 Financial agreements and separation declarations
(1 ) This item applies if
(a) before the recognition time, the parties to a pre-commencement same-sex marriage made a Part VIIIAB financial agreement relating to a contemplated, actual or former de facto relationship between them:
(i) whether or not they were parties to the pre-commencement same-sex marriage at the time they made the agreement; and
(ii) whether or not anyone else is a party to the agreement; and
(b) under section 9OUJ of the Family Law Act 1975, the agreement is binding on the
parties to the agreement immediately before the recognition time.
(2) For the purposes of a law of the Commonwealth (including the Family Law Act 1975) at and
after the recognition time, the agreement, with the necessary changes, is taken:
(a) to be a financial agreement made under Part VIIIA of that Act relating to a
contemplated, actual or former marriage between the parties to the pre-commencement same-sex marriage; and
(b) to be binding on the parties to the agreement under section 90G of that Act until the
agreement is terminated or set aside in accordance with that Act.
(3) However, the agreement is taken not to include a provision that deals with a matter that could not validly have been dealt with in a Part VIIIAB financial agreement, even if the matter could validly be dealt with in a financial agreement.
(4) Section 90E of the Family Law Act 1975 does not apply in relation to the agreement at and after the recognition time if the agreement was covered by section 90UE (agreements made in non-referring States that become Part VIIIAB financial agreements) of that Act before that time.
Note: Section 90E and subsection 90UH(1) of that Act set out requirements for provisions in agreements relating to the
maintenance of a party or a child or children. Subsection 90UH(1) does not apply in relation to a Part VIIIAB financial agreement covered by section 90UE.
(5) lf, before the recognition time, a separation declaration was made, as described in
section 90UF of the Family Law Act 1975, for the purposes of giving effect to the agreement (whether the declaration was included in the agreement or not), the declaration is taken on and after that time to be a separation declaration made as described in section 90DA of that Act.
(6) If, before the recognition time, a separation declaration was made as described in
subsection 90MP(8), (9) or (10) of the Family Law Act 1975 in relation to the agreement so far as it is a superannuation agreement for the purposes of Part VIIIB of that Act, the declaration is taken on and after that time to be a separation declaration made as described in
subsection 90MP(3), (4) or (4A) of that Act.
(7) Subitem (6) applies whether the separation declaration was included in the superannuation agreement or not.
Division 3—Matters under the Family Court Act 1997 (WA)
6 Proceedings pending under the Family Court Act 1997 (WA) before the recognition time
Application
(1) This item applies to proceedings in a court (the WA court) that:
(a) were pending under the Family Court Act 1997 (WA) (the WA Act) immediately before the recognition time; and
(b) related to a de facto relationship that:
(i) existed before or when the proceedings were instituted; and
(ii) was between 2 persons who were parties to a single pre-commencement same-sex marriage solemnised before the proceedings were instituted.
Continuation of proceedings under the Family Law Act 1975
(2) The proceedings continue under the Family Law Act 1975 (the Commonwealth Act) at and
after the recognition time:
(a) as if they related to a marriage that had been solemnised when the pre-commencement same-sex marriage was solemnised; and
(b) if the proceedings were Part 5A proceedings (within the meaning of the WA Act)— as if anything done before the recognition time for the purposes of a provision of Part 5A of the WA Act (except Division 3 of that Part) had been done for the purposes of the corresponding provision of Part VIII of the Commonwealth Act.
Note 1: Part VIII of the Commonwealth Act is about property, spousal maintenance and maintenance agreements relating to a marriage. Part SA of the WA Act is about financial matters relating to de facto relationships. Division 3 of that Part is about financial agreements.
Note 2: Item 8 of this Schedule deals with financial agreements made under Division 3 of Part 5A of the WA Act.
(3) The WA court is invested with jurisdiction to hear and determine the proceedings as continued
under subitem (2).
(4) Any decision validly made by a court before the recognition time about the admissibility of
particular evidence in the proceedings continues to have effect for the purposes of the proceedings after that time.
(5) In performing duties or exercising powers in relation to the proceedings under the
Commonwealth Act, a court may ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
Appeal proceedings in Court of Appeal
(6) If the proceedings were an appeal instituted in, or made to, the Court of Appeal under Part 7 of
the WA Act, that Court may, on the application of a party or of its own motion, refer the appeal to a Full Court of the Family Court of Australia.
(7) If an appeal is referred to a Full Court of the Family Court of Australia under subitem (6):
(a) jurisdiction is conferred on the Court to hear and determine the appeal; and
(b) the following provisions of the Commonwealth Act, and the standard Rules of Court made for the purposes of those provisions, apply in relation to the appeal as if it were an appeal referred to in subsection 94(1) of that Act:
(i) subsection 93A(2);
(ii) section 94, except subsections 94(1), (IAA), (1A) and (3);
(iii) section 94AAB;
(iv) section 96AA; and
(c) the Full Court may proceed by way of a hearing de novo, but may receive as evidence any record of evidence given, including any affidavit filed or exhibit received in the Court of Appeal or the court from which the appeal lay.
(8) However, subsection 94(2) of the Commonwealth Act applying because of subitem (7) does
not permit the Full Court to order a re-hearing by the Court of Appeal.
This item does not apply to proceedings about guardians
(9) Despite subitem (1), this item does not apply to so much of the proceedings as relate to the
appointment or removal under section 71 of the WA Act of a guardian.
7 Cessation of maintenance at recognition time If:
(a) before the recognition time, an order was made under Division 2 of Part 5A of the Family Court Act 1997 (WA) with respect to the maintenance of a party (the receiving party) to a de facto relationship; and
(b) the receiving party later became party to a pre-commencement same-sex marriage with someone who was not a party to the de facto relationship;
section 82 of the Family Law Act 1975 applies in relation to the order as if it were an order with respect to the maintenance of a party to a marriage and the party had remarried at the recognition time.
8 Financial agreements and separation declarations
(1)This item applies if:
(a) before the recognition time, the parties to a pre-commencement same-sex marriage made a financial agreement within the meaning of Part 5A of the Family Court Act 1997 (WA), or a former financial agreement (within the meaning of that Part), relating to a contemplated, actual or former de facto relationship between them:
(i) whether or not they were parties to the pre-commencement same-sex marriage at the time they made the agreement; and
(ii) whether or not anyone else is a party to the agreement; and
(b) under section 205ZS of that Act, the agreement is binding on the parties to the agreement immediately before the recognition time.
(2) For the purposes of a law of the Commonwealth (including the Family Law Act 1975) at and
after the recognition time, the agreement, with the necessary changes, is taken:
(a) to be a financial agreement made under Part VIIIA of that Act relating to a contemplated, actual or former marriage between the parties to the pre-commencement same-sex marriage; and
(b) to be binding on the parties to the agreement under section 90G of that Act until the agreement is terminated or set aside in accordance with that Act.
(3) However, the agreement is taken not to include a provision that deals with a matter that could
not validly have been dealt with in a financial agreement within the meaning of Part 5A of the Family Court Act 1997 (WA), even if the matter could validly be dealt with in a financial agreement within the meaning of the Family Law Act 1975.
(4) If the agreement was a former financial agreement (within the meaning of Part 5A of the
Family Court Act 1997 (WA)), then section 90E of the Family Law Act 1975 (requirements for provisions in agreements relating to the maintenance of a party or a child or children) does not apply in relation to the agreement.
(5) Section 90DA (need for separation declaration) of the Family Law Act 1975 does not apply in
relation to the agreement unless the spouse parties separate, and begin living separately and apart, at or after the recognition time.
Part 2—Other transitional provisions
9 Second marriage ceremonies for certain marriages by foreign diplomatic or
consular officers that occurred in Australia before commencement
(1) This item applies to a marriage (within the meaning of the Marriage Act 1961, as amended by
this Act) that was solemnised:
(a) in Australia, before the commencement of this item; and
(b) by or in the presence of a diplomatic or consular officer of a foreign country (whether or not the country was a proclaimed overseas country at the time the marriage was solemnised).
(2) Subsections 113(2) and (5) of the Marriage Act 1961, as in force on and after the
commencement of this item, apply in relation to the marriage as if it took place outside Australia.
Part 3—Transitional rules
10 Transitional rules
(1) The Attorney-General may, by legislative instrument, make rules (transitional rules)
prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Act.
(2) To avoid doubt, the transitional rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of an Act.
(3) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act
2003 does not apply to transitional rules made during the period of 12 months starting on the commencement of this item.
[application and transitional provisions]
Senator ABETZ (Tasmania) (12:19): There is no objection from me, but I think it's very instructive that all these amendments were deemed necessary and consequential upon any potential change to the definition of marriage, matters which the Australian people were told would not be necessary; that it was just a very simple change to a few words in the act. Now, here we have eight separate lots of amendments to other pieces of legislation, confirming that which the 'no' case said was absolutely true—namely, that there are many consequential amendments. Having said that, I don't stand in the way of them because if we do go down this track as a parliament, then it makes good sense to have these amendments. So the purpose of my contribution is to simply say that those that campaigned so heavily, asserting that there are no consequential amendments required, that it is all very simple and it is just changing a few words have now been exposed. The changes are going to be far-reaching. Having said that, I do not stand in the way.
Senator WONG (South Australia—Leader of the Opposition in the Senate) (12:21): Just to indicate, Chair, Labor will be supporting these technical amendments as set out in 8334. The amendments ensure that the bill as proposed meshes appropriately and properly with existing Commonwealth legislation. They're essentially modifications to the drafting of the bill, designed to ensure it will best achieve the purpose, consistent with the bill and the Senate committee report. We've considered the amendments. We thank the Attorney-General for providing them to us. We consider that these amendments make appropriate drafting changes and we'll be supporting all of the amendments on 8334.
The CHAIR: Just to confirm, Senator Wong, you are saying that you're agreeing to those amendments on sheet 8334 revised?
Senator WONG: Correct.
The CHAIR: Thank you.
Senator RICE (Victoria) (12:22): The Australian Greens will also be supporting these amendments. They're obviously a suite of amendments that are necessary to fit in with our existing laws. We would like to thank the Attorney-General's Department for the work put in to make sure that this law is going to proceed and operate as smoothly as possible.
Question agreed to.
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (12:23): by leave—I move amendments (1) to (19), (21) to (23), (25), (27) to (38) and (40) to (44) on sheet 8326 together that stand in my name and the name of Senator Paterson:
(1) Clause 1, page 1 (lines 6 and 7), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment (Definition and Protection of Freedoms) Act 2017".
[short title]
(2) Schedule 1, item 1, page 4 (lines 8 to 10), omit paragraph 2A(a), substitute:
(a) to allow civil celebrants (including traditional marriage celebrants) to solemnise marriage, understood as:
(i) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or
(ii) the union of 2 people to the exclusion of all others, voluntarily entered into for life; and
[consequential—definition of marriage]
(3) Schedule 1, item 1, page 4 (line 11), after "religion", insert "or traditional marriage celebrants".
[consequential—traditional marriage celebrants]
(4) Schedule 1, item 1, page 4 (line 13), after "own religious", insert "or conscientious".
[conscientious beliefs]
(5) Schedule 1, item 1, page 4 (line 15), after "religious", insert "and conscientious".
[conscientious freedom]
(6) Schedule 1, item 2, page 4 (line 27), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrant]
(7) Schedule 1, item 3, page 5 (lines 5 and 6), omit the item, substitute:
3 Subsection 5(1) (definition of marriage )
Repeal the definition, substitute:
marriage means:
(a) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or
(b) the union of 2 people to the exclusion of all others, voluntarily entered into for life.
[definition of marriage]
(8) Schedule 1, item 5, page 5 (lines 13 to 17), omit the item, substitute:
5 Subsection 5(1)
Insert:
traditional marriage celebrant means a person identified as a traditional marriage celebrant on the register of marriage celebrants under Subdivision D of Division 1 of Part IV.
[definition of traditional marriage celebrant]
(9) Schedule 1, page 5 (after line 17), after item 5, insert:
5A After section 5
Insert:
5AD Determining when a belief is held etc.
(1) For the purposes of this Act, a person holds a genuine religious or conscientious belief, or genuinely believes, if the holding of the belief (inclusive of the person's or entities beliefs as to the actions, refusals, omissions or expressions that are consistent with that belief)is not fictitious, capricious or an artifice.
(3) For the purposes of this Act, if an authorised celebrant holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, then in holding, expressing or acting on that belief:
(a) whether or not another person who is to be married is a man or a woman is to be determined by the authorised celebrant; and
(b) in determining whether the other person is a man or a woman, if the authorised celebrant reasonably believes and genuinely believes that the current legal status of the other person as a man or a woman is different from the legal status of the other person as a man or a woman at the time of the other person's registration following the other person's birth, the authorised celebrant may disregard the current legal status of the other person's sex or gender, or their gender identity or intersex status.
[determining when a belief is held]
(10) Schedule 1, item 8, page 5 (line 24), omit "Religious", substitute "Traditional".
[consequential—traditional marriage celebrants]
(11) Schedule 1, item 8, page 5 (line 25), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrants]
(12) Schedule 1, item 8, page 5 (line 27), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrants]
(13) Schedule 1, item 8, page 6 (line 1), omit paragraph (b), substitute:
(b) either:
(i) the person is a minister of religion; or
(ii) the person holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
[entitlement to be identified as traditional marriage celebrant]
(14) Schedule 1, item 8, page 6 (line 2), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrants]
(15) Schedule 1, item 8, page 6 (line 6), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrants]
(16) Schedule 1, item 8, page 6 (line 9), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrants]
(17) Schedule 1, item 8, page 6 (line 11), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrants]
(18) Schedule 1, item 8, page 6 (line 15), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrants]
(19) Schedule 1, item 8, page 6 (line 16), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrants]
(21) Schedule 1, item 8, page 7 (line 18), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrants]
(22) Schedule 1, item 8, page 7 (line 20), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrants]
(23) Schedule 1, item 8, page 7 (line 23), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrants]
(25) Schedule 1, item 8, page 7 (after line 33), after section 39DE, insert:
39DF Request for identification as a traditional marriage celebrant to be removed
(1) A traditional marriage celebrant may, in writing, give the Registrar of Marriage Celebrants notice that the celebrant no longer wishes to be identified as a traditional marriage celebrant on the register of marriage celebrants.
(2) If a traditional marriage celebrant gives the Registrar of Marriage Celebrants notice in accordance with subsection (1), the Registrar must remove the identification of the celebrant as a traditional marriage celebrant from the register.
[removing identification as traditional marriage celebrant]
(27) Schedule 1, item 17, page 10 (line 3), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrants]
(28) Schedule 1, item 17, page 10 (line 5), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrants]
(29) Schedule 1, page 10 (after line 6), after item 17, insert:
17B Before subsection 45(1)
Insert:
Ministers of religion
17C Before subsection 45(2)
Insert:
Traditional marriage celebrants
[consequential—form of ceremony]
(30) Schedule 1, item 18, page 10 (lines 7 and 8), omit the item, substitute:
18 Subsection 45(2)
Omit "not being a minister of religion", insert "being a traditional marriage celebrant (other than a minister of religion)".
18A After subsection 45(2)
Insert:
Other authorised celebrants
(2A) Where a marriage is solemnised by or in the presence of an authorised celebrant, not being a minister of religion or a traditional marriage celebrant, it is sufficient if each of the parties says to the other, in the presence of the authorised celebrant and the witnesses, the words:
"I call upon the persons here present to witness that I, A.B. (or C.D.), take thee, C.D. (or A.B.), to be my lawful wedded wife (or husband or spouse)";
or words to that effect.
Certificates of marriage
[traditional marriage celebrants / form of ceremony]
(31) Schedule 1, item 19, page 10 (lines 9 and 10), omit the item, substitute:
19 Before subsection 46(1)
Insert:
Traditional marriage celebrants
19A Subsection 46(1)
After "denomination", insert "but being a traditional marriage celebrant".
19B After subsection 46(1)
Insert:
Authorised celebrants (other than ministers of religion or traditional marriage celebrants)
(1A) Subject to subsection (2), before a marriage is solemnised by or in the presence of an authorised celebrant, not being a minister of religion of a recognised denomination or a traditional marriage celebrant, the authorised celebrant shall say to the parties, in the presence of the witnesses, the words:
"I am duly authorised by law to solemnise marriages according to law.
"Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.
"Marriage, according to law in Australia, is the union of 2 people to the exclusion of all others, voluntarily entered into for life.";
or words to that effect.
State and Territory officers
19C Subsection 46(2)
After "subsection (1)", insert "or (1A)".
[explaining nature of marriage relationship]
(32) Schedule 1, item 20, page 10 (line 26), after "religious", insert "or conscientious".
[minister of religion may refuse to solemnise marriages]
(33) Schedule 1, item 20, page 10 (line 28) to page 11 (line 7), omit subsection 47(3), substitute:
(3) To avoid doubt, a minister of religion may refuse to solemnise a marriage, despite anything in this Part or any law of a State or Territory,if any of the following applies:
(a) the refusal is consistent with the doctrines, tenets or beliefs of the religion of the minister's religious body or religious organisation;
(b) the refusal is made because of the religious susceptibilities of adherents of that religion;
(c) the minister's genuine religious or conscientious beliefs do not allow the minister to solemnise the marriage.
[minister of religion may refuse to solemnise marriages]
(34) Schedule 1, item 20, page 11 (line 9), omit "This section does not", substitute "Subsections (2) and (3) do not".
[minister of religion may refuse to solemnise marriages]
(35) Schedule 1, item 21, page 11 (line 13), omit "Religious", substitute "Traditional".
[consequential—traditional marriage celebrants]
(36) Schedule 1, item 21, page 11 (lines 15 to 17), omit subsection 47A(1), substitute:
(1) This section applies to a traditional marriage celebrant who is not a minister of religion.
Note: For the refusal by a minister of religion to solemnise a marriage, see section 47.
(1A)Despite anything in this Part or any law of a State or Territory, the celebrant may refuse to solemnise a marriage that is not the union of a man and a woman if:
(a) the celebrant holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; and
(b) the holding by the celebrant of that belief does not allow the celebrant to solemnise the marriage.
[traditional marriage celebrants may refuse to solemnise marriages]
(37) Schedule 1, item 21, page 11 (line 19), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrants]
(38) Schedule 1, item 21, page 11 (after line 30), after subsection 47B(1), insert:
Note: Examples include:
(a) provision of services by relationship counsellors;
(b) hire of reception halls;
(c) catering for receptions.
[facilities, goods or services]
(40) Schedule 1, item 63, page 17 (line 11), omit "religious", substitute "traditional".
[Sex Discrimination Act 1984]
(41) Schedule 1, item 63, page 17 (line 15), omit "religious", substitute "traditional".
[Sex Discrimination Act 1984]
(42) Schedule 1, item 63, page 17 (line 18), omit "(1)", substitute "(1A)".
[Sex Discrimination Act 1984]
(43) Schedule 1, item 64, page 18 (line 10), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrants]
(44) Schedule 1, item 66, page 19 (line 7), omit "religious", substitute "traditional".
[consequential—traditional marriage celebrants]
We also oppose schedule 1 in the following terms:
(20) Schedule 1, item 8, page 6 (line 18) to page 7 (line 17), section 39DD to be opposed.
[transitional provisions for existing marriage celebrants]
(24) Schedule 1, item 8, page 7 (lines 26 to 33), subsection 39DE(3) to be opposed.
[not identifying person on register as traditional marriage celebrant]
(26) Schedule 1, items 9 to 16, page 8 (line 3) to page 9 (line 34), to be opposed.
[general provisions relating to marriage celebrants]
(39) Schedule 1, item 57, page 15 (lines 23 and 24), to be opposed.
[recognition of foreign marriages]
These amendments go to a couple of issues, one particularly to do with religious and conscientious protection for celebrants that was raised during the Senate select committee. The human rights law is a right that extends to every individual, not just to members of the clergy and not just to religious organisations.
There was some discussion during the Senate select committee around how to deal with civil celebrants. I think it's important to realise that civil celebrants include a range of people, some who run it essentially as their own small business and some who are ministers of religious bodies or churches that are not recognised denominations by the Attorney-General's Department. There's a specific category under the Marriage Act that recognises ministers of a religious body. The way that that has been accommodated for ministers of a small congregation governed denomination has been for them to essentially act as a civil celebrant. In order to extend the same rights of conscientious and religious belief to them that are enjoyed by ministers of religion, the Senate select committee report came up with the recommendation—which has been adopted by Senator Smith—to create a new category of civil celebrant, and people could request to move into that category so that they could exercise the same rights as a minister of religion. In that part, we agree with what Senator Smith has put forward.
This is where we don't agree. Under the International Covenant on Civil and Political Rights, article 18, freedom of religious and conscientious belief applies to every individual. A celebrant who is not a minister of one of these small, congregationally governed religious groups can still have their own individual religious or conscientious objection to being intimately involved in the solemnisation of a wedding that they don't agree with. The solution that Senator Smith came up with was essentially to put in a grandfathering provision in for people who are currently civil celebrants who have an objection—for them to be grandfathered until they exit the industry—but to have no new people coming into that category. But, if we are to recognise that those people have that right, then there's no reason why any individual shouldn't be able to start and continue as a civil celebrant having that same right to exercise their religious or conscientious freedom, given that there are a range of providers where people could access the service. This amendment seeks to recognise that the right which has been acknowledged in a transitionary manner under the Smith bill should in fact be an ongoing right, because that is what aligns with the International Covenant on Civil and Political Rights.
I know that a number of people have talked around the fact that they shouldn't be allowed to make that discernment. But I come back to the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights. It says there:
… a limitation referred to in the Covenant shall not be interpreted so as to jeopardize the essence of the right concerned.
It also says:
All limitation clauses shall be interpreted strictly and in favor of the rights at issue.
Under the ICCPR, to which Australia is a signatory, where two rights come into conflict—and here it's the right to not be discriminated against versus the right of somebody to have freedom of religious or conscientious belief—the UN has said that one right shall not completely crush the other and that, where one is to be limited, it will have, if you like, the benefit of the doubt. The ICCPR also says—and this is one area where Senator Smith's statement of compatibility with human rights is technically incorrect—that any limitations must be necessary in order to achieve the outcome. Senator Smith's statement of compatibility says that any limitation must be reasonable. There are many things that could be reasonable but are not necessary in order to achieve the outcome. This issue for civil celebrants falls into that category. Not only for people who are ministers of a small, congregationally governed religious group but for people who, as individuals, enjoy the same protections of article 18 as any other person in Australia, we, as a signatory to the ICCPR, need to make sure that we only limit their access to their right to religious liberty or conscientious freedom when it is absolutely necessary. Clearly in this case, as indicated in Senator Smith's bill—because he's already introduced a transitionary provision—it is not necessary for that right to be limited. We're arguing for that right to be one that is ongoing, rather than a transitionary one.
In a similar manner, we're looking at the issue of the very definition of 'marriage'. The postal survey that went out asked Australians the question: should the law be changed to allow same-sex couples to marry? Some 61.4 per cent of people came back and said yes. Going back to the Siracusa principles—where, in balancing the rights, we shouldn't completely extinguish one right for the other and we should only limit where necessary—the question has to be asked: is it necessary to abolish the definition of 'marriage' that is held by nearly 40 per cent of the Australian people, where marriage is between a man and a woman, in order to achieve the ability for same-sex couples and others to marry? The answer is clearly no.
The change that we have proposed extends the definition. It says:
marriage means:
(a) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or
(b) the union of 2 people to the exclusion of all others, voluntarily entered into for life.
What that means is that we are providing a balance so that 40 per cent of Australians who hold to the traditional view of marriage are not unnecessarily disenfranchised, but in no way does it prevent people who are same-sex-attracted who wish to access marriage being able to do that. It is an amendment that is intended to be a unifying amendment, meaning that we actually provide Australians, whichever way they voted—the 60 per cent and the 40 per cent—with a place in our law, so that they recognise that their views are respected and legal in Australian law.
The CHAIR: Just before we hear from other senators, I advise that Senator Fawcett has, by leave, moved all of the amendments on sheet 8326 together but we will deal with them differently. For amendments (1) to (19), (21) to (23), (25), (27) to (38) and (40) to (44) the call will be that the amendments be agreed to, and for the rest of the amendments the question will be that schedule 1 stand as printed.
Senator PATERSON (Victoria) (12:32): I rise briefly to speak in favour of the amendment that Senator Fawcett and I moved. I don't want to recap everything Senator Fawcett said, because he outlined the clear intent of this amendment and the issues at stake, but I just want to briefly put on the record my reasons for moving and supporting this amendment and my reasons for encouraging other senators to do so.
Firstly, on the issue of celebrants—senators will be aware that this is one of a number of amendments to broaden protections for civil celebrants in solemnising a same-sex wedding. I think this reflects widespread concern about the adequacy of protections in the bill we have before us about the role of celebrants in weddings. Senator Brandis and Senator Leyonhjelm are going to move other amendments to put in place more robust protections for civil celebrants. Each of them do so in a slightly different way, but all of them have the same objective, which is to extend the freedom granted to ministers of religion and celebrants who are religious to other celebrants who have a traditional and sincerely held belief in marriage and who may do so for religious or personal reasons, or for any other reason.
I think it's very important that we do that because, although religious freedom and religious belief is very worthy of protection—and no-one will doubt my views on that—I also believe that the conscientious views of others are equally worthy of protection. I bring to this issue my personal perspective, as someone who does not have religious faith. I am agnostic. I don't think that the values I form or hold are any less worthy of protection than the values that anyone forms or holds on the basis of their religious beliefs. Civil celebrants who have a sincere and genuinely held belief in the traditional definition of 'marriage' but who do so for secular or cultural reasons deserve no less protection than any other celebrant, and it would be equally wrong to force them, as everyone recognises it would be wrong to force a religious celebrant, to participate in a same-sex wedding. That's what this amendment seeks to do with respect to celebrants.
On the question of definitions of 'marriage'—I'm also strongly in support of this amendment. The first and most important question to ask is: what harm would occur from having two definitions of 'marriage', with equal standing, alongside each other in the Marriage Act?
My view is there is no harm caused by doing that. There is benefit, though, in doing so. As Senator Fawcett said, the question in the same-sex marriage survey was: should we change the law to allow same-sex couples to marry? This change will ensure that that takes place. The question in the survey was not: should we abolish the current definition of 'marriage' and replace it with a new one? Had that been the question, there may well have been a different answer. What I believe most Australians were voting for when they voted yes, like I did, was to change the law to remove the restriction on same-sex couples that currently prevents them from being married. This will do that.
It's important for symbolic reasons, as Senator Fawcett outlines. For the 4.9 million Australians who did vote no, it's not necessary for their belief in marriage to be abolished entirely. That's the symbolic reason, but I also believe down the track it may well be important for practical reasons, for legal reasons. When in the future a person is perhaps taken to a tribunal for sharing their belief in traditional marriage, they will take some comfort in and may derive some legal benefit from being able to point out that their view of marriage is also reflected in the law. Their belief in traditional marriage should not be able to be used to deny a gay couple from being married, but nor should it be extinguished entirely. It may also be of use, for example, for a teacher who wants to teach—consistent with their values and their school's values—their belief in the traditional version of marriage. They too will be able to point to the act and say: 'Yes, the act does, as it should, permit same-sex couples to marry. It has not abolished the traditional definition of "marriage" in doing so.' For those reasons, I urge senators to support these amendments.
Senator CORMANN (Western Australia—Minister for Finance and Deputy Leader of the Government in the Senate) (12:36): Firstly, let me indicate that I intend to support these amendments, but before making a brief contribution in support of the amendments, let me say right up front that, as I've indicated publicly before, I will vote to support the passage of this legislation through the third reading, consistent with the very clear and emphatic decision made by the Australian people in the context of the Australian marriage law postal survey. However, as I've also indicated publicly, I do support the need for additional religious protections to ensure that this change can be implemented in the best possible way. Specifically, in relation to these amendments, I do agree with the proposition that marriage celebrants—whether they are marriage celebrants on behalf of a recognised religion or marriage celebrants in any other context—are in a particular position where they should have the freedom, based on their conscience, to make a judgement on whether or not they want to be part of any type of marriage, for that matter, including the marriage that is going to become legal as part of this change. So, in that context, I do support the proposed expansion of the exemptions as they would apply to marriage celebrants.
Secondly, in relation to the alternative proposed way to amend the definition of 'marriage', I do believe that it does keep faith with the decision of the Australian people, which was to change the law to allow same-sex couples to marry. To maintain both the traditional definition of 'marriage' and complement it with a definition that is consistent with the decision of the Australian people, I believe, is an appropriate way forward. On that basis, I support these amendments.
Senator LEYONHJELM (New South Wales) (12:38): I'd like to indicate that I will support these amendments. I don't believe they are as good as the amendments moved by Senator Brandis or, indeed, by me, but their purpose is the same—and perhaps I'll end up voting for all three of them. What these amendments seek to do is extend the freedom to refuse to solemnise a marriage to all civil celebrants in addition to religious celebrants. Senator Dean Smith's bill only proposes to extend this freedom to religious celebrants. I'd like to outline two arguments, which I think ought to appeal to the Labor Party and the Greens, as to why they ought to support these amendments.
I'm really disappointed, actually, that we only have three Labor senators in the chamber. This is disturbing because it suggests they're not engaged as they no longer have a free vote now that we've reached this stage. They get a free vote at the second reading, they get a free vote at the third reading, but, in between, they are bound by their party discipline. It's very disappointing. Nonetheless, there are two good arguments that ought to appeal to left-leaning supporters of legalising same-sex marriage. Now, I'm a supporter of same-sex marriage. I have been since my first speech in this place. But I'm not left-leaning. Nonetheless, my view is religion should not be afforded a privileged place in a secular state. People who are religious have convictions; people who are not religious 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. Secondly, if we fail to extend the freedom to refuse to solemnise a marriage to all non-government celebrants, we are left with 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, because there's no religious cover for such a decision. We will, in fact, be hurting the gay community.
I believe these amendments should be supported; the one that seeks to achieve the same purpose, moved by Senator Brandis, ought to be supported; and the best of all is my amendment, which seeks to achieve the same purpose.
Senator RICE (Victoria) (12:41): The Greens will be opposing these amendments. I just wanted to begin by outlining what I understand are the key elements of these amendments that are being proposed by senators Fawcett and Paterson. The first is that civil celebrants should, in an ongoing way, be able to discriminate against LGBTI couples and anybody else that they want to discriminate against and not marry on the basis of their conscientious belief. The second is to insert a second definition of 'marriage'. There are some other things which I'll cover after those two, but I want to go to the key issues associated with those.
I will begin with the proposition, put in a lot of these amendments, that civil celebrants should be able to discriminate on the basis of their conscientious belief, or religious belief. This, of course, was an issue that was widely canvassed in our Senate inquiry earlier this year. It was a key issue that many different people gave us their views about. They were views that ranged across the whole spectrum of opinions, as you would expect. What we came down to was really fundamental to the role of marriage in our society today and the fact that marriage is now broader than religious marriage. I think this is a critical thing. A lot of the debate that we're hearing today has marriage very much still framed as being a religious institution. But marriage is now broader than a religious institution. In fact, that's essentially what the vote a fortnight ago—of 62 per cent saying that they wanted to have marriage equality—was reflecting. For so many people in our society, marriage is not a religious institution. It's a cultural institution; it's a social institution. In fact, something like 70 per cent of marriages that are conducted in Australia today are conducted by civil celebrants. Civil celebrants are conducting marriages according to the law of the land. And so when we considered all of these issues in our inquiry earlier this year, what we concluded, after hearing all of that evidence, was:
The committee considers that such celebrants perform a function on behalf of the state and should be required to uphold Commonwealth law (including anti-discrimination laws).
And so it was pretty clear, hearing all of this, that because marriage is now a broader institution—the marriage ceremonies that civil celebrants are celebrating are civil marriages; they are according to the law of the land—there is no justification to discriminate against anybody who otherwise meets the requirements of the laws of the land to be able to marry. To continue discrimination is just to entrench further discrimination, and, particularly as many of the amendments that are being proposed single out lesbian, gay, bisexual, transgender, intersex and queer people, it's continuing an ongoing discrimination against LGBTIQ people. It's just not justified.
The justification that Senator Fawcett gave is as reflected in the International Covenant on Civil and Political Rights. We often only hear about the first part of that international covenant, which is about the right to freedom of thought, conscience and religion. This was also covered in our Senate inquiry, and the view of the committee was that, yes, there is a case for reforming our antidiscrimination laws to make sure that freedom of religion is protected—that there is freedom from discrimination. But the third part of article 18 of the ICCPR says:
Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
This makes it very clear that, if you're talking about how you manifest your religion, it's got to be how it's weighed up against the fundamental rights and freedoms of others. That's something that needs to be determined through our antidiscrimination law. It's not something that should be determined in this marriage law. To include it in this marriage law would be to impose upon the fundamental rights and freedoms of others. It would entrench discrimination against LGBTIQ people.
There is a different case, of course, when it comes to religious marriage, and I think it's important to point out at the very beginning of this debate that nobody in this whole chamber is proposing that religious organisations or religious ministers have anything imposed upon them in terms of their ability to solemnise marriages according to their religion. In every church, mosque, temple and synagogue, they will be able to continue to marry whoever they choose to marry; they will be able to refuse to marry whoever they choose to refuse to marry. The rights of ministers of religion are going to continue on in that way. That's religious marriage. We are talking here, with civil celebrants, about civil marriage. It's a very different point.
The second key area that these amendments are looking at is introducing a second definition of 'marriage'. You really have to wonder whether this is satire. Here we are, having just gone through this process over the last two months to remove discrimination and campaign for equality, and this would absolutely strike at the heart of that. It would be saying, 'You've got two types of marriages.' Some people were suggesting, 'Why can't we just have a different name for it? Why can't we call it "garriage" or something like that?' That's effectively what this amendment would be doing. It would be saying: there is proper, ordinary, sensible, normal marriage and there is this other marriage. That is discrimination. That is dividing the community. That is saying that heterosexual men and women who get married are normal, but the others—if you're a lesbian, a gay person, a bisexual, a transgender or an intersex person, you are separate, you are different, and your marriage does not have the same status and standing as other marriage. It would be introducing massive discrimination into our law if that happened.
The third area, which I actually wanted to ask a question about to either Senator Fawcett or Senator Paterson, was regarding section 5AD, which you are proposing to introduce into the act. It says:
… if the authorised celebrant reasonably believes and genuinely believes that the current legal status of the other person as a man or a woman is different from the legal status of the other person as a man or a woman at the time of the other person's registration following the other person's birth, the authorised celebrant may disregard the current legal status of the other person's sex or gender, or their gender identity or intersex status.
I would like to get a response: just how do you propose that that occur? How do you feel that may impact upon the potential of marriages between people who are either transgender, gender diverse or intersex?
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (12:50): Senator Rice will recall that during the Senate select committee hearings that very issue was raised by a number of witnesses questioning where ministers of religion stood in terms of their ability to exercise discretion as to who they would or wouldn't marry. That was in that broad context of the fact that, for example, ministers in the Catholic Church won't marry people who've been divorced previously, and there's a whole range of reasons why they may or may not marry somebody. Questions were asked of what the outcome of that would be. The answer was broadly given that they would have the discretion to choose not to marry people, for any particular reason. If, in principle, we're recognising that a celebrant has the same universal human right as a member of the clergy—noting that human rights don't stop at the pulpit; they extend to the congregation and out the front door of a church, synagogue or mosque to the broader population—and if we're extending the same right to a celebrant that we are affording to a minister of religion with respect to marriages, then they should have that same right of discretion on that issue.
I will go to a couple of the other points Senator Rice raised. She talked about the role of antidiscrimination law. She's absolutely right that antidiscrimination law across the nation is what people turn to when these issues come up. But it's important to recognise that the United Nations, through their sixth periodic review of Australia, said, 'You guys should be implementing article 18,' because at the moment there is no balance in our law. This means that when somebody takes a complaint under antidiscrimination law—with the exception of the ACT and, to a certain extent, Victoria—there is limited protection in order for the judiciary to balance those two rights. In fact, in South Australia and New South Wales there is absolutely no protection whereby you can achieve the balance that Senator Rice correctly talked about. That's why we have sought to provide, in an operational sense, that introduction of article 18 into this bill, because, if we kick the can down the road and hope that somebody will be able to align all of the antidiscrimination laws around the country, we only have to look back to what Nicola Roxon, as the then Attorney-General, attempted to do to get an alignment of antidiscrimination laws around the country. The process was very long, convoluted and, in the end, bogged down to the point where it was shelved by her and then Attorney-General Mark Dreyfus because it was so complex. Part of the reason that this bill seeks to bring those protections into the very limited context of marriage is to avoid what was the dead-end process that we saw the last time we tried to nationally align antidiscrimination laws.
Senator Rice also talked about the fact that there would be a collision, if you like, of fundamental rights. You are correct, Senator Rice: there will be. The United Nations envisaged that through the development of the Siracusa principles, where they lay out a framework to say, 'Where, inevitably, these human rights do come into conflict, how do we find a balance?' Some of the principles that are laid out there include the fact that no particular right should be completely crushed by the other. The third part of article 18, which I did actually mention in my opening remarks to these amendments, and Senator Rice mentioned it as well, goes to the fact that any limitation must be necessary—not just reasonable or other things; it must be necessary. We can still achieve the ability for all Australians to access marriage without some of the limitations that are inherent in the Smith bill.
Lastly, I turn to the issue of conscientious objection. Again, that was discussed in some detail during the Senate select committee, and where the committee reached a conclusion was based on the understanding that each of us, as it turns out, incorrectly had around precedent in Australian law for conscientious objection. We looked at the conscientious objection that was provided to people who had been required to provide military service, and the general view was that was based on a religious view and on objection to war. It was subsequently pointed out to us—in fact, I think everyone's received an email—by the Defence Association that conscientious objection was actually changed in 1992 so that any individual, even if it wasn't based on a general religious objection to war, could make a conscientious objection about a particular conflict that they didn't wish to participate in and that that would be respected under Australian law. So there is actually a precedent for us to recognise conscientious objection that doesn't have a religious basis when it comes to the obligation to provide a service under Australian law.
Senator RICE (Victoria) (12:55): Thank you for that response, Senator Fawcett. I think the debate over whether there's a need for more religious protections goes to the finding of our Senate inquiry report that, yes, there are issues here that need to be addressed but they should not and cannot be properly addressed through this marriage legislation—and they do not need to be addressed through this marriage legislation. Senator Smith's bill that we are debating today contains quite sufficient protections, religious provisions, religious protections and religious exemptions to cover the issues associated with marriage.
On other issues relating to religious protections, yes, there is a debate that needs to be considered, but it needs to be considered in the context of our antidiscrimination law. I note your statement: 'Oh, well, it's very complex and it's a very difficult thing to do.' I would hope that the fact that this issue of religious freedom has come up and we have been discussing it will lead to some greater support for the recognition of the need to have more comprehensive antidiscrimination laws and, in fact, to have a charter of rights or a bill of rights, so that we can join every other Western democracy in the world and have a comprehensive suite of protections rather than the patchwork of antidiscrimination laws that we currently have.
On the issue of conscientious objection, again, the Senate committee was very clear. In fact, the committee said:
The committee notes that providing ministers of religion and civil celebrants with a right to refuse to solemnise a marriage based on 'conscientious belief' was controversial, including due to a lack of precedent under Australian law.
The committee is guided by the limited legal usage of 'conscientious belief' but observes that it would be unprecedented to allow 'conscientious belief' to be used to discriminate against a class of persons.
And that's what these amendments are seeking to do. The report continues:
The committee is not inclined to disturb established anti-discrimination law and practice. Overall, the weight of evidence suggests that there are philosophical questions that go to the very definition of religion, marriage, and a democratic society that require full consideration.
And there was a quote from Anna Brown, from the Human Rights Law Centre, who said:
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 are here debating equality. We are debating removing discrimination. That's what the Australian public asked us to do: to remove discrimination in our marriage laws, not to be introducing a blank cheque to discriminate.
Senator SESELJA (Australian Capital Territory—Assistant Minister for Social Services and Multicultural Affairs) (12:59): I rise to indicate that I will be supporting these amendments. Senator Fawcett set out very well some of the background. I commend Senator Fawcett and Senator Paterson and others who have put in a lot of work into considering some very carefully-crafted amendments that very much go to ensuring that, in honouring the vote of the Australian people in the postal survey, we do recognise and we do ensure that there are adequate and proper protections for religious freedom, for freedom of conscience and belief, and other areas. I think Senator Leyonhjelm said it well—and I agree with him—that freedom of conscience is not something that is just exclusive to people of faith. I think that is a self-evident point: some of us here are people of faith, other people are agnostic or atheist. That doesn't matter. That doesn't mean that people don't have a right to conscientious objection.
I did want to go to the point around the definition, because Senator Rice claimed in her contribution that, in fact, including a definition where both the union of a man and a woman and the union of two people would be equally recognised at law, equally called marriage and equally given all of the rights and protections that go with marriage is somehow discriminatory. I reject that. And I reject it completely because it appears to be suggesting that simply to mention that a marriage may be a union between a man and a woman is somehow discriminatory. It's not. It doesn't build a hierarchy. It doesn't do anything other than recognise that, in fact, there will be unions of a man and a woman, and there will be unions of people of the same sex, both recognised equally under law once this marriage bill passes.
I think that contrary to Senator Rice's point, I would say that this is actually a very unifying amendment because it recognises what will be the new reality that the Australian people have voted for. They will have voted that marriage can be a union between a man and woman—as it is currently reflected in law—and it can be the union of two people of the same sex. That's what the people have voted for. Those who voted yes haven't voted to obliterate the idea of there being a union between a man and a woman. If we look at what people who voted yes were looking for, that was to include in the definition of 'marriage' a union between two people of the same sex. They didn't vote to obliterate that. But, of course, it also goes to the point of saying—and this goes to a broader point, and a point I made in my speech on the second reading—as we progress through these amendments, we have the opportunity to effectively have a bill and a law that is unifying and reflects the fact that not just 40 per cent, or a tick under 40 per cent, of Australians voted no. But we know from all of the published opinion polls that a substantial number, in fact a majority of those people who voted yes, very much believe in freedom of religion and conscience. They actually want to see these things protected.
Wholesale rejection of the amendments to this bill, as I'm sure many in this chamber are proposing to do—and I think the Labor Party now en masse have said that they will do—is not the unifying way as we go forward and as we have the wash-up of this debate, which I think has been, in large part, a very respectful debate. This amendment, and why it should be supported, goes to ensuring that we have a balanced bill, that we don't completely disenfranchise 40 per cent of Australians and, indeed, that we reflect the will of many Australians who also voted yes and who believe that these concepts are very important and that protecting these concepts at law is very important. Many of those who have argued for the 'yes' case have said that they are just as committed, or more committed, to the idea of same-sex marriage, and they are just as committed, or more committed, to the idea of religious freedom and conscientious objections. Let's, as we progress, have sensible amendments—I think these are very sensible amendments—that actually look to ensure that, at the end of it, we've got a bill that is very much a unifying moment for Australia rather than one that will continue to pit one part of our community against another.
Senator FIERRAVANTI-WELLS ( New South Wales — Minister for International Development and the Pacific ) ( 13:04 ): I support these amendments and commend Senator Fawcett and Senator Paterson for the work that they've done. I want to make some comments in relation to the definitional issue. I think it's foundational and an issue that is vitally important in this debate. The Smith bill redefines 'marriage' as the union of two people, and I believe that this unnecessarily extinguishes a definition held not just by the people who voted no; let's not forget that the 'no' vote was actually the no and the people who didn't vote was 52 per cent of the actual voting people here in Australia.
The particular amendment we are discussing extends the definition of 'marriage' to include the union of two people. As Senator Seselja has just said, this is a unifying amendment. It recognises the two different views that are held in our Australian population, and I really don't understand why those opposite now choose to say that we should substitute one definition with another. The proposed definition that we say should be considered is that 'marriage' should include only 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. This definition adequately reflects the social, the cultural and the religious diversity that is Australia today. It clarifies most importantly that both of these points of view are legitimate and both are held to be equal definitions of marriage.
The question that was put to the survey was 'Should the law be changed to allow same-sex couples to marry?' This definition absolutely does that. Expanding the existing definition to allow same-sex marriage is much more consistent with the will of the people of Australia than the proposition that Senator Rice is advancing. I can say this, Senator Rice: I bet my bottom dollar that, if this amendment is not passed, it won't be too long before somebody is hauled up before some antidiscrimination board just because they dared to go out there and say, 'Oh no, marriage is between a man and a woman.' Let me give you an example. Recently I was at a nonsystemic Christian school and this was the very issue that was raised with me by parents. I bet my bottom dollar that it won't be too long before such a suit will be brought by activists. So let's avoid this and have this definition inserted into the legislation which, as I said, legitimately and equitably includes both definitions. Senator Fawcett has talked about article 18 of the International Covenant on Civil and Political Rights; also I would remind the chamber about article 23, which talks about the rights of men and women of marriageable age and clearly reflects that marriage is between a man and a woman.
On the question of celebrants, my understanding, and Senator Fawcett can correct me if I'm wrong on this, is that the Senate select committee report into the exposure draft supported the view that celebrants who are not religious ministers should be able to refuse to solemnise a marriage consistent with their religious convictions. I understood this had been approved by Labor, the Nick Xenophon Team, the Greens and coalition senators. This is consistent with international law; conscientious objectors should also be included in the exemptions. I understand this is an amendment along the lines proposed by the Attorney-General.
These amendments are very important and it is really disappointing to see those opposite, including the ALP, now voting en masse to refuse all of them. I spent a considerable time in my speech analysing the vote, particularly in Western Sydney, and I have to say to those opposite: you have well and truly forgotten your heartland. You have well and truly forgotten all those people, particularly in Western Sydney, that are members of your branches, that are members of the ALP. You have forgotten them. What is so wrong with now affording them the opportunity of having an equal say?
Senator RICE (Victoria) (13:10): I want to return to proposed clause 5AD. Senator Fawcett responded but didn't answer my question, other than to say that celebrants would be able to discriminate on the basis of whatever conscientious beliefs that they may have. This section says:
… the authorised celebrant may disregard the current legal status of the other person's sex or gender, or their gender identity or intersex status.
I want to go to a personal example. As most people in this chamber know, my wife, Penny, and I have been married for 31 years. She's a transwoman. Does this amendment mean that, if we had chosen not to marry 31 years ago, which we might not have done—my two sisters didn't get married and they've lived with their partners for an equally long time—and we wanted to get married now and we approached a celebrant, they would be able to look at us and say, 'Oh,' and perhaps having heard of our history and had knowledge that Penny is a transwoman, they would be able to blatantly and quite discriminatingly say, 'No, we're not going to marry you'? Can I confirm, Senator Fawcett, that that is what would flow from this amendment?
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (13:11): As I discussed before, out of the context of the Senate select committee the intent is to provide the same provision to celebrants that ministers of religion have, because of the human rights they have—and extend that. And, again, because the obligation under international law is to only limit to the extent necessary, as we heard in evidence, there are many other people who would be very willing to provide the service. So that is the basis for that amendment.
Senator RICE (Victoria) (13:12): You didn't answer the question. In the situation that Penny and I hadn't been married, would an authorised celebrant be able to say, 'No, we are not going to marry you'? Despite them being a civil celebrant and able to marry us according to the laws of the land, this celebrant would be able to refuse to marry Penny and me—just a yes or a no?
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (13:12): As I've said twice already, in exactly the same manner as a minister of religion has that exemption, then, yes, so would a celebrant.
Senator CANAVAN (Queensland—Minister for Resources and Northern Australia) (13:13): I want to put on record my support for these amendments. I do so repeating the same thing I said in my second reading contribution, which is that I do have great respect for those that want to see a change to the Marriage Act. I accept the force of their arguments and I accept the fact that the marriage law will change and that the majority of Australians want to see that. I also genuinely accept the point of view that has been put by Senator Rice while I've been in the chamber, that we don't want to replace, in her view, one form of discrimination with another or introduce a right whilst taking away others. But I respectfully make the point that, in fact, without these amendments that's exactly what we would be doing: we would be seeking to remove one form of discrimination while introducing another.
The fact is that nearly five million Australians did vote no and I think we ought to pay them respect and their dues that they had a genuine conscientious belief that the definition of marriage should not change. I don't believe, and I hope those on the other side don't believe, that the majority or even a significant proportion of those five million Australians—a lot of people—acted out of any sort of malice or dispute with those who wanted to make a change. I don't believe this was malicious in any way. It is genuinely a conscientious, different view about how our law should relate to marriage.
Whatever we do today, whatever we do to change the definition of 'marriage' in our country, will not change the fact that there will remain a definition of traditional marriage in our international human rights law and in particular in the International Covenant on Civil and Political Rights. The provision in article 23 of the International Covenant on Civil and Political Rights, as my colleague Senator Concetta Fierravanti-Wells mentioned, is that a man and woman of marriageable age should be allowed to marry. That definition will not change as a result of anything we do in this place or the other place or anything that the government so decides in Australia. That definition will remain there in international human rights law. I don't see that changing any time soon, because 85 per cent of countries around the world continue to maintain a definition of traditional marriage in their relevant marriage laws and most of those countries don't seem likely to change their laws any time soon. So all these amendments do is reflect the fact that there is a definition of traditional marriage in human rights law by establishing that as one arm of the definition but then also recognising that now in Australia we will add on a broader definition which includes people of the same sex as well. These amendments therefore are consistent and in line with international human rights law, and they are in line with giving due respect to those Australians who continue to genuinely and conscientiously hold a traditional view of marriage.
I think an unfortunate thing throughout this debate has been a lack of recognition of or a lack of seriousness in engaging with those who have a conscientious view that marriage should be defined as being between a man and a woman. With all respect, I think that has been evident and on display here today where Senator Rice, either wilfully or not, has been misrepresenting the arguments that have been put strongly in favour of maintaining traditional marriage as the definition. Continually we hear from Senator Rice and others in this debate that this is somehow a religious concept or only relating to peoples' religious views or faith. Either those who make that point have not been listening to the arguments that have been put on the other side or, as I say, they are wilfully misrepresenting those arguments. Those arguments are not based on religious viewpoints primarily. Although many of us have particular faith based religious views, the view that marriage should be defined in a traditional way as between a man and a woman is something that predates all the religions that are practised here in this country.
Every human culture that has independently grown up in the world's history over tens of thousands of years has had a concept of marriage or union between a man and a woman. I dispute anybody to say that that primarily has come from a belief in the Father, the Son and the Holy Spirit or Mohammed or any other religious figure. That's come about almost clearly in an evolutionary way because there is something biological and fundamental about a man-and-woman relationship. A single man and a single woman is the only way we can create another human life and perpetuate human civilisation. It's a pretty special relationship and it will continue to be. Regardless of whether we call it 'marriage' or however we define the law, there is still going to be only one way that we can create new life in the world. I think that's a miracle and that's why I think there is some recognition of that relationship.
That being said, I also accept now, given the vote of the Australian people, that we need to recognise in our law those same-sex couples that love each other and genuinely want to recognise their relationship in the law. These amendments allow us to achieve both of those things. They allow us to give recognition to those of the same sex who genuinely want to have their unions recognised under our law while still maintaining respect for the thousands of years of human civilisation and history which recognise there is something special about a 'one man, one woman' relationship which can create life and create family, and that's why I support these amendments.
I also just briefly want to touch on the fact that I think it would be incredibly discriminatory to say to those Australians who genuinely and conscientiously hold this position that they cannot pursue a career as a civil celebrant. If we do not pass these amendments, that will be the effect of the change we are making here in this place. We would be saying to those roughly five million Australians, 'You need not consider or pursue a career as a civil celebrant, because your own conscientious and traditional views will be inconsistent with that career path.' I think it unfortunate, therefore, that, in trying to remove one form of discrimination, we would be, clearly, establishing another form over a significant number of the Australian people. I see no real bar with defining and saying here that, if you genuinely hold another view, you should not be forced to do something against those conscientious beliefs. That will in no way have any practical impact on same-sex couples being able to solemnise their marriage with a celebrant who does not hold those views, while giving respect to the significant proportion of Australians who have a different view.
These amendments are about respect. These amendments are about making sure that we give respect to all the views, and the diverse views, that exist in our country. I often hear from the other side that they celebrate diversity and they want to welcome a range of different views in our community. Unfortunately, though, that's not often translated in the actual practice of the laws, because they are a party of uniformity, and if you do have a different view you are beyond the pale and not accepted. These amendments would allow an acceptance for all Australians. They give respect to all different views. That's why I support them and commend these amendments to the Senate.
Senator SMITH (Western Australia—Deputy Government Whip in the Senate) (13:20): I, of course, will be opposing the amendments of Senator Paterson and Senator Fawcett. The discussion this afternoon has focused on three key elements: firstly, what the place of a civil celebrant performing a civil law function is; secondly, what the place in our laws of conscientious objections is; thirdly, what the real analysis, the most accurate analysis, in regard to the 'yes' vote is and what the 'yes' vote actually says. There is a stark difference between the composition of the bill that's been before this parliament now for a number of weeks—a bill that's been before the public for many, many months; a bill that was born out of a very comprehensive Senate committee process with a tremendous amount of scrutiny, 400 submissions and 40 to 50 witnesses—and the set of amendments that have been put before the parliament only in the last little while, drawn from a bill that is unorthodox in the way that it seeks to apply the law in Australia.
The place of a civil celebrant in our country is clear: it should perform the function of the law. This seeking to create a class of civil celebrants that would be excused, in this circumstance, from applying the civil law was an accommodation that was drawn out of that very deliberate and considered Senate committee process. Proponents of the amendment say that the Smith bill only extends religious freedom rights to celebrants who are also ministers of religion. It thus 'fails to recognise the religious freedom rights of celebrants who, though they are not an ordained minister, wish to express their religious convictions in respect of marriage'. This limitation was not recommended by that Senate committee, it suggested. Let me read you what the Senate committee said:
The committee considers that such celebrants perform a function on behalf of the state and should be required to uphold Commonwealth law (including anti-discrimination laws). That said, the committee heard that some civil celebrants would feel compromised at having to solemnise a same-sex marriage, if the law were changed. The committee respects this position and proposes the inclusion of these celebrants in new Subdivision D (Religious Marriage Celebrants) of Division 1 in Part IV of the Marriage Act.
What does that mean? This is a distinction and deliberate accommodation of those competing views in our country about how a law change to give affect to same-sex marriage should be accommodated in our existing laws. It is responsible; it is sensible; it has the support of the community. Compare that to a new idea, an unorthodox idea.
This brings me to the second point: what is the place of conscientious objection in Australian law? This is a serious issue, and one that must be given the utmost care and consideration, not in last-minute amendments on an issue that has been of topical nature for many, many months—indeed, many, many years. It deserves very careful consideration. Why does conscientious objection, in this context, deserve very, very careful consideration? It is because it will undermine the purpose of the bill that has been deliberately and consciously drawn from the Senate committee process to remove discrimination. It will wind back discrimination protections that have been long respected and long established in our country. It would allow for discrimination for any reason. It provides less certainty than does religious belief and it is, in actual fact, not required under international law. More pertinently, to many in our community, it will single out LGBTI people and increase uncertainty for LGBTI people in our community.
It's worth going to the evidence. Those people who have not had the opportunity yet to review the Hansard, to review the submissions and to understand properly the issue of conscientious objection, I encourage you to go to the evidence before the committee. It was put to the committee that:
Almost no Commonwealth laws permit actions that would otherwise be unlawful—let alone actions that would otherwise constitute unlawful discrimination—because the person in question is acting in accordance with their conscience, as separate and distinct from religion.
… … …
Permitting a celebrant to discriminate on the basis of conscience, as distinct from their religious beliefs, exceeds the exemptions contained in the Sex Discrimination Act and all state and territory anti-discrimination and equal opportunity laws …
These are actually not minor issues. It's not even correct to call them amendments because what they seek to do is substantially change the way the bill is constructed. Let me remind you that the ethos of this bill, the building block of this bill, is: how do we effectively give effect to same-sex marriage in our country within the context of our existing religious protections in Australian law? This bill is an evolutionary opportunity to bring same-sex marriage to life in our country and to give effect to the resounding survey result, and it recognises and accepts that the religious protections that currently exist in Australian law are suitable—those protections that exist in the Fair Work Act and those protections that exist in the Sex Discrimination Act. So this, actually, is an accommodation of some of those competing interests. It is a safe, sensible, considered way in which to move our country from its current law to one that gives effect to same-sex marriage. Beware: the Paterson bill was unorthodox. It was illiberal. The Paterson-Fawcett amendments are borne of that same bill—illiberal, unorthodox.
Colleagues, I will be opposing this amendment. The Senate committee process was robust. It is a bill that has been in the public domain for many months. It is a bill that has accomplished widespread endorsement, even from church leaders, even from people of faith. The 'yes' vote, I would argue, is a demonstration that people in our country were happy to give effect to same sex-marriage in our country and accepted and recognised that the existing religious protections in our laws were sufficient.
Senator WONG (South Australia—Leader of the Opposition in the Senate) (13:28): I rise to indicate the Labor Party's position in respect of these amendments and, at the outset, indicate that our position will be to oppose them. I want to deal with a couple of matters raised in the debate and then turn to the broader philosophical framework which underpins the argument for these propositions.
First, in relation to the amendments, we do not believe it is a sensible proposition to include another definition of 'marriage'. I note that Senator Paterson said, 'There's no harm in it.' Well, if there are two sets of definitions of the same issue, that generally is something that invites problems in terms of the subsequent application of the law. Second, we are concerned, for some of the reasons that Senator Smith has outlined, about extending the notion of protection beyond religious belief to that of conscientious objection. And I'll return to that shortly.
Also, I do want to respond to the comments of a couple of senators about the Labor Party's position and place on record that, yes, there are senators on my side of the chamber who do have a different position to that of the party's platform in that they do not support marriage equality, and they have a conscience vote on that. They have not sought a conscience vote in relation to the amendments before the chamber. I think that it is important for us to recognise that that is not the assertion that was put by some senators on the other side.
Can I first move to the broader philosophical context. I think there is a tendency to conflate a right to religious belief and the way in which that right ought be treated under the law that is universally applicable to Australians. This actually goes to the heart of how a secular state deals with differences of religious belief or, in this case, as Senator Fawcett urges us to do, conscientious objection. It is not just about the balance, but about how we, as a secular state, respect peoples' right to particular religious beliefs and how we deal with that in terms of the application of the law. What we need to recall is that there is a distinction under our law between a right to believe and a right to act on that belief. There is a distinction in our law between a right to hold a belief and the exemption of someone from laws that otherwise apply universally to Australians because of that belief.
There have been occasions when the parliament and the community have said that we will provide someone, because of their particular beliefs, with an effective exemption from the law that otherwise applies to Australians. The Sex Discrimination Act is an example of that. We know, and it's been well-traversed in other discussions, that under the Sex Discrimination Act there are exemptions for particular entities from the application of the law that otherwise applies universally to Australians—for example, religious institutions or schools run by religious institutions. We've recently seen a teacher dismissed because of his sexual orientation.
I do think it is important that we recognise that distinction, because what Senator Fawcett's amendments are actually seeking is a proposition that, in relation to civil celebrants, the universality of the application of the secular law of Australia should not apply to someone on the basis of this new notion—and it is a new notion in Australian law—of conscientious objection. I do want to very much endorse Senator Smith's comments. This is a very big concept to introduce: to suggest that we should have a different treatment of Australians based not on an identified religious belief, which is known in our law and has been, effectively, negotiated or considered by the parliament in the context of various antidiscrimination legislation, but on a new notion of conscientious objection, which has been introduced in this debate about marriage equality, as a basis for not applying the law universally. This is a very unorthodox step, and, I agree, it is an illiberal step.
I also make this point: I was interested to note that the same notions were supported by representatives of the celebrant associations. The chair of the Coalition of Celebrant Associations, Ms Harrison, said:
We don't approve of exemptions. We feel that if that's the law of the country, then that's what you do. We have discrimination laws and we have to live by them.
The founder of the Civil Celebrations Network, Ms Goold, stated:
Don't bring in a law to get rid of discrimination and build in more discrimination.
Behind those words is actually a very important philosophical concept, which is: as civil celebrants, we accept that we apply the law of Australia as expressed or enacted by the parliament and as is set out in this bill.
One of the very important points about the bill that Senator Smith, I and others have brought forward—and, more importantly, that was worked through by the cross-party select committee—is that it does seek to ensure that we implement marriage equality within the context of Australia's existing antidiscrimination legislation. That is not just an important process point. It is an important point of principle. The Australian people were not asked: when you vote for marriage equality, do you reckon we should also extend the exemptions from the universal application of antidiscrimination law to more people?
That was not asked. I respect and understand the position—whilst I disagree with it—of those who were emphatic in the 'no' campaign, and there are some of them in this chamber. But it is not the case that your campaign focused on whether or not there should be exemptions for people on the basis of conscientious objection. Your campaign focused on a lot of things, some of which we found quite difficult, but I think that's for a discussion on another day.
The final point I wanted to make is this: when we are considering how, as a secular state—and we are a secular state that also respects religious belief—to deal with the religious belief that others hold, I think it is very important that we are clear about what we are seeking to protect. I read a very good essay by a lawyer from the University of Tasmania, and she made the point that we ought not:
… blur the distinction between the absolute right to belief and the limited right to act on those beliefs.
In much of this debate, there is a conflation of those two notions. We do not conflate those two notions in Australian law, and, on those occasions where we have sought to enable a limited right to act on belief in a way that is different to the way other Australians are treated, this parliament has been considered and careful about how it has approached that. We do not support the Paterson amendments for the reasons outlined.
Senator PATERSON (Victoria) (13:36): I want to make some brief comments in response to observations by Senator Smith and Senator Wong. The first point is one that Senator Smith will know well but perhaps not all senators know well, and that is to go back to the Senate select committee inquiry that took place in January and February this year to examine these issues. As Senator Smith knows, like him, I was a member of that committee and participated in the inquiry and the committee's report, and Senator Fawcett was the chair of that committee. To say that Senator Smith's bill is a product of the work of the committee is absolutely true. It is equally true to say that the bill that I produced and the amendments that I'm moving today with Senator Fawcett, which are based on my bill, are equally a product of the committee. Neither can be said to have the endorsement of the committee because both of them were produced after the committee handed down its final report. Neither bill has been put to the committee; neither bill has been discussed by the committee. The committee's report, if you read it, is silent on both bills because the bills did not exist at the time the committee reported. It's been said by some in this debate that Senator Smith's bill is the consensus of that committee. It could not be, given that the committee didn't consider it, and it certainly cannot be, given that at least two members of that committee, in myself and Senator Fawcett, disagree with it.
On the question of whether the amendments I'm moving and the bill that I released are Liberal or not—with the greatest respect, I will not take advice on what is Liberal or not from Senator Wong, the leader of the Labor Party in the Senate. Although I respect her as perhaps a scholar on social democratic values, I don't respect her as a scholar on Liberal values. There are many areas from which we can draw our inspiration for Liberal values, and I respect that, within our party, each of us applies those values in different ways. As it is always said, the Liberal Party is a broad church, and we can come to different conclusions on policy issues, even if we broadly share the same values. But one source we can consult to inform ourselves about what Liberal values are and what they constitute is the We Believe platform of the federal Liberal Party, which all Liberal members and senators seek to uphold. In the second point—and I think it is significant that it is the second point of We Believe—after stating that we believe in Australia, its people and its future, the federal platform of the Liberal Party, which is mirrored in broadly similar language by the state platforms of the party around the country, states that we believe:
In the innate worth of the individual, in the right to be independent, to own property and to achieve, and in the need to encourage initiative and personal responsibility.
It goes on to say in point 3:
In the basic freedoms of thought, worship, speech, association and choice.
Any bill or any amendment which seeks to protect freedom of thought, worship, speech, association and choice—as my bill did, and as these amendments drawn from my bill do—is, I think, the heart of liberalism.
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (13:40): One of the things I love about the Senate chamber is this committee stage, because you can actually come to the detail of bills and challenge assumptions. Senator Smith, in his contribution, highlighted the fact that the sensible accommodation in his bill, which was recommended by the committee, was the establishment of the traditional marriage celebrants. Clearly, what's been misunderstood here is the proposal in these amendments: we are saying it shouldn't be a time limited option for civil celebrants who wish to be identified as a traditional marriage celebrant and go into that category; we're saying that this should be an ongoing option. Many people here seem to have formed the opinion that what we're arguing for is someone who is a civil celebrant only to have those same options and rights. What we're arguing for is that, on an ongoing basis, people should be able to notify the registrar that they wish to be identified as a traditional marriage celebrant, and go into that category that Senator Smith has quite correctly said is an appropriate balance moving forward. So these amendments actually calling for an ongoing existence of that category for a civil celebrant who wishes to move into that category.
For those who are saying they oppose this because it's so novel, we're just arguing that what Senator Smith has put forward as an interim or grandfathered measure for existing civil celebrants should be an ongoing measure. And so the argument that it's completely novel and unprecedented is actually revealed as not to be true by the contribution Senator Smith has just made. So, I'd ask people to consider that in their judgement on these amendments. We're actually supporting that category that the committee recommended, that Senator Smith has adopted, but we're saying it should be ongoing as opposed to time limited.
The CHAIR: The question is that amendments as moved by Senator Fawcett, those being (1) to (19), (21) to (23), (25), (27) to (38), and (40) to (44) on sheet 8326 be agreed to.
The committee divided. [13.46]
(The Chair—Senator Lines)
Senator IAN MACDONALD (Queensland) (13:47): (In division) Is the amendment relating to the definition able to be separated from the amendment relating to celebrants?
The CHAIR: I believe that that question has been put, Senator Macdonald. All of the amendments on sheet 8326 were moved, by leave, together. However, they are separate questions.
Senator IAN MACDONALD: Which one are we voting on now?
The CHAIR: Amendments (1) to (19), (21) to (23), (25), (27) to (38), and (40) to (44) on sheet 8326.
Senator IAN MACDONALD: Can someone help me? Is that the issue on the definition or on the celebrants?
Government senators: Both. They're all together.
Senator IAN MACDONALD: I'm asking: can they be split?
An opposition senator: No.
The CHAIR: Senator Macdonald, they have been moved, by leave, together. The Senate has already agreed that all of the amendments on sheet 8326 be moved together. However, we have separated them out in the manner I've just described so that the first question is that the amendments be agreed to and the second question is that schedule 1 stand as printed.
Senator IAN MACDONALD: I'm asking if the different amendments can be voted on separately.
An opposition senator: No.
The CHAIR: The answer is no.
Senator IAN MACDONALD: I'm asking the Chair—thank you for your help!
Honourable senators interjecting—
Senator IAN MACDONALD: I'm exercising an informed vote on this, unlike those numpties over there, who are just doing what they are being told to do.
The CHAIR: Senator Macdonald, please resume your seat.
Honourable senators interjecting—
The CHAIR: I remind senators to be respectful. This has been a respectful debate; let's keep it that way. I've made my point, Senator Macdonald. I've made my point that the Senate has made its decision. Senator Birmingham?
An honourable senator: He can't speak if he's not in his chair.
The CHAIR: Senator Birmingham, you can't move now.
Honourable senators interjecting—
The CHAIR: Order! I am seeking to keep the debate respectful and keep people orderly. Senator Birmingham, you have the call.
Senator Birmingham: Thank you, Chair. I just wanted to say, if it may help Senator Macdonald, that there are subsequent amendments that deal more separately with the question in relation to celebrants and their treatment that don't necessarily change the definition of 'marriage'. Whilst of course you're right, Chair, that the chamber had already agreed to deal with these amendments together, it would be helpful, at least for Senator Macdonald, who asked a reasonable question, to understand that there are subsequent amendments that do deal with the matters on separate terms.
The CHAIR: Thank you, Senator Birmingham. The question now is that section 39DD and subsection 39DE(3) in item 8, and items 9 to 16 and 57, of schedule 1 stand as printed.
Progress reported.
The Senate divided. [13:58]
(The Chair—Senator Lines)
Senator IAN MACDONALD (Queensland) (13:59): Mr President, I raise a point of order. Unfortunately, due to the timing, I couldn't raise it when I wanted to with the Chair of Committees. In the last division, I sought to have the division separated so that I could support the retention of the Smith bill definition of 'marriage' but also support—if I could loosely call it this—the Paterson bill in relation to the protection of celebrants. I asked the Chair of Committees if we could divide the questions so they could be voted on separately. The chair ruled against me. I was going to ask the chair if she could refer the matter to you for further consideration. My understanding always was that, whilst the Senate by leave agreed to deal with these matters as one debate, any senator has the right to ask for divisions to be done individually. I put that to you not to respond now, but could you review the chair's decision on refusing to allow those amendments to be split?
Senator Wong: On the point of order: it is the case that a senator can ask for a question to be divided, even in circumstances where the Senate has given leave for them to be put together. But Senator Macdonald sought that the question be divided after the division had been called. It is not the case that, once a division is called, there is usually—
Senator Ian Macdonald: That wasn't the ruling.
Senator Wong: Well, the circumstance in which the senator sought that the question be divided was after the division had been called. Obviously, you're entitled, Mr President, at a request of a senator, to consider it. But I make that factual point.
The PRESIDENT: I will take advice from the Clerk and look over the events of that particular division immediately preceding question time.
STATEMENT BY THE PRESIDENT
Parliamentary Language
The PRESIDENT (14:05): Before we move to questions without notice, I'd like to bring a matter back to the chamber. Yesterday, I undertook to review two points of order taken in relation to a supplementary question from Senator McKim to the Minister for Employment, representing the Minister for Immigration and Border Protection, Senator Cash. The Attorney-General took a point of order to the effect that the rhetoric employed by Senator McKim went beyond the bounds of acceptability or decency of this chamber. While I agree that the language was inflammatory, I do not consider it was out of order. However, I would remind senators that, if a senator employs provocative language in asking a question, they cannot complain when a minister uses similarly charged language in response. As President Parry told the Senate in February last year, if a question contains a political barb, a minister is entitled, while remaining relevant and within the standing orders, to return the compliment.
Senator Bernardi took a separate point of order about the use of language which carried the imputation that a minister lied. Under standing order 193, any such imputation is highly disorderly. The fact that such imputation is contained in a question such as, 'Who is lying: you or the United Nations?' does not shield the language from the standing orders. Senator Bernardi suggested that the questions should have been ruled out of order. I don't agree, since elements of the question were in order. However, I did say at the time that I could not hear all of the question. While I don't intend to go back and revisit the matter today, I will keep a keen ear out for such language in the future.
QUESTIONS WITHOUT NOTICE
Broadband
Senator O'NEILL (New South Wales) (14:07): My question is to the Minister for Communications, Senator Fifield. Yesterday, NBN Co announced an immediate halt in the rollout of its second-rate HFC cable because it's unable to deliver a reliable, quality service. When did the minister first become aware that NBN was preparing to halt the HFC rollout? When did the minister inform Mr Turnbull of the delays? And why was this kept secret until yesterday?
Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications, Minister for the Arts and Acting Minister for Regional Communications) (14:07): I thank the senator for her question. NBN advised me on Wednesday the 22nd that they were looking to have a pause. As you'd be aware, Senator, section 91 of the Public Governance, Performance and Accountability Act states that the directors of a wholly-owned Commonwealth company must give the responsible minister reasonable notice if the directors become aware of any significant issue that may affect the company or any of its subsidiaries. Such requirements were put in place to ensure that shareholder ministers and their departments have adequate notice to assess the implications of issues raised by a government business enterprise. As colleagues are aware, NBN made an announcement yesterday.
The PRESIDENT: Senator O'Neill, a supplementary question?
Senator O'Neill: No; a point of order.
The PRESIDENT: Has the minister concluded his answer?
Senator O'Neill: Minister, you didn't answer the question with regard to when Prime Minister Turnbull was made aware of the delays.
The PRESIDENT: Sorry, Senator O'Neill. I wasn't sure if Senator Fifield sat in conclusion or if he sat when you stood. He sat in conclusion. Senator O'Neill, you have a supplementary question.
Senator O'NEILL (New South Wales) (14:08): I note that the minister didn't answer the question relating to when he advised Mr Turnbull of the delays. In May, the NBN Co confirmed that a seven-month delay to the activation of three million HFC premises would add $1 billion to NBN funding requirements. What impact will these most recent delays have on the NBN funding requirements?
Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications, Minister for the Arts and Acting Minister for Regional Communications) (14:09): NBN is still assessing these matters and is still to provide advice to government. As I mentioned, the section 91 notice is intended to give the opportunity to shareholder ministers to ask questions. We took the decision with NBN Co that it was appropriate for the public to be advised sooner, and that is what happened. We are still awaiting further advice from NBN Co.
The PRESIDENT: A final supplementary question, Senator O'Neill.
Senator O'NEILL (New South Wales) (14:10): Given it was Mr Turnbull who spearheaded the shift to his so-called superior technology of HFC before the last election, doesn't the responsibility of this mess lie solely in the hands of the current Prime Minister?
Opposition senators interjecting—
The PRESIDENT: Order! We can wait until there's some quiet before I call Senator Fifield to answer. Senator Fifield.
Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications, Minister for the Arts and Acting Minister for Regional Communications) (14:10): The multitechnology mix is one of the reasons the NBN will be completed by 2020—six to eight years sooner than would have been the case under those opposite. HFC is and will remain an important technology for the NBN. As the CEO of NBN Co has identified, there are some issues that are being addressed, which are readily fixable, to do with interference in terms of spectrum and also to do with some of the joints between the cable in the street and the cable that goes to the premises. These are all very fixable. HFC is a good product—
Senator Wong interjecting—
The PRESIDENT: Order! Senator Fifield, Senator Macdonald is on his feet on a point of order.
Senator Ian Macdonald: I'm sorry to interrupt the minister, but I'm sitting quite close to him. The Leader of the Opposition in the Senate seems to think that she is able to interject consistently and continually, drowning out the minister so that I can't hear. Can you please tell her that she is a senator and is obliged to follow the same rules as every other senator.
The PRESIDENT: Thank you, Senator Macdonald. I can rule on this. There was noise coming from multiple places around the chamber. I will again remind senators that at virtually every question time I've been in this chair we've had requests, particularly from the end of the chamber, for senators to be able to hear both questions and answers. I will ask all senators to respect their colleagues and restrain themselves from interjections. Senator Fifield.
Senator FIFIELD: As I was about to say, the majority of people in the United States who have broadband receive it over the HFC pay TV cable.
The PRESIDENT: Have you concluded, Senator Fifield? On a point of order, Senator O'Neill.
Senator O'Neill: There are only eight seconds remaining, and the minister still has not addressed the question I asked him: does the responsibility for the mess of the HFC rollout rest solely in the hands of the Prime Minister? We haven't gone anywhere near that.
A government senator interjecting—
The PRESIDENT: Order—on my right, on this occasion.
An opposition senator interjecting—
The PRESIDENT: Now on my left—order! Senator O'Neil, the minister was being directly relevant to the question. I would ask senators, when they raise a point of order on direct relevance, to find more creative ways to bring attention to it rather than simply restating the question, which is not in order. Senator Fifield, in conclusion.
Senator FIFIELD: I should indicate that a large number of people in HFC areas on the pre-NBN network can access broadband over the HFC.
Schools
Senator WILLIAMS (New South Wales—Nationals Whip in the Senate) (14:13): My question is to the Minister for Education and Training, Senator Birmingham. Can the government provide an update on the latest student enrolment census and student characteristics and the consequent impact on school funding over the next 10 years?
Senator BIRMINGHAM (South Australia—Minister for Education and Training) (14:13): I thank Senator Williams for his question and his continued interest in school funding, particularly in New South Wales and especially in rural and regional communities of New South Wales. I'm pleased to inform the Senate that updated figures, as of 17 November, which take account of the latest 2017 school census data, demonstrate that over the next decade there will be record funding to Australian schools from the Commonwealth totalling $250 billion. That's $250 billion! That is an increase, going into next year, over the next decade of some $25.3 billion over and above what last year's or previous years' budget projections had forecast.
It's a demonstration that our needs based funding formula is providing growing investment in Australian schools, investment that will grow from some $1½ billion this year in 2017 to some $31 billion by 2027. That is strong growth well above any rate of inflation. It continues a trend of the federal government enhancing investment in our school system, even while states and territories have neglected those school systems. From 2005-06 to 2014-15, federal funding grew by 72 per cent in real terms, while state and territory funding only grew by 9.4 per cent. Sometimes that state and territory funding even went backwards—I think of the period around 2010 in the state of New South Wales when state funding for their schools declined by some $316 million. Who was the Premier of New South Wales in 2010 when funding was cut to New South Wales schools by the New South Wales government? That's right, it was Premier Kristina Keneally, who is now the Labor candidate for Bennelong. She now wants to talk about school funding endlessly, but when she had the chance to do so, she cut school funding. (Time expired)
The PRESIDENT: Senator Williams, a supplementary question.
Senator Cameron: $26 million—
The PRESIDENT: Can we at least hear the question, Senator Cameron.
Senator Cameron interjecting—
Senator Williams: I wish the President would tell you to be quiet, Senator Cameron.
The PRESIDENT: Senator Cameron, please, can we hear the question.
Senator WILLIAMS (New South Wales—Nationals Whip in the Senate) (14:16): He's like a scratched record, isn't he? Can I ask the minister to explain to the Senate the impact on the Catholic sector in New South Wales in terms of overall funding growth?
Senator BIRMINGHAM (South Australia—Minister for Education and Training) (14:16): I know there's been some particular commentary around Catholic schools funding, and I want to make sure that the facts are clear and reassurance is provided that in New South Wales funding for the Catholic education system will grow by an average of some 4.1 per cent on a per student basis over the next few years. This will see, over the course of the next decade, total funding grow by some 50 per cent. That's up from a previous estimate of 47.8 per cent. Funding for New South Wales Catholic sector will now be some $24.3 billion over the next decade, a further increase of $163 million compared with the previous estimates as recently as June. In per student terms, the Catholic sector in New South Wales will remain the highest funded sector of all with, ultimately, funding growing from $8,700 this year to some $12,700 per student by 2027.
The PRESIDENT: Senator Williams, a final supplementary question.
Senator WILLIAMS (New South Wales—Nationals Whip in the Senate) (14:17): I thank the minister for that good news. Can the minister inform the Senate about growth in the funding for students with disabilities across sectors and states?
Senator BIRMINGHAM (South Australia—Minister for Education and Training) (14:17): Because it's a needs based formula, there is particular additional assistance for the students who need it most and, importantly, for students with disability. Total Commonwealth funding for students with disability will be some $22.7 billion over the next decade. That's an increase over time of $1 billion compared with previous estimates. We will see strong growth in the disability loading from the Commonwealth during that time. It will grow by 33½ per cent over four years and by 83½ per cent over 10 years. We'll see strong growth in the state of New South Wales as well, and it will be aligned better to student needs. The utilisation of the Nationally Consistent Collection of Data on School Students with Disability will ensure that students with the highest need and the highest level of adjustment assistance get the greatest level of support, because that's what a needs based system does and, importantly for students with disability, it ensures the greatest support goes to those who have the greatest need.
DISTINGUISHED VISITORS
The PRESIDENT: Before I proceed to the next question, I'd like to draw the attention of senators to the central gallery behind the government, where we have top graduating students from the Indonesian service Command and Staff College on a visit to Australia to engage with their ADF counterparts. On behalf of the Senate, welcome to parliament and, particularly, to the Senate.
Honourable senators: Hear, hear!
QUESTIONS WITHOUT NOTICE
Queensland State Election
Senator WATT (Queensland) (14:19): My question is to the Minister for Resources and Northern Australia, Senator Canavan. This week, the minister sought to distance the federal National Party from the Queensland election result, saying, 'We have a separate Nationals party room and we will have a separate Nationals campaign.' Is the Liberal Party brand under Mr Turnbull so bad that the National Party needs to distance itself from the Liberal Party?
Senator CANAVAN (Queensland—Minister for Resources and Northern Australia) (14:19): The answer to that is no. We are proud at the federal party level that we have a separate party room here in Canberra. We have achieved great results for regional Australia. We do have a policy for Central Queensland—to build Rookwood Weir and to create jobs in the Galilee Basin—unlike the Labor Party, who have deserted the interests of Central Queensland. We will be proudly standing by our record at the federal election as Nationals.
I think why those on the other side take a unique and special interest in the National Party in this place is because they're jealous; they're just a little bit jealous. They all want to be secret Nats at heart. They would all love the freedom that my colleagues have to bark and voice their opinion. But these guys are little kelpies tied to their Labor ute! When the Labor ute moves away, the little kelpies have to run along—they can't bark; they are muzzled; they can't say anything. They all want to be over here. It's unfortunate you can't be, Senator Watt. But we're always willing to take applications from people who have seen the light, who would like to stand up and actually have an independent voice for those in regional Queensland.
I am proud about the fact that we do fight for those who don't necessarily have a loud voice in this place. We have 226 people across this chamber and the other place, and there's not many of us who come from regional Australia. All of us here do. We're a little corner and we have to fight from that corner. We fight for the regions. That's why we're passionate about delivering dams. It's why we're passionate about building new industries in regional Australia. It's why we're passionate about supporting those wealth-producing industries of our nation like our mining sector, our agricultural sector, our forestry sector and our fishing sector. We will stand up for these people and we'll continue to do so as long as we're here.
Government senators interjecting—
The PRESIDENT: Order on my right. I won't call Senator Watt until there's some degree of silence and capacity to hear him. Senator Watt, a supplementary question.
Senator WATT (Queensland) (14:22): I can assure the minister that I'm not jealous of running fourth in his own home town of Rockhampton, like his party did on the weekend. I refer to the minister's comments, 'I do think we need to do a better job in Queensland of marketing and selling what we do here in Canberra.' Has the minister raised his concerns with the Prime Minister about the Turnbull government's performance in Queensland?
Senator CANAVAN (Queensland—Minister for Resources and Northern Australia) (14:22): Of course, I've spoken with my colleagues about what we need to do in response to the Queensland election. I take the preamble there too. Yes, we may have come fourth, but the Labor Party has probably lost the seat of Rockhampton for the first time in history. That's no record to be proud of. They deserted you, Senator Watt. You have no policies for Rockhampton. Your own candidate didn't know anything about the Rookwood Weir. He couldn't answer a question about it—it was embarrassing. The people of Rockhampton have worked you guys out. You take them for granted. You think you don't have to do anything for them and, finally, they've worked out that there other choices on the ballot paper.
I think Senator Watt's a little jealous. We have got a Christmas party next week and he's welcome to come along too. I'm extending a personal invite to Senator Watt: come to our Christmas party and see if you like the feel of the party room. We may be able to take you in next year!
The PRESIDENT: A final supplementary question, Senator Watt.
Senator WATT (Queensland) (14:23): I have some standards when it comes to the Christmas parties that I go to. Is the minister's fellow regional Queenslander, Senator Ian Macdonald, right to say earlier today:
There's no doubt about it—Malcolm is not seen as representing people in northern and regional Queensland.
Senator CANAVAN (Queensland—Minister for Resources and Northern Australia) (14:23): No, I don't believe my colleague Senator Macdonald is correct. As I said on the night of the election, and to be serious and substantive about this issue, Senator Watt, there is a level of anxiety and disillusionment in regional Queensland that is connected with the fact that it has been very tough economic times for the last couple of years. I very much think the takeaway from any election result is not to return to Canberra or Brisbane or anywhere else and start talking about leadership. What we've got to do for the people of all of Australia, but particularly those hurting in regional Queensland, is redouble our efforts to solve the problems that exist in their lives.
Senator Watt, I do congratulate you on the fact that it looks like the Labor government have been re-elected in Queensland, and I will commit to working with them to get things going in regional Queensland. Let's hope that, post the election, we can work together on things like the Rookwood Weir and the Townsville port widening and hopefully get the Galilee Basin open as well.
International Day of People with Disability
Senator STEELE-JOHN (Western Australia) (14:25): My question is directed to Senator Fifield, representing the Minister for Social Services. As I hope you know, this Sunday, 3 December, is the 25th International Day of People with Disability, with the overarching principle being to 'leave no-one behind'. Given the unemployment rate for people with a disability in Australia ranks 21st out of the 29 nations of the OECD and that only 53 per cent of Australians with a disability are employed compared with 83 per cent of all working-age people, what is your plan for getting people with a disability into stable employment rather than continuing to leave them behind?
Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications, Minister for the Arts and Acting Minister for Regional Communications) (14:26): Thank you, Senator Steele-John, for your question. I well recall from my period as the minister for disabilities that, if you were an Australian with a disability, you were twice as likely as other Australians to be unemployed. There are a number of things that the government is doing to help improve the levels of employment of people with disability. I should obviously at the outset mention the National Disability Insurance Scheme. Although it is not an employment scheme per se, the supports that the NDIS gives individuals, which are matched with the needs that they have, will put many Australians in a better position to consider entering the workforce and to do so. That can be from some very straightforward things, Mr President, that you and I might take for granted but which can be impediments to people engaging in the workforce.
That's at a general level. More specifically, the government has the Disability Employment Services Reform, and in the 2017-18 budget we included a comprehensive package that includes significant reforms to the DES to help more people to keep and find jobs. The government will continue to invest over $3 billion in the DES over the budget and the forward estimates. These reforms follow extensive sector consultations in 2015 and 2016 and seek to improve the overall performance of the program through which currently around one-third of participants remain employed three months after a period of assistance. But, clearly, we do want to do better.
The PRESIDENT: Senator Steele-John, a supplementary question.
Senator STEELE-JOHN (Western Australia) (14:28): The low employment rate of people with disability in Australia means that one in two Australians with disability live in or near a state of poverty. With Australia ranked last out of the 27 nations of the OECD for people with disability living in poverty, I ask the minister how he would justify Australia falling so far behind the rest of the world in terms of poverty and supporting people with disability.
Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications, Minister for the Arts and Acting Minister for Regional Communications) (14:28): Thank you, Senator Steele-John, for the supplementary question. I don't think that there's anyone in this chamber who would be or could be satisfied by the rates of unemployment for Australians who have disability. The best way to address the situation that people find themselves in—
Senator Steele-John: Mr President, on a point of order: I welcome the fact that the minister feels sad about the issue, but I asked him what he would do not how he felt.
The PRESIDENT: Senator Steele-John, I do consider the minister to be answering the question as asked. I cannot direct the minister how to answer a question, and I call the minister to continue his answer.
Senator FIFIELD: I wasn't indicating anything about feeling. I was making the policy-related point that, as a government, we are not satisfied with the level of unemployment, and I know there wouldn't be a colleague in this place who was. As I was about to say, the best thing that any government can do for someone with a disability who is unemployed—or someone, whoever they are, who is unemployed—is to help create the circumstances for them to have a job.
The PRESIDENT: Senator Steele-John, a final supplementary question.
Senator STEELE-JOHN (Western Australia) (14:30): If a young person living with a disability can effectively represent their state here in the Australian Senate, surely you can see the value in getting more people like me into employment across the country?
Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications, Minister for the Arts and Acting Minister for Regional Communications) (14:30): There's absolutely no debate on that point, which is why, from 1 July, the reforms that we'll be introducing will improve participant choice and control through the DES, engendering competition and contestability in service delivery, improving incentives for providers to place jobseekers in employment, and introducing indexation to provider payments and a trial of expanded DES eligibility for students in the last year of school. Obviously, we do have arrangements in place for the disability support pension, as that is there as a provision for people who do not find themselves in a situation where they can obtain work. But we have the disability support pension, the DES program and the National Disability Insurance Scheme. We always want to work to improve and refine these arrangements so that we can see more Australians with disability in work.
Western Australia: Goods and Services Tax
Senator GICHUHI (South Australia) (14:31): My question is to the Minister for Finance, Senator Cormann. The Productivity Commission's October draft report, Horizontal Fiscal Equalisation, HFE, has considered a new GST distribution model. This would give Western Australia an additional $3.24 billion per annum. Every other state in our federation loses as follows: New South Wales, $1.17 billion; Victoria, $920 million; Queensland, $729 million; South Australia, $256 million; Tasmania, $77 million; ACT, $60 million; Northern Territory, $36 million. Given that HFE aims to give each of the states and territories an approximate level of service to their citizens, can the minister explain whether a different model has been considered to help Western Australia adjust its volatile— (Time expired)
The PRESIDENT: Order! Senator Gichuhi, the time has expired to ask the question. I'll ask the minister to answer as much of the question as he heard.
Senator CORMANN (Western Australia—Minister for Finance and Deputy Leader of the Government in the Senate) (14:32): I thank Senator Gichuhi for that question. The first point I would make is that the Productivity Commission, under its legislation, has to conduct its inquiries—and this inquiry focuses on the Australian community as a whole—which it is doing. Horizontal fiscal equalisation is a fundamental part of Australia's federation architecture and affects all states. It's important for all states and for the country as a whole that horizontal fiscal equalisation works effectively and supports our national economy appropriately. The terms of reference issued to the Productivity Commission specifically task it with considering the effect of horizontal fiscal equalisation on productivity, economic growth and budget management for all states and for Australia as a whole.
In relation to the way GST-sharing arrangements impact on Western Australia, it's a matter of public record that the Australian government considers that Western Australia's share of the GST, which was below 30 cents in the dollar at some point, is inappropriately low. This is why the Australian government has provided one-off top-up payments for three years in a row now to ensure that the effective share of GST doesn't drop below the 2014-15 level. The federal government has invested about $1.2 billion in additional funding in Western Australian infrastructure in that context.
But we've also said there is a need for a longer-term structural solution. The Prime Minister has suggested that, through COAG, at the right time in the future, a floor be considered. We've also initiated this inquiry through the PC. The report you mention is a draft report. There is no government position on it. The final report is due to come out in the new year, and the government will consider any findings and recommendations at that time and make decisions at that point. At this point, there is no government position in relation to a draft report.
The PRESIDENT: A supplementary question, Senator Gichuhi.
Senator GICHUHI (South Australia) (14:34): South Australia continues to suffer from challenging socioeconomic issues such as a high unemployment rate, a low workforce participation rate, an ageing population, high costs and strain for business, the lowest overall NAPLAN results and a brain drain, among other things. What measures would be put in place to cushion my state against a possible impact of the proposed change?
Senator CORMANN (Western Australia—Minister for Finance and Deputy Leader of the Government in the Senate) (14:35): Firstly, there is no government proposal for change. Secondly, in relation to South Australia, the unemployment rate in South Australia today is lower than it was when we came into government, and indeed it's materially lower than where it was headed. The unemployment rate in September 2013 in South Australia was six per cent. It's now 5.8 per cent. And, as I say, in September 2013 the trajectory was up. We're now working to bring it down. The best way to continue to support strong growth and jobs and opportunity in South Australia is to continue to implement the Turnbull government's plan for jobs and growth, which includes lower business taxes, a commitment to more free trade and a massive investment in our defence industry capability, which, very significantly, is going to be built and developed by South Australian business. The Turnbull government's approach when it comes to strengthening growth and strengthening job opportunities in South Australia is very strong, and there is, of course, more work to be done. (Time expired)
The PRESIDENT: Senator Gichuhi, a final supplementary question.
Senator GICHUHI (South Australia) (14:36): The report also finds that HFE now embodies an undeliverable ideal to give states the same financial capacity to provide reasonable levels of service. In the context of South Australia, which is one of the poorest states in the Federation, how would the Commonwealth Grants Commission effectively determine these levels of service?
Senator CORMANN (Western Australia—Minister for Finance and Deputy Leader of the Government in the Senate) (14:36): As I've indicated, the report that Senator Gichuhi is referencing is a draft report. The Productivity Commission is currently consulting on its draft report and will refine its recommendations and consider appropriate options for any transitional arrangements for its final report. I'm advised that the Productivity Commission work will include further consideration of what constitutes a reasonable level of services, and the Commonwealth Grants Commission, of course, is an independent body and I cannot comment or speculate on its internal processes or the outcomes of the final report. As is the normal process with draft reports, we will let the Productivity Commission complete its independent work before considering the final report, its findings and its recommendations, as a government, and at that point in time we will provide a response, which no doubt will be discussed in the Senate at that time.
Banking and Financial Services
Senator KETTER (Queensland) (14:37): My question is to the Minister representing the Prime Minister, Senator Brandis. I refer to the minister's statement yesterday that a royal commission into the banks will take forever and achieve nothing. Can the minister rule out the Turnbull government's support for a royal commission or a commission of inquiry into the banks?
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:38): I explained yesterday why it is not the government's policy to have a royal commission into the banks. If you'd been listening—as I'm sure you were, Senator Ketter—to the question Senator Georgiou asked me yesterday, he pointed out himself that, since the GFC, there have actually been 17 separate inquiries into the banking system, parliamentary inquiries and other inquiries, and the government has been very, very active in implementing the recommendations of those inquiries; in particular, giving effect to the recommendations of the Ramsay review, looking at legacy cases of banking misconduct. The point I made to the chamber yesterday and I make again today is that, if we had adopted the Labor Party's view that there should be a royal commission, then it would still be going, because these royal commissions go for years. They report at the end, and aggrieved customers would have years to wait before they got any relief, years to wait before they got any compensation or recompense, as they are getting now as a result of the much more immediate steps that the government has taken. The Ramsay review is only one of the many—
The PRESIDENT: Point of order, Senator Wong.
Senator Wong: The point of order is direct relevance. The question asked the minister to rule out the government supporting a royal commission or a commission of inquiry. He hasn't actually answered the latter part of the question.
The PRESIDENT: I consider that the minister is relevant to the question. I cannot direct the minister to respond in the way a questioner may like.
Senator BRANDIS: Let us accept the position that is common between both sides of the chamber. There have been instances of misconduct by the banks. Some of those instances have been egregious. They should be redressed. So the question is: what is the most effective, immediate and useful form of redress? It's the government's view that, because of the cost and length of a royal commission, a royal commission is not the most useful and immediate form of redress.
The PRESIDENT: Senator Ketter, a supplementary question.
Senator KETTER (Queensland) (14:40): Media reports indicate that Senator O'Sullivan is willing to let the government take control of the process for a commission of inquiry into the banks. Has the Prime Minister or his office spoken to or met with Senator O'Sullivan in relation to his proposal?
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:41): Senator Ketter, I don't know what Senator O'Sullivan's arrangements are and who he speaks to. Senator O'Sullivan is a very industrious senator and he speaks to many colleagues. But, Senator Ketter, you asked about a commission of inquiry. I've explained to you why—in redressing the problem that the government, like the opposition, acknowledges is a matter of legitimate public concern—a royal commission is not the best mechanism or vehicle to deal with that problem.
The PRESIDENT: A final supplementary question, Senator Ketter.
Senator KETTER (Queensland) (14:41): Can the minister guarantee to the Senate that the coalition's junior partner, the Nationals, will continue to back Prime Minister Turnbull's opposition to a commission of inquiry into the banks?
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:41): I can tell you what the policy of the government is. As I've told you at length, the government's policy is not to have a royal commission, because a royal commission is not the most effective, immediate or efficacious way to deal with this problem. The most effective way to deal with this problem is to do what the government has already done—particularly, for example, through Professor Ramsay's review. Now, I acknowledge that there are a variety of views across the chamber in relation to this matter, but I've explained to you why the government has adopted the view that it has.
Medicare
Senator DUNIAM (Tasmania) (14:42): My question is to the Minister representing the Minister for Health, Senator Fierravanti-Wells. Will the minister outline to the Senate the Turnbull government's ongoing commitment to Medicare-funded services?
Senator FIERRAVANTI-WELLS (New South Wales—Minister for International Development and the Pacific) (14:42): I thank Senator Duniam for the question. The Turnbull government has a rock-solid commitment to Medicare. We are committed to ensuring all Australians have access to high-quality health care. Only this week, the Minister for Health announced that more Australians than ever have been seeing their GP without paying and that bulk-billing rates for GP consultation nationally are up to almost 86 per cent. That's a lot higher than the 82 per cent when you lot were last in government. Of course, let me use an example: in the seat of Bennelong, the billing rates are 88.5 per cent. Notwithstanding this level, that hasn't stopped Bill Shorten, the Leader of the Opposition, and his girl, Kristina Keneally, going out there, pushing lies about Medicare. Of course, that's not the only lie.
The PRESIDENT: Senator Hanson-Young, on a point of order.
Senator Hanson-Young: I ask the minister to reflect on the wording 'his girl'. I'm not sure it's appropriate.
The PRESIDENT: A request of a minister is not necessarily a point of order.
Senator FIERRAVANTI-WELLS: Senator Hanson-Young, considering they were the words that Bill Shorten used the other day, I'm only quoting him. Instead of coming in here with crocodile tears, you ought to read the news a little bit more.
Recently, we saw her allegedly telling us that she had to wait for more than an hour at the Medicare office in Top Ryde. Fact: data from the Department of Human Services showed that, in the week before the October long weekend, there was not a single person who waited over an hour at the centre for that week she claimed that she had an hour-long wait on. Not one person. The average wait was 13 minutes. And this is, of course, on top of the other lie that she's been telling us about the closing down of the Eastwood Medicare office. That was a decision of the former Labor government in 2009. (Time expired)
Honourable senators interjecting—
The PRESIDENT: Order on my left! Senator Dastyari, Senator Collins, Senator Cameron—we can go through the alphabet backwards! Senator Duniam, a supplementary question?
Senator DUNIAM (Tasmania) (14:45): What a great answer, and I thank the minister for it. I wonder, will the minister update the Senate on the government's record investment in Medicare?
Senator FIERRAVANTI-WELLS (New South Wales—Minister for International Development and the Pacific) (14:45): Thank you, Senator Duniam. The coalition, of course, is investing more than ever in Medicare. Funding has gone up from $23 billion to $28 billion in 2020-21. But, of course, Senator Duniam, I do want to go back to Bennelong and the Eastwood Medicare office.
Opposition senators interjecting—
Senator FIERRAVANTI-WELLS: This was a decision of the former Labor government. They took the decision to co-locate Centrelink offices—
The PRESIDENT: Senator Fierravanti-Wells, please resume your seat. Senator Reynolds, on a point of order.
Senator Reynolds: I'm sitting right behind the minister, and I cannot even hear her response. Those opposite might not want to hear great news about Medicare, but those on this side do.
The PRESIDENT: I will ask senators to once again respect the requests of their colleagues to be able to hear questions and answers.
Senator FIERRAVANTI-WELLS: As I was saying, it was you lot that took the decision to co-locate Medicare and Centrelink offices. Before we took government, Labor closed down 128 Medicare offices. And who was the architect? The former Minister for Human Services, Chris Bowen. But, as far as lying is concerned, what else do you expect from somebody who was a puppet of Eddie Obeid and Joe Tripodi. (Time expired)
Honourable senators interjecting—
The PRESIDENT: Order! Senators Watt and Dastyari, some tolerance for political combat is understood, but could we please get on with question time? Senator Duniam, a final supplementary question?
Senator DUNIAM (Tasmania) (14:47): Is the minister aware of any risks to Medicare?
Senator FIERRAVANTI-WELLS (New South Wales—Minister for International Development and the Pacific) (14:47): Yes, I do, and it's those opposite, Mr President. It's Labor's Medicare freeze. Never forget that it was the Labor government who introduced the Medicare freeze in 2013. In fact, the member for Sydney, Tanya Plibersek, was the mother of the freeze. The Turnbull government, however, is removing the freeze. We have committed a billion dollars to our doctors and patients by restoring indexation of Medicare rebates. Those opposite, you can bleat as much as you like, because you have no Health record. When you were in government—six years of fiscal vandalism—what did you give us? What did you give us in Health? You gave us 10 new bureaucracies and 27 per cent more staff in the Department of Health. You faked Medicare cards. That's your idea of policy. And then you spend time— (Time expired)
Honourable senators interjecting—
The PRESIDENT: Order on my left! Senator Sterle, Senator Polley, Senator Carr—
Senator Sterle: Mr President, throw me out!
The PRESIDENT: Senator Sterle, a power not granted to me by the numbers in the Senate. Before I call Senator Hinch, I ask colleagues to recall that, on more than several occasions, Senator Hinch has asked that there be some degree of silence so that he may hear the proceedings of question time.
National Disability Insurance Scheme
Senator HINCH (Victoria) (14:49): My question is to the Minister representing the Minister for Social Services, Senator Fifield. We've done some sums and worked out that $180 million could fund nearly 1,000 full-time carers for five years for people with disabilities. That's the amount of NDIS money that your government has spent on a dozen different consultants and contractors over the past 16 months—nearly $200 million. Why? What the hell was it spent on, who authorised it and why did the Public Service need such expensive outside advice anyway?
Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications, Minister for the Arts and Acting Minister for Regional Communications) (14:50): I think colleagues would appreciate that the NDIS is a multibillion-dollar project—at full rollout it will be a $22 billion-a-year scheme. One of the things that the NDIS does not do is directly employ people who are engaged in the work of providing care and support. That is something which is funded through the individual packages that NDIS participants have. They direct that funding to the support staff of their choice. The NDIS is also aiming to not have a terribly large direct workforce of its own. As Senator Hinch would appreciate, they undertake planning activities and other functions to make the scheme work, so there has been a need to engage consultants across a range of activities—and recognising that the NDIS is, in effect, a start-up, that it is bringing together responsibilities which have rested with the states and with the Commonwealth. It is a massive venture. It is a massive exercise. Given this is something, as I say, that is a start-up, there has been the need to engage consultancy services across a range of areas of the organisation's activity.
The PRESIDENT: Senator Hinch, on a supplementary question?
Senator HINCH (Victoria) (14:51): Senator Fifield, despite all that money being poured into fixing the rollout issues—$180 million; a thousand carers for five years—complaints about the NDIS are up 700 per cent in the past 12 months. Is this another NBN? When can the Australian public expect your government to get the NDIS rollout right?
Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications, Minister for the Arts and Acting Minister for Regional Communications) (14:52): I thank Senator Hinch for his supplementary question. In terms of complaints about the NDIS, as the NDIS is rolling out progressively throughout the nation, as the NDIS assumes responsibility from state jurisdictions and as the number of NDIS participants increases over time, starting a couple of years ago at zero and rising ultimately to about 460,000 people, you will see a commensurate increase in the number of complaints. The NDIS—or I should say the federal government, on behalf of all jurisdictions—is going to be putting in place a quality safeguards framework, which will cover complaints. But obviously, in this area, we would not want to see any complaints.
The PRESIDENT: Senator Hinch, do you have a final supplementary question?
Senator HINCH (Victoria) (14:53): Mr President, as I told your predecessor, unlike in the other place we have these time-wasting supplementary questions, especially stupid government PR dorothy dixers, and I forfeit that time in protest.
The PRESIDENT: You have made that point to me as well, Senator Hinch.
Queensland State Election
Senator WONG (South Australia—Leader of the Opposition in the Senate) (14:53): My question is to the Minister representing the Prime Minister, Senator Brandis. The minister yesterday told the Senate that 'flirting with One Nation is poison for my side of politics'. Why then did the Prime Minister fail to follow former Prime Minister Howard's lead and prevent the LNP from preferencing One Nation in 49 seats at Saturday's election?
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:54): Senator Wong, what a champion of chutzpah you are—for a question like that to come from you, of all people, Senator Wong, whose government apparently has been re-elected in Queensland on One Nation preferences. Let that never be forgotten, Mr President. There's one reason, and one reason only, that it appears that the government of Annastacia Palaszczuk have been re-elected in Queensland, and that is that they took a number of seats in metropolitan Brisbane from the LNP by receiving One Nation preferences.
Senator Wong: Point of order: I know Senator Brandis is very upset about the result, but my question related to preferences and the decision of his party to preference One Nation in 49 seats. Why did the Prime Minister not prevent that?
The PRESIDENT: On the point of order, I can't direct the minister how to answer the question. I remind him, as Senator Wong just did, of the question itself. The minister has a minute and 14 seconds remaining.
Senator BRANDIS: Senator Wong, for someone who is in government in Queensland today through One Nation preferences, I think you are the last person to be asking that question. In particular, as I pointed out to you yesterday, Senator Wong, it's all very well what your public position may have been, but what the position of your booth workers was throughout Queensland was to whisper into the ears of voters, 'Put the LNP last; vote One Nation before you vote LNP.' That's what they said.
In relation to preferences, no deals were done. No deals were done between the LNP and the One Nation party. They shouldn't have been and they weren't. In relation to the events of 1998, which you appear to be referencing, Senator Wong, I was a member of the Liberal Party executive in 1998, and I can tell you that the historical observation you've made is inaccurate.
The PRESIDENT: Senator Wong, on a supplementary question.
Senator WONG (South Australia—Leader of the Opposition in the Senate) (14:56): The LNP member for Dawson, Mr Christensen, has apologised to One Nation voters following the LNP's disastrous performance in the Queensland election. Does the Prime Minister agree the LNP needs to be more like One Nation?
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:56): Well, Senator Wong, no, he does not. And as you perfectly well know if you had seen his observations yesterday—which, of course, you did—he is of the opposite view. He is of the opposite view. And, Senator Wong, I think it shames you, if I may say so. I think it really shames you, Senator Wong, that you would make that insinuation against the Prime Minister, of all people, whose views on this matter could not be more clear.
The PRESIDENT: Final supplementary question, Senator Wong.
Senator WONG (South Australia—Leader of the Opposition in the Senate) (14:57): If the Prime Minister's views are so clear, will he learn the lessons of Western Australia and Queensland, show some leadership and make a decision to put One Nation last federally?
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:57): The Prime Minister has shown very clear and very strong leadership on the question of One Nation and the question of One Nation preferences, and you will find, Senator Wong, that on this view the Prime Minister's views and mine are identical.
Australian Broadcasting Corporation
Senator PATERSON (Victoria) (14:58): My question is to the Minister for Communications, Senator Fifield. What is the government's response to yesterday's announcement by the ABC's triple j that its Hottest 100 countdown will no longer be held on Australia Day, 26 January?
Opposition senators interjecting—
The PRESIDENT: Order on my left! Order on my left!
Honourable senators interjecting—
The PRESIDENT: Order! I'm not going to call the minister until there is some semblance of order.
Senator Dastyari interjecting—
The PRESIDENT: Senator Dastyari!
Senator Watt interjecting—
The PRESIDENT: Senator Watt, you've had a pretty free run this question time. Senator Watt, order!
Senator Dastyari interjecting—
The PRESIDENT: So have you, Senator Dastyari.
Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications, Minister for the Arts and Acting Minister for Regional Communications) (14:58): I am sorely tempted to break into song, but I'll be strong! I regret to say that Senator Paterson is correct. Yesterday, the ABC's triple j did announce that the Hottest 100 will no longer be held on Australia Day—shame! For the last 20 years, the Hottest 100 has counted down on Australia Day. It's been the soundtrack for Australia Day. The decision taken by the ABC to remove the Hottest 100 from Australia Day is, quite frankly, bewildering. It is one that the government does not support. We recognise, obviously, that Australia Day and its history can be complex for some Indigenous Australians, and it's right and proper that those views will be covered on the ABC. But the fact is the overwhelming majority of Australians support 26 January as Australia Day. It's a day that we celebrate. It's a day that unites us. 26 January is our national day. That's my view. It's the view of all my colleagues on this side of the chamber. It's the view of the overwhelming majority of Australians.
Let me make clear on behalf of the government that the date of Australia Day will not be changing. triple j and the ABC should respect that fact. triple j and the ABC should not be inserting themselves into political debates by taking decisions like this.
The PRESIDENT: Senator Paterson, on a supplementary question.
Senator PATERSON (Victoria) (15:00): For the information of senators, I am more of an EDM man and they don't play that as often as I'd like on triple j. I'm sure, based on my—
Senator Kim Carr interjecting—
The PRESIDENT: Order on my left. Senator Carr.
Senator Brandis interjecting—
Senator PATERSON: Senator Brandis asked, 'What's that?' Electronic dance music, Senator Brandis.
The PRESIDENT: I'd urge you to get to your question, Senator Paterson.
Senator PATERSON: Can the minister outline the reasons triple j has given for this decision and what is the government's response?
Opposition senators interjecting—
The PRESIDENT: Order on my left. I will call the minister when there is silence. Senator Dastyari and Senator Carr, you've been quiet for a while but you're interjecting a bit over the top now.
Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications, Minister for the Arts and Acting Minister for Regional Communications) (15:01): triple j has stated, 'We all agreed that the Hottest 100 shouldn't be part of a debate about the day it's on.' Yet, by their very actions, triple j and the ABC have inserted themselves as participants at the very centre of this debate. The ABC and triple j should not be putting themselves in a position where their programming decisions are seen as making loud political statements. triple j has pointed to two surveys that they conducted of their listeners, but the ABC and triple j have a broader responsibility than to just one market segment. They have a broader responsibility to the entire Australian people who render in excess of $1 billion a year to the organisation. Poll after poll demonstrates public support for Australia Day as 26 January. The ABC should respect that.
The PRESIDENT: Senator Reynolds?
Senator Reynolds: On a point of order.
Senator Cameron interjecting—
The PRESIDENT: Senator Cameron, can I hear Senator Reynolds on a point of order?
Senator Reynolds: Sorry, I was going to stand up for a point of order before the minister stood up. I want to refer you to comments Senator Carr made about Senator Paterson goose stepping. I think that the connotations of that to Senator Paterson are highly inappropriate. I ask you to ask him to withdraw it.
Senator Kim Carr interjecting—
Senator Reynolds: That wasn't the context he said it in.
The PRESIDENT: I did not hear the comment the first time, but I think I heard it upon it being repeated. I don't think that is necessarily considered unparliamentary but, Senator Carr, you have been requested to withdraw.
Senator Kim Carr: If it causes offence to the senator, I'll withdraw it.
The PRESIDENT: Thank you, Senator Carr. That facilitates the operation of the chamber. Senator Paterson, on a final supplementary question.
Senator PATERSON (Victoria) (15:03): Can the minister inform the Senate what action the minister has taken to raise the government's concern with the ABC?
Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications, Minister for the Arts and Acting Minister for Regional Communications) (15:03): As colleagues would know, the ABC has legislated independence with regard to programming decisions and the ABC board has ultimate responsibility for these matters. However, I have written to the chair of the ABC to ask that the board reconsider and reverse this decision. It will be a matter for the ABC board to determine, but the government's view is that they ought to recognise the overwhelming view of Australians on this issue. As I've said, the Hottest 100 is the soundtrack of Australia Day. It's a popular and recognised feature of Australia Day. Australia Day is 26 January. It will remain so, and the ABC should recognise and respect that fact.
Senator Cameron interjecting—
The PRESIDENT: Senator Cameron, do you want me to call your colleague before the clock keeps ticking?
Women's World Cup
Senator FARRELL (South Australia—Deputy Leader of the Opposition in the Senate) (15:04): My question is to the Minister representing the Minister for Sport, Senator Fifield. In September, Minister Hunt's department said that FIFA and the Football Federation of Australia governance issues would influence his decision on an extra $4 million of funding promised for Australia's bid to host the 2023 Women's World Cup. Media reports today say Minister Hunt last week told a women's football forum that FIFA intervention in those governance reforms would threaten that bid. Can the minister confirm that Minister Hunt has made it clear that FIFA intervention would jeopardise that $4 million of support?
Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications, Minister for the Arts and Acting Minister for Regional Communications) (15:05): The Australian government has provided FFA with funding of $1 million to undertake preparatory work to bid to host the 2023 FIFA Women's World Cup in Australia. The profile of women's sport, as we all know, is on the rise in Australia. The Australian women's national football team, the Matildas, are performing at a world-class level and have enjoyed recent success against some of the best teams in the world, both at home and abroad. Hosting the FIFA Women's World Cup in Australia in 2023 presents an opportunity to inspire young women—
The PRESIDENT: Senator Fifield, resume your seat. Senator Farrell, on a point of order?
Senator Farrell: The minister's well into his answer. My question was a very simple one regarding whether the minister has made it clear that FIFA intervention would jeopardise $4 million worth of support.
The PRESIDENT: Senator Farrell, your question had a substantial preamble, as well, and I think the minister is relevant to the material you raised during your question. He has one minute and 24 seconds to get through as much of it as he can. Senator Fifield.
Senator FIFIELD: While supportive of this initiative, the government is taking a prudent two-stage approach to investing in the development of the bid. As the Prime Minister announced in June this year, additional funding of $4 million may be made available if the government is satisfied that there are reasonable prospects of success and that FIFA's bidding process conforms to the highest standards of probity. The government is aware that the FFA and its key Australian stakeholders are reviewing the composition of its congress. We're also aware that FIFA, through its Member Associations Committee, has also made comment on the FFA's governance arrangements. These are matters for FFA, as the recognised national sporting organisation for football in this country, to resolve. The government will give consideration to a range of matters in determining its position to further support an Australian bid.
The PRESIDENT: Senator Farrell, a supplementary question.
Senator FARRELL (South Australia—Deputy Leader of the Opposition in the Senate) (15:07): Given reports that FIFA could exclude Peru from the 2018 World Cup because of its government's interference, why is Minister Hunt risking the Socceroos' participation in the World Cup by making threats of government interference?
Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications, Minister for the Arts and Acting Minister for Regional Communications) (15:07): I have outlined the government's position.
The PRESIDENT: Senator Farrell, a final supplementary question.
Senator FARRELL (South Australia—Deputy Leader of the Opposition in the Senate) (15:07): I think there's a pattern of not answering questions, Mr President. Isn't the minister simply refusing the Football Federation's governance reforms as an excuse to pull $4 million of funding for women's sport in Australia?
Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications, Minister for the Arts and Acting Minister for Regional Communications) (15:08): I take what Senator Farrell said there as a monologue and as an editorial.
Senator Brandis: I ask that further questions be placed on the Notice Paper.
QUESTIONS WITHOUT NOTICE: TAKE NOTE OF ANSWERS
Queensland State Election
Senator WATT (Queensland) (15:08): I move:
That the Senate take note of the answer given by the Minister for Resources and Northern Australia (Senator Canavan) to a question without notice asked by Senator Watt today relating to the Queensland state election.
Haven't the last couple of days in Canberra been interesting? All of a sudden, we have seen a flurry of activity from each and every one of the Queensland National Party representatives who pretend to be part of a united party back in Queensland, the LNP. After years of silence and acquiescence as regional Australians and regional Queenslanders have been ignored or hurt by cuts made by the Abbott and Turnbull governments, all of a sudden those in this band of weak, lazy, ineffective representatives, particularly from Queensland, have almost—not quite, but almost—discovered their spines. We've seen this flurry of apparent independence and flurry of concern for the welfare of people in regional Queensland after years of silence and going along with what the Prime Minister, Mr Turnbull, and his predecessor, Mr Abbott, have done to regional Queensland.
You might ask why, after years of silence and doing nothing, we have all of a sudden seen this burst of independence and activity from the Queensland National Party representatives who come down here to Canberra. The answer is obvious: it is all about what happened on Saturday, 25 November, back in Queensland at the state election, where right around the state, but in particular in regional Queensland, the LNP vote absolutely collapsed. Clearly, if you look at the results, you can see that there was a slip in the Labor vote in some parts of Queensland—and we have work to do as well. But there has been a mass defection of LNP supporters to One Nation and to other parties right across Queensland but in particular in regional Queensland, to the point where right across Central Queensland—in the federal electorate of Capricornia where I'm the Labor duty senator—in every state seat in Capricornia the LNP didn't run first, didn't run second, at best ran third and, in some cases, came fourth. Perhaps that might be why, all of a sudden, the National Party representatives here in Canberra have almost, but not quite, discovered their spine.
So what have they done over the last couple of days? We've seen Senator Canavan out there saying that they've got their separate party room and they're going to run a separate campaign to the Liberal Party in Queensland. Today's front page of The Courier Mail talked about how all the Queensland Nationals were going to run under a separate banner—that they were going to run as Nationals and not LNP; that they were going to paint their election signs green, not blue; that they were going to drop the word 'Liberal' and drop Malcolm Turnbull's face off their posters; and that they were going to do all sorts of spin, advertising and rebranding to do everything they could to put distance between themselves and this failed Turnbull government. The problem for them is that the people of regional Queensland are not as stupid as the LNP think. They can see right through what the LNP are doing here. This is all about one thing, and that is about the LNP representatives from Queensland desperately trying to hang onto their own jobs. There's not an ounce of concern for the jobs of people in regional Queensland; it's all about them trying to preserve their own jobs.
Poor old Senator O'Sullivan, for weeks now, has been talking about maybe moving a motion about setting up an inquiry into the banks. This week he charged down to Canberra, beating his chest—he was full of blood and guts—and he was going to take it up to the Prime Minister and get that inquiry going. But we read today that, on the verge of getting it through, he's backed off—he's withdrawn his bill. That's how gutsy, that's how tough, that's how brave our Queensland National Party senators are. Just when they're on the verge of having a victory, they back off and roll over yet again to the Prime Minister and to the Liberal Party.
Whatever spin and whatever rebranding we might see from the LNP down here in Canberra and back home in Queensland, regional Queenslanders are going to see right through it. Whatever rebranding and whatever spin we see from Queensland Nationals, it is not going to make up for the years of selling out regional Queenslanders and letting them down. With every single thing that the Prime Minister and Mr Abbott before him have done that has hurt regional Queenslanders, the National Party have been right beside them, sending their votes and helping them get it through—and it doesn’t matter what it is. When Mr Turnbull cut Medicare, the Nationals voted for it. When they cut penalty rates, the Nationals voted for it. When they stopped the banking royal commission, the Nationals voted for it. When they gave millionaires a tax cut and gave nothing to middle-income earners, the Nationals vote for it. They are sell-outs and they are gone. (Time expired)
Senator ABETZ (Tasmania) (15:13): The Australian people rightly expect a lot better from their representatives in the national parliament than that which they just heard from Labor's Senator Watt. The Australian people are not interested in the petty politics of a state election result. What they want to know is that the federal parliament is determined to deal with the issues of job creation, for example. In the past year we have seen about 1,000 jobs per day being created in the Australian economy because the government is getting the settings right, which enables the private sector to gainfully employ our fellow Australians. They're the sorts of issues that the Australian people expect us in this parliament to be grappling with. But, of course, that is good news. That is getting a thousand people a day off welfare and into employment, making them self-reliant and capable of looking after not only themselves but their whole family unit. So what does the Australian Labor Party seek to do? Talk about anything else but job creation.
What about energy prices? They are a very real issue for job creation, for our manufacturers, for our pensioners and for household budgets. The Australian Labor Party don't want to ask questions about that. They don't want to take note in relation to those issues. Why? Because Labor have been abject failures in that area. That is why the Liberal-National Party government has come to grips with that issue and developed the National Energy Guarantee. These are the sorts of issues that the Australian people rightfully expect the federal parliament and its representatives to deal with.
I've been here for a while and I have seen the National Party in Queensland, right, wrong or indifferent, elect senators who have a mind of their own, be it Senator Ron Boswell or Senator Barnaby Joyce. Therefore, to falsely assert that independent thought amongst National Party senators from Queensland commenced from last Saturday is historically untrue. It is objectively untrue. It is not based on any fact other than somebody thinking they would be a smart alec and come into this chamber and gloat for five minutes over what they are expecting to be a Labor victory—a Labor victory in Queensland which will be based on One Nation preferences. Let's be quite clear on this. The Labor Party claim that they are cleaner and purer than the driven snow. But do you know how they crawl into government? They do it on the back of One Nation preferences and then seek to condemn us in relation to One Nation preferences. But I have been distracted by the nonsense put to us by Labor's Senator Watt from Queensland. They are not the issues that the Australian people actually want us to talk about—albeit the National Party from Queensland has a heritage of providing excellent senators who are independently minded and provide an extra dynamic to the coalition.
Unlike the Labor Party senators, we aren't all cookie-cutter trade union aficionados who think of the Senate as some sort of retirement place or a reward for having been a trade union official. This is about the serious business of government and developing public policy to ensure that the men and women of Australia are able to get jobs. A thousand of them a day are being created as we speak because we're getting the policy settings right. They're the sorts of things the Labor Party don't want to talk about, and I understand why: because of their dismal failure in their six years of government, which left a legacy of such high unemployment and so many bankrupt businesses. We on this side are focused on the real issues and are seeking to serve the Australian people to the very best of our ability to ensure that there is job creation, to ensure that there is the capacity to balance household budgets and to ensure that pensioners can use their air conditioners in summer.
Senator CHISHOLM (Queensland) (15:19): If the last couple of months have taught Australians anything, it is that there's no-one more in touch with middle Australia than Senator Abetz. That's so obvious. We've seen that time and time again, and I think we saw it with that contribution here today as well.
I do want to get onto the substantive issue, following my colleague Senator Watt, but I can't let Senator Fifield go past. I thought his performance today was quite interesting. He gets a question about thousands of people who are going to have their NBN rollout delayed, and he's nonplussed—he gives an answer, but he's not that fussed about it. He gets a question about the triple j Hottest 100 and he's all action. He's sending letters; he's demanding this; he's demanding that. I think that just shows you where they are at on that side of the chamber.
Senator Abetz tries to say they're focused on big issues. They spent more time today talking about the Hottest 100 and Australia Day than they did on energy issues or the important issues of the NBN. We also know that they spent the 24 hours after the election result in Queensland on Saturday saying, 'This doesn't have any federal implications,' yet they've all been talking about it a lot since. And the best thing is that there's no consistency about what happened. They're all divided. We know that they've got form on this, and it's hardly a surprise. Senator Brandis, to his credit—he's certainly been misleading on a lot of things, but we've come to expect that—accurately described One Nation: 'If you deal with them, it's poison.' That I can agree with, but the problem is that there's a failure to act. He says the right thing, but, when he was given the opportunity today to answer a question about putting One Nation last, he ignored it. He said the Prime Minister agreed with him. If the Prime Minister agreed with him, he'd make a simple statement—'We will put them last'—yet he hasn't done it.
I was with Senator Canavan on Saturday night doing TV coverage of the election. He thinks that the primary vote in Queensland going back nine points has been a great outcome. He thinks coming fourth in Rockhampton is a great outcome. This has been the response from Senator Canavan. He says, 'We just need to sell and market better.' The one area where there was policy consistency in the Queensland LNP and the federal LNP was energy. They both want to pursue a coal-fired power station in North Queensland. That was comprehensively rejected on the weekend. That was what Tim Nicholls was running on in regional Queensland—they would build a coal-fired power station. Their vote went backwards. That is the reality of their policy. That is where their policy matches up with the federal team. They attack renewable energy. They said they were going to build a coal-fired power station, and their vote went backwards. That is the response.
Senator Macdonald has probably gone the closest to hitting the nail on the head. He spoke about what the problem with the federal LNP has been:
There's no doubt about it—Malcolm is not seen as representing people in northern and regional Queensland.
He went on to say:
… people don't know what he stands for.
If his own Senate colleague doesn't know what he stands for, how can the people of Queensland know? The policies that they've been pursuing are so out of touch with regional Queenslanders, and the vote that we saw on the weekend is an example of this. Then we saw the member for Dawson, and he's basically going down the cuddle-up path. He wants to appease One Nation voters. The one person they're not listening to is former senator Ron Boswell. He has said this consistently since One Nation won seats back here in the Senate and he's said it again in recent days: 'There's only one way you can defeat them and that's if you fight them.'
That's why they're so divided. They don't know whether to go with the Christensen model. Senator Brandis says the right thing; his actions say something different. But they won't listen to former Senator Boswell. Because we know—he's been consistent on this, and he said this in his farewell speech in this chamber—that the proudest thing he did was take the fight up to now Senator Hanson and defeat her. The present-day Nationals are an absolute shadow of the legacy of Senator Boswell. It's a pity. I'm sure he'll be here next week—Senator Canavan mentioned the Christmas party. It would be worthwhile if the Queensland team got around former Senator Boswell and sought some advice.
The Labor Party in Queensland have taken a principled decision. When One Nation were first on the scene 20 years ago, we put them last. I'm sure, if you listened to former Senator Boswell, you'd get similar advice. On the weekend, Labor was rewarded for taking that principled decision, especially in South-East Queensland, as Senator Brandis knows so well.
Senator IAN MACDONALD (Queensland) (15:24): I love these debates, propagated by Labor senators from Queensland, when the Labor Party is in power in Queensland—or might be next week—only because of the One Nation preferencing of Labor Party candidates. Labor, if they win in Queensland, will be there only because they received One Nation preferences in Queensland.
This motion was moved by Senator Watt who, as we all know, was ingloriously thrown out of the Queensland parliament in the election before last. He was in one of the safest Labor seats in Brisbane, the seat of Everton, yet Senator Watt managed to lose that to Mr Tim Mander, who is the current sitting member and who in this last election did incredibly well in the electorate of Everton. I suspect that's because voters thought if they didn't support Mr Mander they might get Senator Watt back as a Labor candidate in the future. It was certainly the high point of the LNP vote in Queensland.
I'm sorry to disappoint Labor senators, but there is only one party in Queensland. There's no National Party and there's no Liberal Party; there's a Liberal National Party of Queensland. Every single one of us in this federal parliament from Queensland on the right side of politics is endorsed as a member of the Liberal National Party of Queensland. That will continue.
The result in Queensland was an appalling result for Labor. If it hadn't been for One Nation, Labor would have lost the election. In the Central Queensland area is the electorate of Rockhampton, as opposed to Rockhampton South, which was once held by Rex Pilbeam, a Liberal member and former mayor, I might say. I cannot recall when the electorate of Rockhampton has not been held by the Labor Party. Can I tell you, Madam Deputy President, in the next parliament it will be held by someone who is not from the Labor Party and is also, curiously, the current mayor of Rockhampton.
The One Nation vote, particularly in the north, has caused real difficulties with two excellent members of the LNP. Dale Last is my member in the seat of Burdekin, which encompasses Collinsville, where the coal-fired power station would have gone. Regrettably, the only reason that Mr Dale Last, the LNP candidate, is struggling in that seat is because the One Nation candidate, who was previously an LNP member for Thuringowa in Townsville, preferenced 'Mad' Mike Brunker—'Moscow Mike', they used to call him—in the electorate of Burdekin, the seat where the coal-fired power station was going to go. I cannot understand that. Andrew Cripps is struggling in Hinchinbrook, though he is an excellent minister and an excellent member. Why? Because One Nation preferenced the Labor Party or Mr Katter or both in that particular seat. The Labor Party candidate for Townsville, who nobody has ever heard of—he's more than a candidate; he's the sitting member, but nobody has heard of him—won, I regret to say, on LNP preferences. That puts the lie to the rubbish we've heard from the Labor Party in this debate.
The Turnbull government has spent and committed a lot of money and a lot of effort to Queensland. The northern Australia policy, which is the hallmark of the Turnbull-Abbott government, commits over $6 billion of investment there. We've committed to dams and we've committed to roads. The commitment made by the Turnbull government to Queensland is enormous. That sort of commitment to Queensland will pay results in the future. As for the moment— (Time expired)
Senator KETTER (Queensland) (15:29): It is a great delight to follow Senator Macdonald in this debate. Senator Macdonald is certainly one who speaks his mind. Earlier today, Senator Macdonald did that when he said on Sky News that following the Queensland election there's a lot of work to be done to convince voters that Malcolm Turnbull, the Prime Minister, understands regional Australia. He went on to talk about the fact that Labor's win has many coalition members reflecting on the implications for the Turnbull government. It must be an extremely sobering result for the LNP, and the repercussions are ongoing. We saw Mr Christensen's tweet. We've seen Senator Macdonald's reflections. We've seen Senator O'Sullivan looking at issues. We've seen Senator Brandis himself reflecting on whether or not, down the track, there should be a division between the National Party and the Liberal Party in Queensland. There are huge ramifications flowing from the state election when, really, what happened was we had a state Labor government adopting a principled position on the issue of One Nation—putting One Nation last—and now we're seeing the result. The people of Queensland warmed to that position. It's my fervent hope that Annastacia Palaszczuk will be returned as Premier of Queensland.
It's quite clear that Senator Macdonald is correct: the people of northern Australia do not understand what the Prime Minister stands for. I don't think the Prime Minister understands what he stands for either. Senator Macdonald would be aware that one of the issues in Northern Queensland is the NAIF facility and whether any jobs flow out of that for Queensland. None have flowed, despite the fact that this was announced some years ago. We're still in the pipeline. Nothing has come out of the NAIF.
Northern Australians—and North Queenslanders in particular—have some of the highest insurance premiums because of their exposure to natural events. We saw the Northern Australia Insurance Premiums Taskforce hand down a recommendation, but we are yet to see this government come up with a response. We'll be waiting years for a response to that important issue for northern Australians. On disaster relief, we see the Turnbull government's woeful track record on NDRRA funding and their disregard for the people of Central Queensland and North Queensland at their greatest time of need.
It's quite clear why the people of northern Australia don't understand where the Prime Minister is coming from, because he has forgotten Northern Queensland and he has forgotten northern Australia. He doesn't focus on those types of issues; he's focused on other issues. This is another of Senator Macdonald's observations. He says, 'For traditional people, the issues we seem to be supporting are not the issues that they want.' I take my hat off to Senator Macdonald. He is quite correct on that.
But we're continuing to see a series of thought bubbles come from the Prime Minister. He is wishy-washy. He 'wibble-wobbles' on a range of issues. We've seen things such as states having the power to levy income tax and, flowing from that, states funding state schools and the Commonwealth funding private and Catholic schools. He floated the idea of increasing the GST and backed away from all these things. He talked about reining in negative gearing excesses. Nothing came out of that. He talked about tax cuts for millionaires, foreign companies and the banks—they, of course, need tax relief! At the same time, he talked about tax increases for ordinary Australians. But when under pressure, in relation to the scrapping of sittings this week for the lower house, he came up with another thought bubble: let's talk about income tax cuts down the track.
This is a Prime Minister—and a government—who is desperate to portray to the people of Australia that he knows what he's doing. He does not know what he's doing. The National Party have woken up to him. They understand that, in order for them to survive the oncoming electoral oblivion at the next federal election, they need to differentiate themselves. It is too little too late. The lapdogs have made their run too late.
Question agreed to.
International Day of People with Disability
Senator STEELE-JOHN (Western Australia) (15:34): I move:
That the Senate take note of the answer given by the Minister representing the Minister for Social Services (Senator Fifield) to a question without notice asked by Senator Steele-John today relating to people with disability.
I must say I wasn't incredibly surprised by Minister Fifield's response to my questions, although I had given his office due warning that they were coming, so I had hoped for something more substantive than reference to two programs which are not related to employment in the disability space, and another which is simply a trial program. I find it deeply concerning that after being given that information—and once again I'll restate it for the record: Australia ranks 21st out of the 29 countries of the OECD in relation to employment of people with a disability, and 27th when it comes to the correlation between unemployment and poverty—there seems to be no proactive solution championed by Minister Fifield or the government in this area. There has been no attempt, for instance, to even put in place data arrangements such as are used in the US in order to properly track employment for people with disability on a monthly basis; there has been no suggestion, as has been advocated for, that the government take up proactive public sector targets for people with a disability; and there has been no suggestion from the government of an innovation fund to enable the employment of people with a disability.
I find this so concerning because, of course, our own Human Rights Commission make it very clear to the government on a regular basis that discrimination in relation to disability is one of the main complaints they receive. Indeed, it comprises 37 per cent, the largest total of all complaints received by the commission. Of those complaints in relation to disability discrimination, 35 per cent relate to discrimination at work. This had fallen from a staggering 60 per cent in 2005-06, but I am now sad to say that, since 2010-11, it has been increasing to its current level.
So there really is a need for urgent action in this area, and yet there seems to be no urgent action forthcoming, which I find incredibly disappointing and which I know is incredibly frustrating to the disability community and those that speak to me on a regular basis, because, of course, discrimination at work in relation to disability is so often connected to a fundamental misunderstanding of things such as the Disability Discrimination Act, the costs involved in employing people with disabilities in the workplace, and the ways in which volunteering opportunities can be used to develop soft skills. I really sit here thoroughly disappointed with the minister's answer, and I hope that in future we may have some rather more substantive exchanges across this chamber on such important—and, I have to say, rather uncontroversial—issues of the day. I thank the chamber for its time.
Question agreed to.
CONDOLENCES
Hearn, Mrs Jean Margaret
The PRESIDENT (15:38): It is with deep regret that I inform the Senate of the death on 20 November 2017 of Jean Margaret Hearn, a senator for the state of Tasmania from 1980 to 1985.
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (15:38): by leave—I move:
That the Senate records its deep regret at the death, on 20 November 2017, of Mrs Jean Margaret Hearn, former senator for Tasmania, places on record its appreciation for her service to the Parliament and the nation, and tenders its sympathy to her family in their bereavement.
Jean Margaret Hearn, nee Button, was born in Launceston on 30 March 1921. She was the eldest child of Elton Roy Button, a draper, and Emily Gertrude Button. She was raised in the small town of Smithton, on Tasmania's north-west coast, and was educated at the Methodist Ladies' College in Launceston.
On 28 December 1940, Jean married Frederick Howe, with whom she had a son. It was a year after the outbreak of war. In another 12 months time, the war would reach the Pacific. Frederick enlisted in the Second Australian Imperial Force. In 1942 he was captured by the Japanese in Timor, and in 1944 he perished in a POW camp in Java.
Frederick Howe's death had a profound effect on Jean, igniting a commitment to pacifism that would endure unabated all her life and inform many of her contributions to public debate in this place. It was a pacifism of the 'swords into ploughshares' variety. She became a Quaker, and in her maiden speech to the chamber she lamented that the earth's finite resources were being wasted on the machinery of war:
Vast sums of money—
she said—
are spent on armaments while millions die of starvation each day. The world has, in kilograms per person, more explosives than food. Yet, it is not only the shortage of food which is the cause of hunger but the price that is put upon food.
She continued:
If we consider the money that is spent on armaments—as much money is spent on armaments in one hour as is spent on all the underprivileged children of the world in one year—surely it is a matter of shame.
In 1948 Jean married Alfred Beverley Hearn, a schoolteacher from Ballarat. The couple had two sons and a daughter together and moved to Geelong in 1954, where Jean worked as a preschool superintendent. It was the same year that Jean was to join the Labor Party, though she would not play an active role in party politics for more than a decade to come.
The family returned to Tasmania after five years in Geelong. Here Jean Hearn worked as a librarian, first in the Huon Valley for five years and then for another four in Burnie, before returning to Launceston to assume the position of supervisor at Broadland House Church of England Girls Grammar School. Jean's preparliamentary years in Launceston were spent in the service of countless local community projects and interest groups. She was, among other things, President of the Launceston Family Day Care Association from 1975 to 1980 and a founding member of the Regional Council for Social Development. She served on the state council of the Family Planning Association of Tasmania from 1970; co-authored a cookbook, entitled A Taste of Tasmania; and practised as a civil celebrant from 1975 until after her election to the Senate.
Jean Hearn joined the Tasmanian Labor Party's State Administrative Committee in 1970, the first woman ever to have been elected to that body. Her first, unsuccessful, tilt at elected office came two years later, when she was among the eight Labor candidates to run for a seat in the state division of Bass. Between 1975 and 1977 she worked as a research assistant for former President of the Senate Senator Justin O'Byrne. Two years later, in 1979, she was preselected to lead the Labor Party's Tasmanian Senate ticket, guaranteeing her election to the Senate at the poll scheduled for October 1980. Three days prior to polling day, however, Jean was appointed by the Tasmanian parliament to fill the casual vacancy created by the departure of the leader of the Labor Party in the Senate, Ken Wriedt, who had resigned to contest the seat of Denison. And so, following the expiration of former Senator Wriedt's term on 30 June 1981, Jean Hearn returned to the Senate, having in the meantime occupied the casual vacancy, the very next day to take the seat she had won in her own right.
The Senate was ideally suited to Jean Hearn's outspoken style and provided her with a platform from which to pursue the causes that had animated a lifetime of activism. She served on the Senate Legislative and General Purpose Standing Committee on Trade and Commerce from March till September 1981 and on the Standing Committee on Education and the Arts from September 1981 until her retirement in June 1985. It was to the latter of these committees in particular that she brought a unique perspective from her work in schools and as a long-time proponent of Steiner education.
Jean Hearn was re-elected on a short term at the March 1983 double-dissolution election and remained outspoken on the issues that had first spurred her involvement in public life. In 1984, she became the founding secretary of a parliamentary friendship group for nuclear disarmament, and was sympathetic to the New Zealand Labor government's declaration of a nuclear-free zone in 1984, using her growing public profile to push for global disarmament and nonproliferation in parliament as well as in print. In fact, Jean would frequently pen letters to all manner of newspapers and periodicals on matters of public interest, from the ANZUS Treaty to the old age pension. However, it was among her more esoteric missives in print that would lead to one of the odder episodes of Jean Hearn's career.
In a letter published in the autumn 1985 edition of Organic GrowingMagazine, Senator Hearn wrote, somewhat impenetrably:
The cow has horns in order to send into itself the cosmic astro-ethereal formative forces, which, pressing inwards, are meant to penetrate right into the digestive organism of the cow. In comparison—
Senator Hearn explained—
the antlers of the deer are altogether different. Observe the deer's intense communication and sensitivity to the outer world. Through the antlers, the deer sends outwards certain currents and lives very consciously with its environment, thereby receiving all that works organically in the nerves and senses. In certain respects—
Senator Hearn concluded—
all animals possessing antlers are filled with a gentle nervousness and quickness. We see it in their eyes.
When reportage of Senator Hearn's theory of the cosmic properties of certain livestock spread beyond the subscribership of Organic Growing Magazine to The Sydney Morning Herald, the senator disappointingly declined to elaborate further.
Under the then retirement rules of the Labor Party's Tasmanian branch, Jean Hearn was deemed ineligible to stand for re-election following the expiration of her term on 30 June 1985 because of her age. And so, in what she knew would be her final speech to the chamber on 31 May 1985, Senator Hearn reflected upon the aims that had motivated her election to office half a decade prior: civil liberties, human rights, economic inequality and community cohesion. Of her impending retirement, she claimed to be looking forward to the opportunity to continue to work for those ideals which can create for people the realisation of peace and true humanity. In pursuit of these laudable aims, Jean Hearn was tireless to the end.
In 2015, already well into her 90s, Jean Hearn oversaw the creation of the Tamar Community Peace Trust to raise awareness of peace issues through the arts, education and the media. In 2016, at 95 years of age, she was selected as Tasmania's nominee for Senior Australian of the Year, in recognition of her lifelong advocacy for peace. Half a century of political activism and public service never dimmed Jean Hearn's idealism, nor dented her determination. And in appreciation of a life given to the betterment of humanity, I offer, on behalf of the government, my gratitude for her service and tender my condolences to her family.
Senator WONG (South Australia—Leader of the Opposition in the Senate) (15:48): I rise on behalf of the opposition to speak on and acknowledge the passing of one of our own, former Labor senator Jean Margaret Hearn, who passed away on Monday, 21 November, at the age of 96. On behalf of the opposition, I express our deepest condolences to her family, her friends and all who knew her. On Tuesday last week, Mrs Hearn's eldest son, Michael Howe, reflected on his mother's life. He said:
Jean Hearn always tried to make a positive difference and devoted considerable energy to working for the wellbeing of her community, peace and opportunity for young people.
Mr Howe went on to reflect that her parliamentary career was a means through which she was particularly able to channel those passions. Her life, not just her time in this parliament, but including it, is a testament to convictions, beliefs, values and hard work.
Born in Launceston in 1921, Mrs Hearn was the eldest of four children and grew up on the north-west coast of Tasmania. She married in 1940, but, as was sadly the case for so many women at that time, she lost her husband during World War II. Frederik Howe died in 1944 as a prisoner of war. Out of this tragic event came a lifelong commitment to pacifism. It also manifested itself through membership of the Religious Society of Friends, better known as Quakers, and of the Australian Anthroposophical Society. The latter, which emphasises the potential for spiritual development in all human beings, played a major part in the development of her political thinking. She remarried in 1948, taking the last name of Alfred Hearn, who was a teacher. It was around that time she joined our party, the Australian Labor Party.
For the next three decades, before being elected to the Senate, she worked in a number of professions. She worked as a librarian, as a school supervisor and as a civil celebrant. She worked in a range of voluntary activities and for a range of associations: the Family Planning Association of Tasmania, where she served on the state council; the Regional Council for Social Development, of which she was a foundation member; the Organic Gardening and Farming Society; the Launceston Family Day Care Association, of which she served as president; the Child Care Accident Prevention Steering Committee; and the Mayfield Youth Support Scheme, of which she served as vice-president—a wide and varied range of community contributions. In 1970 she joined what was then called the Miscellaneous Workers' Union. She also worked for former Labor senator Justin O'Byrne in the 1970s. Former Senator O'Byrne's great-niece, Tasmanian deputy Labor leader, Michelle O'Byrne, recalled that, 'Walking away from something was unacceptable to Jean.'
In 1980 Jean Hearn was chosen to fill the casual vacancy to represent Tasmania in the Senate, following the resignation of Ken Wriedt. She was successfully re-elected that year, having already been chosen as the first woman to head the Labor Senate ticket in Tasmania before the casual vacancy arose. This is yet another occasion, sadly, where I stand here to pay tribute to a Labor woman whose courage and determination enabled many of us on this side of the chamber to pursue a career in politics. Jean Hearn, again, headed the Tasmanian Senate ticket for the simultaneous dissolution in 1983 and was allocated to the class of senators for the shorter term, following that election, so her term concluded on 30 June 1985. She retired upon its expiration, as the Tasmanian branch of the ALP in those days had retiring-age rules in place.
Mrs Hearn can be described as a genuine idealist. She came to the Senate with a vision of social justice and supported the charitable work of churches and welfare groups. She saw there was a need to more equitably distribute resources, and, in a testament to her pacifism, believed the budget for weapons purchases would be far better invested in the feeding of the poor. She also wasn't afraid of challenging the prevailing attitudes in a male-dominated parliament. In particular she took on the Fraser government, noting that family breakdown was a major social problem of the day and that it was the policies of the Liberals that put increasing pressure on people who could least cope with it.
Mrs Hearn also saw the opportunity for much greater engagement of Australians with their political system, believing an effective democracy demands informed participation. Another consistent theme of her contributions was the importance of a clean environment, extending from raising concerns about asbestos and opposition to chemical spraying in her home state, to membership of the Senate Select Committee on Animal Welfare. In our party she also served as a delegate to our national conference and as a member of the National Status Of Women Committee.
After politics Jean Hearn looked forward to continuing to support and advocate for the causes she believed in her whole life, and, after she left the Senate, she did so. She sought to further what she described as 'those ideals which can create for people the realisation of peace and true humanity'. She continued to engage with organisations and community groups that shared these goals. Amongst the activities she undertook in her life after the Senate was support as patroness of Life Works at Home, an organisation that was dedicated to providing support to ageing people who wished to remain in their homes. In 2015 Mrs Hearn established the Tamar Community Peace Trust, seeking to promote a non-violent approach to conflict resolution, and this trust is one of the most significant ways in which her legacy will live on. My friend Michelle O'Byrne said, 'I think her legacy was that you don't have to compromise your true values as you progress the things you want to do.'
We remember Jean Hearn as a passionate advocate for social justice, as a passionate advocate for world peace and as someone unafraid to hold her own party to account. She was never someone to walk away from her true values, and she continued to work tirelessly to achieve them into her 90s. I repeat: we on this side mourn the loss of yet another generation of Labor women who forged the path so that many of us could stand in this Senate today. On behalf of Labor senators, we extend our deepest sympathies to her family and friends at this time.
Senator WHISH-WILSON (Tasmania) (15:55): I'd like to rise today on a personal note and also on behalf of the Australian Greens to offer our condolences to Jean's family and friends and pay our respects to her. Jean was a friend of mine. I visited her only a few weeks ago while she was in hospital and I said to her, 'I'm sorry I haven't seen much of you, Jean, especially in recent years, but I do say that to just about everyone I meet these days.' And she gave me a mischievous little smile. We had a good chat, and it reminded me, even then, when Jean was, I suppose, in her last moments, that she still had that intensity that I remember from when I first met her.
I went along—it would have been over 10 years ago—to a meeting on Balfour Street in Launceston because I had a vineyard and I was interested in learning about biodynamics. I wanted to know more about biodynamics. I was interested in meeting experts who could tell me how I could better grow my grapes according to this philosophy. When I went to that meeting, I got a lot more than I bargained for. I remember this quite small in stature and quite frail but formidable woman who actually almost gave me a sermon on spirituality and, more importantly, on things that I was really interested in, such as economics and our role in an economy that puts people first, an economy that prioritises the needs of workers and nature. So I was quite intrigued.
I went along to a second meeting and I got to know Jean a little bit better. Then, over the years, as I met with Jean and learnt more about the Steiner movement—my children were quite young at that stage and I was interested in the concept of a Steiner school; my children had been to a Montessori school when we lived overseas—Jean convinced me to join the board of the Launceston Steiner association, which I did. And then, of course, I met with her on a regular basis, and, fortunately, in my time there, I introduced the late Jeremy Ball to that association as well, because he was very active in the Launceston community and he had younger children.
I remember my time with Jean very fondly. I even remember sitting in her lounge room having a cup of tea while she told me what my dreams meant. She was the kind of person that you could completely open up to. She was a very spiritual person and also a very calming, peaceful person. I regret that I didn't spend enough time with her in recent years. I was well aware of the great work she was doing at the Launceston peace festival. I was reliably informed that I couldn't speak at it because she wanted to keep it apolitical—something that didn't surprise me about Jean. I know, being a Green—even when I first met her, I was just starting to run for the Greens—she always respected my views on politics. I always respected hers. One of the last things she said to me, in hospital a few weeks ago, was: 'Always put the party first, Peter. No matter what you do, the party will look after you. Always remember to put the party first.' Not that that was particularly an issue for me, but, nevertheless, I know exactly what Jean was referring to there. She was certainly an inspiration to me, as she was to many Launcestonians, and I'm a better man for the time that I spent with her.
Senator CAROL BROWN (Tasmania) (15:59): I'd like to rise to say a few words about Jean Hearn and pay my condolence on the occasion of her death. I knew Jean personally. I met Jean when I joined the Labor Party, prior to her becoming a senator. Anyone that knew Jean Hearn knew that she dealt with issues with passion and commitment, and that same passion and commitment is the way she worked for Tasmania and for Tasmanians. Indeed, my brother, Philip, worked for Jean up in Launceston and he had nothing but admiration and complete and utter loyalty to Jean in her work and her commitment to Tasmania. If he were around today—and, sadly, he is not—he would be the first to talk about Jean and her work and what Jean meant to the Labor Party and the Tasmanian branch, in particular.
Jean was a very well-known figure in the Tasmanian branch of the ALP, particularly for her activism in the cause of peace, an activism that sprang from her own life experience. She was a trailblazer for women in the ALP, being the first woman to be a member of the Tasmanian ALP administrative committee, a position she held from 1970 to 1980—and I can tell you there weren't that many women on the administrative committee during that whole period. Jean was, indeed, one of the women that really led the way to opening up the ALP in terms of representation of women.
In 1972 Jean stood for election to the House of Assembly for the seat of Bass under Tasmania's Hare-Clark system. During the campaign, she attacked the Labor Party's position on state aid to schools. Her willingness to speak up on issues she believed in continued throughout her career in the party. On this occasion, Jean was eliminated from the count at an early stage and was unsuccessful.
As you've heard, Jean was also a political staffer serving Senator Justin O'Byrne, in what was an extremely politically charged time from 1975 to 1977. In 1979, Jean was selected by the state council to head the ALP Senate ticket, the first woman to do so. As it transpired, she in fact became a senator before the 1980 federal election, as she was selected to replace Senator Ken Wriedt, who went on to lead the state Labor Party.
Jean became a senator in her own right, having been elected at the 1980 federal election. Jean Hearn was known as an idealist and a person who participated in issues of politics, as opposed to machine politics. She was interested in and active in a broad range of issues, having strong commitment to women's rights, peace, social justice, equity and the natural environment. In 1981, she was joint chair of the first Tasmanian ALP women's conference. In 1984, Senator Jean Hearn founded a parliamentary disarmament group. She supported the introduction of peace education into the Australian school curriculum and questioned the presence of US military forces in Australia. Jean's Senate term ended in June 1985. Under the then ALP Tasmanian rules, she was not allowed to seek a further term due to her age.
While Senator Jean Hearn asked questions and supported causes that would bring her into conflict with others in the ALP, she also had a broad range of personal interests. As we've heard, she was a marriage celebrant. She co-wrote a cookbook and was a long-time supporter of Steiner education. She loved gardening and was opposed to plant patenting and to the aerial spraying of crops. We will miss Jean, and the Tasmanian ALP will always remember Jean's contribution.
Senator POLLEY (Tasmania) (16:04): I rise to make a few comments, but I certainly would like to associate myself with Senator Brown's contribution. I was a younger woman when I returned to Tasmania from living in Victoria back in 1983, and, hence, when I met the then Senator Jean Hearn, she was quite an articulate, outspoken woman. I think she was a little more tolerant of me because of the fact that my own father spent 3½ years as a prisoner of war with the Japanese and the fact that there had been a long history as well with my older brother. But what I will remember Jean most for is her solemn support for peace. She was outspoken, she was passionate and she was caring. In terms of nuclear disarmament, I think there was no-one in Tasmania from the Labor Party who was more earnest in their drive to see that we took that policy and issue very seriously.
When it came to women's issues, Jean was very supportive. I remember going along to one of my first meetings of the Status of Women Committee and she was, as always, outspoken. It was in more recent years when I took on the responsibility of shadow assistant minister for ageing to the shadow minister for ageing, Julie Collins, that I went to visit her. I took one of my young staff members along because I wanted him to meet her and to understand the history and her involvement in opening many doors for future Labor women to come through, hence why I'm standing here today. She broke down a lot of those barriers for us. Jean was so engaging. She was already 95 at that stage, but she was still very passionate. She said, 'Helen, you have to get people to listen because our ageing population needs far more support.' Even though she was still living at home, she had some assistants coming in to help her. But she was determined to stay in her own home. We left that afternoon after having a cup of tea with her—you couldn't visit her without having a cup of tea—feeling quite motivated and invigorated to continue with our battle to make sure ageing was on the national agenda.
Jean's strong advocacy when it came to Steiner education and her role in supporting women have already been highlighted. Even though there were times when we were on very different sides of the political agenda, she was always respectful. She was always willing to explain to you in great detail why you were wrong, and from that you could always hear why. I, and on behalf of Senator Bilyk, want to place on record our respect for her. Her legacy will live on.
Senator URQUHART (Tasmania—Opposition Whip in the Senate) (16:07): I also rise to pay tribute to former Tasmanian Labor senator Jean Hearn. Jean's lifetime of activism, community service and determination leaves a tremendous legacy in our party and in the broader Tasmanian community. Jean lived in every corner of Tasmania, including in Smithton in her early years and in Burnie on the north-west coast for four years in the 1960s. We're a parochial lot in Tasmania. Yes, Senator Hearn spent the rest of her life in Launceston—when north-west coasters can claim someone of her calibre, both politically and industrially, we will do so.
In her few years in Burnie in the mid-sixties, Jean founded the pacifist group Society to Uphold the Universal Human Rights, writing many letters to the press and governments, organising rallies and supporting conscientious objectors. After 16 years as a member of the Labor Party, it was in 1970 that Jean became the first woman ever elected to the Tasmanian Labor Party's Administrative Committee through her membership of the left-wing Miscellaneous Workers Union. A decade later Jean was the first woman to be preselected at the top of the Tasmanian Labor Senate ticket for the 1980 election. It's worth reflecting that since December 2011 Tasmania's Labor Senate delegation has comprised solely women. Jean started something. We're a landmark group and we owe Jean a great deal for her pioneering work.
In Jean's first speech she expressed her concern that Australians were being sacrificed to a system that put economic values and profits before the value and potential of a human person, and declared, 'Working people are not to be discarded as an item of cost at the swing of an imbalanced market, because people have a right to work.' Those words very much ring true to this day with the rise of insecure work and the relentless attacks on working Australians from their own government. Twice elected as a senator, Jean was an outspoken member of caucus who sought to ask hard questions of those in power, even when Labor was in government.
Long after retirement from the Senate and well into her 90s, Jean was inspired by the 2014 Anzac Day address from former Tasmanian Governor Peter Underwood, where he called on Tasmanians to do something, to learn how to create peace, to create the Tasmanian Valley Peace Trust, which we've heard about. The trust has held annual festivals in the Tamar Valley promoting peace and harmony through collective activities. Just last year Jean was a nominee for Tasmanian Senior Australian of the Year, a fitting public recognition of her lifetime of peace advocacy.
Our party, the union movement and the broader Tasmanian and Australian communities are richer for Jean's active participation and leadership. Vale Jean Hearn.
Question agreed to, honourable senators standing in their places.
COMMITTEES
Electoral Matters Committee
Meeting
Senator BUSHBY (Tasmania—Chief Government Whip in the Senate) (16:11): On behalf of the chair of the Joint Standing Committee on Electoral Matters, Senator Reynolds, I move:
That the Joint Standing Committee on Electoral Matters be authorised to hold a private meeting otherwise than in accordance with standing order 33(1) during the sitting of the Senate today.
Question agreed to.
Environment and Communications References Committee
Reporting Date
The Clerk: Notifications of extensions of time for committees to report have been lodged in respect of the following:
Environment and Communications References Committee—
Impacts of climate change on marine fisheries and biodiversity—extended from 29 November to 6 December 2017.
Shark mitigation and deterrent measures—extended from 29 November to 12 December 2017.The Clerk. There are no postponements, committees lodged extensions as indicated on item 10 of today's Order of Business.
The PRESIDENT (16:12): I remind senators that the question may be put on any proposal at the request of any senator.
MOTIONS
International Day for the Elimination of Violence Against Women
Senator POLLEY (Tasmania) (16:12): I move:
That the Senate—
(a) notes that:
(i) White Ribbon Day, also known as the International Day for the Elimination of Violence Against Women was held on 25 November 2017,
(ii) White Ribbon Day is a campaign which seeks to encourage men to take a leadership role in eliminating violence against women, and
(iii) the campaign for 2017 surrounds a STOP kit which is designed to help people spot the signs, offer support and create change to prevent violence;
(b) acknowledges:
(i) that every year in Australia, approximately one woman is killed each week by a partner or former partner, and
(ii) the courage of those who stand up, speak out and shine a light on domestic violence;
(c) remembers the women and children whose lives have been scarred, and taken, by family violence; and
(d) urges Federal, state, territory and local Governments to take action to address family violence.
Question agreed to.
DonateLife Thank You Day
Senator BILYK (Tasmania) (16:12): I, and also on behalf of Senator Urquhart, move:
That the Senate—
(a) notes that:
(i) 19 November 2017 was DonateLife Thank You Day, a national day dedicated to honouring all organ and tissue donors and their families,
(ii) the circumstances in which a person's organs can be donated after they die in hospital are rare – only 1 per cent of hospital deaths allow for organ donation,
(iii) up to 1,400 Australians are on organ transplant waiting lists at any time, and
(iv) of the 36 per cent of Australians who feel confident they know the donation decisions of their loved ones, 93 per cent would uphold these decisions;
(b) thanks all organ and tissue donors and their families for helping to transform the lives of thousands of Australians through their donations; and
(c) encourages all Australians to register as organ and tissue donors on the Australian Organ Donor Register, and to discuss their donation decisions with their families.
Question agreed to.
International Day for the Elimination of Violence Against Women
Senator URQUHART (Tasmania—Opposition Whip in the Senate) (16:13): At the request of Senators Fierravanti-Wells and Moore, I move:
That the Senate—
(a) notes that:
(i) on 25 November 2017, the world observed International Day for the Elimination of Violence Against Women,
(ii) this day starts the 16 Days of Activism against Gender-Based Violence Campaign which ends on 10 December, Human Rights Day – this is an important time to shine a light on serious problems which affects every country and every community in the world, but which is too often hidden,
(iii) the theme of 'Leave no one behind: End violence against women and girls' reminds us that we must work to protect and provide services for the most vulnerable populations, including women with disabilities, women from migrant and minority groups, Indigenous women, and women living in remote and rural areas,
(iv) women in the Pacific face among the highest levels of violence in the world: 60 per cent of women and girls have experienced violence by an intimate partner or family member, and
(v) violence against women, and the threat of violence, is an abuse of women's human rights – it limits women's participation in social, political and economic life, and this significantly impacts on social and economic development, affecting families, communities and nations;
(b) further notes that respective governments have:
(i) funded services for women and children who have experienced violence – in the last five years, 56 076 women and children across the Pacific have accessed a variety of crisis support, including counselling, health and legal services,
(ii) worked closely with the law and justice systems and has supported a number of Pacific countries to enact legislation to criminalise domestic violence and provide greater protection for women and children,
(iii) worked with Pacific organisations which work with men as influencers and role models to reduce acceptance of violence – in the last five years over 3,000 Pacific men have been supported to undertake male advocacy training to support gender equality and women's rights, and
(iv) worked with churches, governments, community organisations, United Nations agencies and the private sector to expand Pacific-owned violence prevention programs to new communities, as well as to introduce initiatives which have demonstrated results in other parts of the world; and
(c) recognises that:
(i) violence against women is unacceptable anywhere, anytime,
(ii) ending violence against women is critical to achieving Sustainable Development Goal 5 (achieve gender equality and empower all women and girls) and many of the other goals by 2030,
(iii) respective Australian Governments have a long and proud tradition of working with Pacific organisations to support survivors of violence and that we have a lot to learn from each other, and
(iv) Australia needs to partner with Pacific organisations over the long term, as this is the only way to support transformational and sustainable change.
Question agreed to.
COMMITTEES
Select Committee on Red Tape
Reporting Date
Senator LEYONHJELM (New South Wales) (16:13): I move:
That the time for the presentation of the report of the Senate Select Committee on Red Tape be extended to 3 December 2018.
Question agreed to.
MOTIONS
Myanmar
Senator SINGH (Tasmania) (16:14): I, and also on behalf of Senator Watt, move:
That the Senate—
(a) remains extremely troubled by the continuing conflict between minorities, including Rohingya Muslims, and armed forces in Myanmar's Rakhine State since 25 August 2017, that has:
(i) caused the death and suffering of many people, almost all of them minorities in Rakhine State,
(ii) forced more than 600 000 members of minorities in Rakhine State to flee to Bangladesh since 25 August 2017, and displaced large numbers of people within Rakhine State, the majority of whom are Rohingya Muslims, and
(iii) prevented access of United Nations (UN) and non-government organisation (NGO) aid agencies to deliver crucial supplies of food, water and medicine in northern Rakhine State;
(b) notes that:
(i) most of those fleeing have few possessions and are reliant on humanitarian aid for their survival, and almost 70 per cent are children and women,
(ii) since 25 August 2017, the Australian Government has committed $30 million to assist those fleeing their homes, and
(iii) Australia is currently the third largest bilateral donor to the UN 'Bangladesh: Rohingya Refugee Crisis 2017' appeal;
(c) further notes that:
(i) the UN has stated that this crisis "is causing suffering on a catastrophic scale" and more aid assistance is needed,
(ii) the Australian Red Cross and the United Nations High Commissioner for Refugees (UNHCR) are urgently seeking donations from the Australian public to help provide these desperate people with medical assistance, shelter, food and clean drinking water,
(iii) each dollar donated in Australia for UNHCR and Australian Red Cross during the appeal will be matched by the Australian Government (up to $5 million),
(iv) Oxfam, CARE, Caritas, Plan International Australia, Save the Children and World Vision are also playing a vital role in response to the crisis, including delivering programs on behalf of the Australian Government through the Australian Humanitarian Partnership, and have joined the Australian Government's appeal for funding, and
(v) other Australian humanitarian agencies are also running appeals in response to the crisis in Myanmar and Bangladesh, including Act for Peace, ActionAid, Adventist Development and Relief Agency, Anglican Overseas Aid, Child Fund, Muslim Aid Australia, Partners Relief and Development, RedR Australia, TEAR Australia, UNICEF Australia, UnitingWorld and the Anglican Board of Mission; and
(d) urges:
(i) Australians who wish to donate to Australian NGOs and humanitarian agencies to visit the appeal websites, which can be accessed via http://www.abc.net.au/appeals/ ,
(ii) the Turnbull Government to continue to monitor the situation, in close consultation with partners, and consider providing further assistance to those displaced by the violence in Rakhine State, and
(iii) the Government of Myanmar to:
(A) recommit to the pursuit of peace and national reconciliation,
(B) allow access to all parts of Rakhine State to allow for the provision of humanitarian aid, and
(C) allow all those who have fled to Bangladesh to be able to exercise their right to a safe, voluntary, dignified and sustainable return to their homes.
Question agreed to.
International Day for the Elimination of Violence Against Women
Senator RICE (Victoria) (16:14): I move:
That the Senate—
(a) notes that:
(i) 25 November 2017 marked International Day for the Elimination of Violence against Women,
(ii) the United Nations (UN) states that violence against women and girls is one of the most widespread, persistent and devastating human rights violations in our world today, and
(iii) the UN 2017 theme for this International Day is 'Leave no one behind: End violence against women and girls', and that any effort to reduce violence against women should pay particular attention to, and be inclusive of, transgender and queer women, Indigenous women, women with disabilities, and women with migrant and refugee experiences; and
(b) calls on all parliamentarians to:
(i) affirm that violence against women and girls is not inevitable, and that prevention is possible and essential, and
(ii) commit to supporting efforts to eliminate violence against women in Australia and around the world.
Question agreed to.
REGULATIONS AND DETERMINATIONS
Direction—Operation of Certain Unmanned Aircraft
Disallowance
The PRESIDENT (16:15): We move now to business of the Senate notice of motion No. 1, standing in the name of Senator Bernardi.
Senator BERNARDI (South Australia) (16:15): How fortuitous! I was walking past.
The PRESIDENT: I note that, Senator Bernardi.
Senator BERNARDI: No, Mr President.
The PRESIDENT: I thought we were dealing with this here. We're not?
Senator BERNARDI: This is a disallowance motion.
The PRESIDENT: Yes. It's being dealt with formally here without debate if that's your preference, Senator Bernardi.
Senator BERNARDI: I was happy to say a few words on it a bit later on.
The PRESIDENT: All right.
Senator BERNARDI: Perhaps we could return to this. I'll consult with the minister.
The PRESIDENT: Consult with the whips, and then we'll return to this if necessary.
Senator BERNARDI: Thank you.
MOTIONS
Immigration Detention
Senator McKIM (Tasmania) (16:15): I move:
That the Senate—
(a) notes that:
(i) on 23 and 24 November 2017, Papua New Guinea police and immigration officials entered the Regional Processing Centre on Manus Island, with the Australian Federal Police playing an advisory role,
(ii) after three weeks of the refugees and people seeking asylum being starved and dehydrated, the Papua New Guinea police began the forcible removal of the men from the Regional Processing Centre,
(iii) this forcible removal included people being assaulted and beaten with metal rods,
(iv) the United Nations High Commissioner for Refugees (UNHCR) stated it had received reports that several men had been severely injured and medical treatment was paramount, and Mr Thomas Albrecht the UNHCR regional representative stated that "the situation still unfolding on Manus Island presents a grave risk of further deterioration, and of further damage to extremely vulnerable human beings",
(v) Médecins Sans Frontières (Doctors Without Borders) have taken ten people to hospital in the last 24 hours, and
(vi) the men on Manus Island, and the men, women and children on Nauru are Australia's responsibility and remain so; and
(b) calls on the Government to end offshore processing and detention, and bring to Australia every person who sought asylum in Australia and who is currently in Papua New Guinea and Nauru.
Senator McGRATH (Queensland—Assistant Minister to the Prime Minister) (16:16): I seek leave to make a short statement.
The PRESIDENT: Leave is granted for one minute.
Senator McGRATH: The government understands that all refugees and failed asylum seekers have now peacefully relocated to alternative accommodation from the former Manus Regional Processing Centre. The alternative accommodation provides them with food, water, security and medical services. The coalition will not waver in our commitment to securing Australia's borders and preventing deaths at sea. Regional processing has been a key component of Australia's highly successful border protection measures. Senator McKim's reckless actions in Papua New Guinea have demonstrated that he's more interested in political grandstanding than the best interests of the men on Manus Island. This motion further demonstrates that the Greens have learned nothing from their past mistakes, which saw 8,000 children detained and 1,200 deaths at sea.
Senator GALLAGHER (Australian Capital Territory—Manager of Opposition Business in the Senate) (16:17): I seek leave to make a short statement.
The PRESIDENT: Leave is granted for one minute.
Senator GALLAGHER: Labor will not be supporting this motion. The stand-off at the Manus Island processing centre could have been avoided. It happened because the Turnbull government waited until the last minute to make new arrangements in PNG. The government should have been up-front about access to essential services at the alternative accommodation, but it wasn't. The Turnbull government has been woefully incompetent in its management of offshore processing arrangements. Reports that force was used to remove asylum seekers and refugees against their will are of grave concern. Labor expressed our concerns at the time. The Prime Minister must work with the PNG authorities to ensure the safety of the refugees in their alternative accommodation. The PNG Supreme Court ruled that Australia has a moral obligation to ensure refugees have access to essential services or alternative accommodation. This includes access to food, water, security, sanitation, health care and welfare services. We have repeatedly called for the refugees on Manus and Nauru to be resettled in third countries as soon as possible.
The PRESIDENT: The question is that the motion moved by Senator McKim be agreed to.
The Senate divided.
(The President—Senator Ryan)
Universal Service Obligation
Senator LEYONHJELM (New South Wales) (16:25): I move:
That the Senate—
(a) notes that:
(i) reviews conducted by the Regional Telecommunications Review Committee, the Productivity Commission and the Australian National Audit Office (ANAO) have issued critical reports on the Universal Service Obligation (USO) – a 20-year contract under which almost $300 million in taxpayer and industry funding goes to Telstra each year with negligible transparency, accountability or controls,
(ii) Telstra appears to have shut down much of its regional copper wire and payphone infrastructure yet is still being paid almost $300 million a year to maintain these services under the USO,
(iii) the ANAO found that the Department of Communications (the Department) has been a relatively passive contract manager and has not used the flexibility mechanisms within the USO contract that have the potential to reduce the annual payment amounts to Telstra,
(iv) the ANAO found that neither the Australian Communications and Media Authority nor the Department undertakes assurance processes to verify the accuracy of the underlying performance data provided by Telstra,
(v) the Department has acknowledged that it does not know how much it costs annually for Telstra to provide these services, and
(vi) reduced expenditure on the USO could deliver vastly improved mobile services for farmers, businesses and communities in regional and rural Australia; and
(b) calls on the Minister for Communications to:
(i) instruct the Department to adopt the ANAO's recommendation to determine if any of the existing flexibility mechanisms within the USO contract can be utilised to improve value for money outcomes, and
(ii) redirect any USO savings identified by the Department to fund further rounds of the Mobile Black Spot Program.
Senator McGRATH (Queensland—Assistant Minister to the Prime Minister) (16:25): I seek leave to make a short statement.
The PRESIDENT: Leave is granted for one minute.
Senator McGRATH: The government is committed to reform of the universal service obligation. That is why we referred it to the Productivity Commission and welcomed the Australian National Audit Office report which found that Labor's USO contracts fail to provide value for money. However, the USO continues to provide telephone services to all Australians, regardless of where they live. Decisions on this important safeguard should be considered carefully and methodically, not via a notice of motion. We will not support changes to existing protections for regional Australians before we have put new, stronger protections in place. The coalition government has already committed $220 million to the Mobile Black Spot Program, funded outside the USO. Between now and the end of 2018, we will roll out 871 mobile towers. We will continue to deliver for regional Australia. We will respond to the Productivity Commission review, taking the ANAO's findings into account.
Question negatived.
NOTICES
Postponement
Senator DI NATALE (Victoria—Leader of the Australian Greens) (16:27): by leave—I move:
That general business notice of motion no. 599 standing in my name for today, relating to an order for production of documents relating to a potential Northern Australia Infrastructure Facility loan to Adani Group, be postponed till Wednesday, 6 December 2017.
Question agreed to.
MOTIONS
Returning of the Remains of Mungo Man to Country
Senator SIEWERT (Western Australia—Australian Greens Whip) (16:27): I move:
That the Senate—
(a) acknowledges the historic occasion of the returning of the remains of Mungo Man to country on 17 November 2017;
(b) pays its respects to the Aboriginal communities and peoples involved in making the return of Mungo Man to country possible, and those involved in the events and celebrations that took place on 17 and 18 November at Lake Mungo, New South Wales and Mildura, Victoria;
(c) acknowledges the significance to Australia and the international community of the returning of Mungo Man to country;
(d) recognises that his returning is a step toward reconciliation; and
(e) urges the Federal Government to fund a permanent resting or keeping place to safely accommodate the remains of Mungo Man and other Aboriginal remains returned to country at a location agreed with Aboriginal people.
Question agreed to.
REGULATIONS AND DETERMINATIONS
Direction—Operation of Certain Unmanned Aircraft
Disallowance
Senator BERNARDI (South Australia) (16:28): I move:
That section 8 of the Direction — operation of certain unmanned aircraft, made under the Civil Aviation Act 1988, be disallowed [F2017L01370].
Thirteen sitting days remain, including today, to resolve the motion or the instrument will be deemed to have been disallowed.
I seek leave to make a two-minute statement.
The PRESIDENT: Leave is granted for two minutes.
Senator BERNARDI: I thank the Senate for the indulgence. I understand this is a disallowance motion and regularly this should be debated at a later time in the day. However, I regret to say there is not enough support for this disallowance in order for it to get through, and I thought I would expedite the operations of the Senate on this important day for many people, to get through the business as we can. However, I want to make this point. This regulation changes the ability of a family to enjoy drone activity, by virtue of the fact that you are only allowed within 30 metres of an active drone whilst you are directly responsible for the operation of that drone. That means that at Christmas time—or any other time—if a family receives a drone under their Christmas tree and wants to operate it, they are unable to do so in their own backyard. It means that those who want to take a photo at a party or a family gathering cannot do so using a drone or they risk getting a $900 fine, a case that has already taken place under the previous legislation, with a wedding ceremony for a couple of Channel 9 personalities.
This is not a malicious attempt by CASA or the minister to do this. This is simply an oversight. I would encourage senators to consider the implications of this, minor though they may be for some of you. But I know there are many people in my neighbourhood who enjoy flying and using drones to take photographs of themselves and their families, even being in a public park and doing it. This is an oversight. I think it can be redressed. I think it should be withdrawn. I have written to the minister about it. I'm sorry there isn't the support for it here, but I would encourage all of you to seriously consider the implications of this for the small minority of people, albeit well-meaning people and families, who simply want to enjoy a drone with their families.
Senator McGRATH (Queensland—Assistant Minister to the Prime Minister) (16:30): I seek leave to make a short statement.
The PRESIDENT: Leave is granted for one minute.
Senator McGRATH: The government takes drone safety and the safety of the public very seriously. The Civil Aviation Safety Authority is currently conducting a safety review of drone regulations. There have been a large number of submissions to this review. The instrument strengthened the rules which drone operators must abide by and increased the safety parameters for the public. This policy development is part of the larger package of reform in drone regulations the government is undertaking. The government does not support this disallowance motion, because it will weaken the safety protections for the Australian public.
Senator GALLAGHER (Australian Capital Territory—Manager of Opposition Business in the Senate) (16:31): I seek leave to make a short statement.
The PRESIDENT: Leave is granted for one minute.
Senator GALLAGHER: Labor cannot support the disallowance motion as we understand there's currently a Senate inquiry into the use and regulation of drones and unmanned aircraft. We are waiting for the outcome of the inquiry before we form an informed position on this matter.
Senator RICE (Victoria) (16:31): I seek leave to make a short statement.
The PRESIDENT: Leave is granted for one minute.
Senator RICE: The Greens also won't be supporting this disallowance today. The regulation that Senator Bernardi is proposing to disallow is an interim measure put in place by the minister to deal with ongoing community concerns about the operation of unmanned aerial vehicles. CASA have released a discussion paper and, in addition, the Regional and Rural Affairs and Transport References Committee are conducting an inquiry into the operations of unmanned aerial vehicles. We acknowledge that the interim regulation isn't perfect, but it's pre-emptive to disallow the instrument before the work of these review processes is complete.
Question negatived.
DOCUMENTS
Commonwealth Ombudsman
Consideration
Senator STEELE-JOHN (Western Australia) (16:32): I move:
That the Senate take note of the document.
This is not my first speech. I sit here today filled with those emotions which so often bring that sentence to your mouth: I hate to say I told you so. But I can't help thinking that my former colleague Senator Ludlam did in fact tell the chamber so when he launched his very passionate and effective campaign against the government's metadata laws when they were being passed through the chamber. One of the things which he observed at the time and did bring to this chamber's attention was the extent to which these laws could be used, inadvertently or otherwise, to access the metadata of journalists working in the field.
This chamber was repeatedly assured that this would not be possible, that this would not happen and that the various security agencies involved would have the necessary safeguards to be able to prevent such a thing occurring. But, in fact, it did occur. On 25 April 2017, the AFP disclosed to the Commonwealth Ombudsman that a breach of the Telecommunications Act 1979 had occurred from within the AFP. The breach involved access without a warrant of the metadata of journalists for the purpose of identifying journalistic sources. On 13 October 2015, this chamber introduced the TIA Act in order to attempt to protect journalistic sources from disclosure under the metadata retention scheme, but it seems that this has proved to be rather ineffective. In their report on the matter, the Ombudsman identified four main factors that contributed to the breach, including an insufficient awareness by the AFP of journalistic information warrants, a number of officers not fully appreciating their responsibilities when exercising metadata powers and the AFP itself lacking controls for preventing such a breach. The Ombudsman's report identified that there were four authorisations relating to access of journalists' metadata or identifying journalists' sources—four authorisations, not the one authorisation that the deputy commissioner of the AFP testified to during budget estimates in May.
It seems to me that our worst fears about the possible extent to which these laws may be misused have, indeed, come to pass. And although we are now assured that there have been steps taken to make sure that this does not occur again, I can't help thinking that if this unnecessary and rather Orwellian act of mass surveillance had not been perpetrated upon the Australian people such steps would not be taken. There are many journalists or former journalists in this place who would understand the importance to journalistic integrity of the preservation of journalistic sources. I ask those former members of the fourth estate to reflect upon the dangers posed to independent media by laws such as this. I would also like to thank my former colleague, Senator Ludlam, for his work in this space, rather prophetic as it has now proved to be, and conclude by echoing his words which he said during the debate—that, if you want this kind of information, you should get a warrant.
Question agreed to.
COMMITTEES
Human Rights Committee
Report
Senator SMITH (Western Australia—Deputy Government Whip in the Senate) (16:39): On behalf of the Joint Committee on Human Rights, I present the 12th report of 2017: Human rights scrutiny report.
Ordered that the report be printed.
Senator SMITH: I seek leave to have the tabling statement incorporated into Hansard.
Leave granted.
The statement read as follows—
I rise to speak to the tabling of the Parliamentary Joint Committee on Human Rights' Human Rights Scrutiny Report 12 of 2017.
The role of the committee is to examine bills and legislative instruments for compatibility with Australia's obligations under international human rights law. In doing so, the committee aims to enhance understanding of, and respect for, human rights in Australia and ensure that human rights issues are appropriately considered in legislative and policy development.
Like all parliamentarians, scrutiny committee members may, and often do, have different views in relation to the policy merits of legislation. The report does not assess the broader merits or policy objectives of particular measures but rather seeks to provide parliament with a credible technical examination of the human rights implications of legislation. Committee members performing a scrutiny function are not, and have never been, bound by the contents or conclusions of scrutiny committee reports.
This report contains assessments of bills introduced into the Parliament between 16 October and 16 November, and legislative instruments received between 15 September and 12 October. In order to ensure the committee's examination of this legislation is presented in a timely manner, this report is being tabled in the Senate today, and is scheduled to table in the other place next week.
Of the new bills considered in this report, the majority — 17 — were assessed as either promoting human rights, permissibly limiting human rights or not engaging human rights. The committee is seeking further information in relation to eleven bills and legislative instruments, and has provided a further four 'advice only' comments to legislation proponents.
The report also contains the committee's concluded examination of a number of bills and instruments. Following correspondence with the relevant minister, the committee has concluded that three of these bills and instruments are likely to be compatible with international human rights law. These are:
the Electoral and Referendum Amendment (ASADA) Regulations 2017;
the Treasury Laws Amendment (Housing Tax Integrity) Bill 2017; and
the Foreign Acquisitions and Takeovers Fees Imposition Amendment (Vacancy Fees) Bill 2017.
In relation to the Electoral and Referendum Amendment (ASADA) Regulations 2017, the committee initially raised concerns about the compatibility of the measure with the right to privacy. However, following correspondence from the minister and the provision of further information, the committee has concluded that the regulations are likely to be compatible with human rights. This was partly on the basis of a range of safeguards in place to protect individuals' right to privacy.
This process of liaising with the legislation proponent to identify relevant information is another example of the benefit of the scrutiny dialogue model. I encourage all legislation proponents when drafting statements of compatibility to draw upon any previous dialogue to ensure that the information that accompanies proposed legislation is comprehensive.
Finally, I note that the UN Human Rights Committee, in its recent concluding observations on the sixth periodic report of Australia, cited the establishment of the Parliamentary Joint Committee on Human Rights and its scrutiny function as one of several positive measures undertaken by Australia as a party to the International Covenant on Civil and Political Rights.
I encourage my fellow Senators and others to examine the committee's report to better inform their consideration of proposed legislation.
With these comments, I commend the committee's Report 12 of 2017 to the Senate.
Treaties Committee
Report
Senator SMITH (Western Australia—Deputy Government Whip in the Senate) (16:40): I present the 175th report of the Joint Standing Committee on Treaties: OECD tax measures BEPS; International Solar Alliance—agreement; Air Services—three agreements. I move:
That the Senate take note of the report.
Debate adjourned.
Cancer Funding
Report
Senator BILYK (Tasmania) (16:40): I present the report of the Select Committee into Funding for Research into Cancers with Low Survival Rates, together with the Hansard record of proceedings and documents presented to the committee.
Ordered that the report be printed.
Senator BILYK: I move:
That the Senate take note of the report.
For many years, I felt like a lone voice in the Senate talking about brain cancer and other low-survival cancers.
While others have paid tribute to individuals who have suffered from these diseases, in general these cancers have not received the attention that they deserve. But the inquiry by the Select Committee into Funding for Research into Cancers with Low Survival Rates has finally given the issue the attention it deserves. I have been proud to be the chair of this committee.
It's rare that you see tears at a Senate public hearing. In fact, many committee hearings can be extraordinarily dry affairs; the hearings for the Select Committee into Funding for Research into Cancers with Low Survival Rates were anything but. They were full of love, loss and, most importantly, overwhelmingly, of hope. The tears weren't always from those giving evidence. People in the audience and even committee members were seen to shed a tear.
On the morning of the first public hearing, having heard from cancer patients and their families, some of my committee colleagues voiced shock to me about the heart-wrenching nature of the evidence given. At the end of the day, what we do in this place, in this parliament, is for the good of the Australian people. It's to make their lives a little better than they otherwise would be. This inquiry put this fact into stark relief.
We heard from cancer patients, their loved ones, carers, nurses and doctors. Patients who may not have much time left used their precious time to tell us of their experience. We heard from the parents of small children who were bravely fighting brain cancers and other low-survival cancers, and we heard from the parents of children for whom, sadly, the fight was already over.
Every year, approximately 35 children, a classroom of children, as I have stated time and time and time again in this place, will die from brain cancer in Australia. That's more than any other childhood disease. We heard from absolutely brilliant researchers, each of whom get up in the morning with the aim of making sure that the survival rates for low-survival cancers improve.
The knowledge and expertise of researchers, medical practitioners and advocacy groups greatly informed the committee of the issues they face in research and treatment; researchers who envisage that in the future cancer patients with stomach, brain, oesophageal, lung, pancreatic, liver and gall bladder cancers as well as many other cancers would have hope—hope that there will be treatment options that lead to good outcomes and hope that these cancers will have a survival rate similar to breast cancer or leukaemia, for which the medical profession has made outstanding improvements over the last few decades.
On behalf of the committee, I would like to thank each and every one of the 117 witnesses who appeared before us. I thank you for your bravery, for your honesty, for your vision and hope, and for giving up your very precious time. The personal experiences of patients, their parents and children and their carers have been invaluable, and sharing your stories could not have been easy.
Over the past 12 months, the committee received over 300 submissions from a range of stakeholders and held seven public hearings on various days in Sydney, Brisbane, Melbourne and Canberra. The committee made 25 recommendations that have been adopted, I'm very happy to say unanimously, by the committee. The committee found that there is an inadequate amount of funding allocated to research into low-survival-rate cancers.
We all understand that there is a finite amount of government money available for all forms of medical research, and the committee welcomes the government's recent announcements of $13 million for competitive research grants from the Medical Research Future Fund for 'under-researched health priorities such as rare cancers and rare diseases' and the establishment of the Australian Brain Cancer Mission, a $100 million collaboration between government, the Cure Brain Cancer Foundation and the Minderoo Foundation. There's still $20 million to find, but I think that's likely to come through philanthropy as well.
However, the committee considers that a number of other changes can be made that will benefit low-survival-rate-cancer patients as well. For example, the committee has recommended that the National Health and Medical Research Council consider identifying low-survival-rate cancers as a National Health Priority Area in its next corporate plan. This would acknowledge that low-survival-rate cancers are a major national health issue that makes a significant contribution to the burden of disease, and it could result in significant additional research funding through the NHMRC.
The committee also recommended the implementation of an Australia-wide strategy to increase five-year survival rates for low-survival-rate cancers to above 50 per cent by 2027. Such a strategy will require the participation and commitment of the federal, state and territory governments, but a targeted approach with specific goals is essential if significant improvements are to be made for patients with low-survival-rate cancers.
The development of the strategy should:
take into account the suite of recommendations in the committee's report;
include consultation with researchers, clinicians, patients and patient groups;
give consideration to the roles of research, early diagnosis and access to medicines; and
assess the applicability of international approaches such as the US Recalcitrant Cancer Research Act of 2012 to the Australian context.
The progress of the strategy should be reported annually to COAG and be made available to the public.
The committee made numerous other recommendations intended to improve survival rates by increasing research into low-survival-rate cancers and improving support for cancer patients and their families. For example, the committee recommended:
a public awareness campaign and professional development for doctors to improve the detection and diagnosis of low-survival-rate cancers;
the possibility of expanding the Australian Cancer Database and establishing a national biobank so that medical researchers have access to the data and tissue they need;
ongoing funding for genomic research into low-survival-rate cancers;
changes to TGA, MSAC and PBAC processes to improve patient access to diagnostic tests and both new and repurposed medicines;
improved access to specialist cancer care coordinators or nurses for low-survival-rate cancer patients in every state and territory; and
simplification and streamlining of the application process for low-survival-rate-cancer patients and their carers trying to access the DSP or carer payments.
The committee heard about obstacles to establishing and accessing clinical trials in Australia such as:
delays in ethics and government approvals;
the lack of information about trials;
ineligibility against trial criteria; and
the tyranny of distance for regional and remote Australians, who have to travel to participate in trials.
For these reasons, the committee has also made recommendations to improve access for low-survival-rate-cancer patients to clinical trials such as further streamlining ethics and government approval processes; making information on clinical trials more user-friendly; facilitating innovative and flexible clinical trial design; and allowing trial participants to access patient travel subsidy schemes.
We know low-survival-rate cancers can have a particularly devastating impact on children and young people and their families. In addition to the physical and emotional toll, children miss school and parents often have to leave employment to provide full-time care for their children. Many parents told the committee they'd had extreme difficulty gaining the carer's pension to look after children with a terminal illness. Older patients told the committee of their difficulty in accessing the disability support pension. Consequently, the committee recommends that the Australian government further simplifies and streamlines the application process for low-survival-rate patients and their carers in seeking to access the disability support pension or carer allowance or payment.
The committee was also told that transition from paediatric to adult oncology care is sometimes problematic and abrupt. We need to ensure there's a seamless continuation of treatment for these young people and that their health is not impacted by bureaucratic issues within treatment facilities. The committee has therefore recommended that the Australian government leads a process through COAG to ensure that this transition occurs in a coordinated way that preserves continuity and quality of care.
Collectively, the committee's recommendations represent a suite of measures which I hope will increase research into low-survival-rate cancers and result in significantly improved outcomes for patients with these cancers. My contribution today barely scratches the surface of the complex detail contained in this report, and I encourage anyone with an interest to read it.
I would also like to express my sincerest thanks to the committee secretariat, in particular committee secretary Sophie Dunstone and senior research officer Nicola Knackstredt, who worked in a knowledgeable, professional and extremely well organised manner to guide the committee through such a complex inquiry. I would also like to thank my fellow committee members. Committee work is one area where senators across party lines can work cooperatively. My fellow committee members undertook this inquiry with the seriousness and diligence that this inquiry so richly deserved. We saw the best of the Senate during the conduct of this inquiry. (Extension of time granted) It's my hope that each of these recommendations, large and small, can be implemented by the government because each of them will make an improvement to the lives of people with low-survival-rate cancers and hopefully it will result in an Australia where current low-survival cancer patients can expect quality and longevity of life comparable to those with cancers that have higher survival rates. It's with great pleasure that I commend the report to the Senate.
Senator GRIFF (South Australia) (16:52): I too commend this report of the Select Committee on Funding for Research into Cancers with Low Survival Rates. It is a comprehensive body of work with, as Senator Bilyk mentioned, 25 recommendations that will have a profound impact on the wellbeing of those with what are now known as low-survival cancers. The aim is of course to move these cancers from being low-survival to survivable. Broadly the recommendations cover research funding and coordination; clinical trial awareness, access and approvals; improving early detection and identification; repurposing drugs; fast-tracking innovative treatment and particularly the utilisation of genomic research; patient care; costs; and navigation through the disease processes.
All of the recommendations came out of expert medical and scientific evidence that was provided and the personal experiences of cancer sufferers and their families and friends. The hearings, as Senator Bilyk mentioned, were heart-wrenching. All senators—in fact, the majority of the people in the room—were wiping away the tears at the first one. It was a very emotional time for everyone. Many witnesses found it tough to tell their story—or that of their loved one, though they were compelled to do so in order to honour the memory of their loved one and to agitate for a better outcome for others.
Being a member of this inquiry opened my eyes. Like other Australians, I knew cancer was bad and some cancers were worse than others, but I had no idea there was so much inequality in terms of treatment options and research dollars. I had no idea that some cancers, such as pancreatic cancer, are as deadly now as they were a generation ago. It is incredible to think that at a time when we have made so many remarkable strides in so many fields of medical research the prognosis for a host of cancers has not improved. For every 100 people diagnosed with mesothelioma, only six people will survive more than five years. For every 100 people diagnosed with pancreatic cancer this year, fewer than eight people will still be here in five years time. Only one in five people will survive a brain cancer diagnosis, and what makes this even more tragic is that this is one of the most common cancers in children and young adults.
Low-survival cancers are defined as those where fewer than 50 per cent of patients survive five years past diagnosis. There are only about 10 of these cancers, but they account for 30 per cent of all deaths. And you know what's even more shocking? These low-survival cancers only receive about six per cent of research funding. Some low-survival cancers are also rare cancers. There are about 186 rare cancers, and the two combined account for almost half of all cancer deaths in Australia. These killer diseases are stuck in a research and treatment no-man's-land. Research grants are usually allocated based on population need and previous research successes, but when it comes to rare and low survival cancers, there are too few research successes to create the sort of momentum that might lead to more funding and more breakthroughs.
We know from what has been achieved with breast cancer and prostate cancer that investment in research, surveillance and public education can turn these harsh statistics around. Of 100 men diagnosed with prostate cancer this year, 95 will still be alive in five years time. Ninety per cent of people with breast cancer or melanoma, which was once the scariest of killers, will beat their diagnosis and be with us for many, many years to come. It is crazy, isn't it, that you might think yourself lucky to get prostate cancer and not pancreatic cancer?
We would all want every newly diagnosed patient to have such a positive prognosis and hope for the future but, as this inquiry highlighted, even with cancer, there are the haves and the have-nots. There are a number of reasons for this, but it essentially boils down to numbers. There are relatively few people who can be studied and enrolled in clinical trials for rare and low-survival cancers and, hence, not a big enough market of potential patients to make it worthwhile for pharmaceutical companies to invest in drug development. There are also very few survivors to push for change and to fight for more funding, including philanthropic funding, which is a crucial source of additional income for researchers and patient support services—and so survival rates have stalled.
But we do not have to keep accepting this situation. We have the power to turn this around. We would like to see the National Health and Medical Research Council make low-survival cancers a national health priority area so that this gets a larger slice of the NHMRC's existing funding pie. We also need to rethink the one-size-fits-all approach to cancer treatment and to eliminate the regulatory hurdles that prevent patients accessing the most appropriate therapy for their particular tumours. The standard approach to cancer treatment in Australia is to treat cancers by type—'We treat colon cancer this way and we treat ovarian cancer that way'—but more and more research shows that the same type of cancer can have a variety of genetic causes and so the best approach is a much more individualised one. This is a no-brainer, but we also need to better educate GPs and the community about the symptoms of low-survival cancers, because early detection can make a life and death difference. According to Rare Cancers Australia's submission, up to 93 per cent of women are likely to survive more than five years if ovarian cancer is detected at an early stage. However, only 15 per cent of all cancers are diagnosed at an early stage.
There is plenty government can do—and do today, in fact—to start giving hope and a better prognosis to the thousands of Australians who will, in the coming year, be diagnosed with rare and low-survival cancer. I would urge government to respond quickly and accept all 25 of the committee's recommendations, because delay would literally mean the difference between life and death for many thousands of Australians.
Thank you to the chair, Senator Bilyk, for your amazingly passionate advocacy and for bringing about this inquiry. Thank you to the secretariat for your organisational management and reporting expertise. Lastly, and most importantly, I want to thank the many individuals—and their families—affected by cancer who wrote submissions and presented in person at the inquiry. I know how painful it was for some of you to speak on the suffering of your loved ones. I want to assure you that the Senate recognises your sacrifice in speaking, and we will work together to make low-survival cancers a thing of the past. I seek leave to continue my remarks later.
Leave granted; debate adjourned.
Legal and Constitutional Affairs References Committee
Report
Senator PRATT (Western Australia) (16:59): I present the report of the Legal and Constitutional Affairs References Committee on the law of contempt, together with the documents presented to the committee.
Ordered that the report be printed.
Senator PRATT: by leave—I move:
That the Senate take note of the report.
Question agreed to.
COMMITTEES
Consideration
The following order of the day relating to committee reports and government responses was considered:
Economics References Committee—Non-conforming building products: Protecting Australians from the threat of asbestos—Interim report.
DOCUMENTS
Order for the Production of Documents
Documents were tabled pursuant to the order of the Senate for the production of documents concerning the Registered Organisations Commission's investigation into the Australian Workers' Union.
COMMITTEES
Membership
Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (17:01): by leave—I move:
That senators be discharged from and appointed to committees as follows:
Foreign Affairs, Defence and Trade Legislation Committee—
Appointed—Substitute member: Senator Kitching to replace Senator Gallacher for the consideration of the 2017-18 supplementary Budget estimates on Friday, 15 December 2017
Red Tape—Select Committee—
Appointed—Participating member: Senator Anning
Rural and Regional Affairs and Transport References Committee—
Appointed—Participating member: Senator Anning
Question agreed to.
BILLS
Marriage Amendment (Definition and Religious Freedoms) Bill 2017
In Committee
Consideration resumed.
The TEMPORARY CHAIR ( Senator Gallacher ) (17:02): The question is that the bill as amended be agreed to.
Senator PATERSON (Victoria) (17:02): by leave—I and at the request of Senator Fawcett move amendments (1) to (10) on sheet 8327 together:
(1) Clause 1, page 1 (lines 6 and 7), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment (Definition and Protection of Freedoms) Act 2017".
(2) Clause 2, page 2 (table item 2), omit the table item, substitute:
2. Schedule 1, Parts 1, 1A and 2 |
The day after this Act receives the Royal Assent. |
|
(3) Schedule 1, item 1, page 4 (lines 4 to 16), omit the item, substitute:
1 After section 2
Insert:
2A Objects of this Act
(1) It is an object of this Act to create a legal framework that:
(a) provides that marriage means:
(i) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or
(ii) the union of 2 people to the exclusion of all others, voluntarily entered into for life; and
(b) fulfils Australia's international obligations, and addresses matters of international concern, including:
(i) protecting the rights of freedom of thought, conscience, religion, expression and association in relation to the holding, expressing, or acting on, certain beliefs; and
(ii) preventing discrimination against people and entities in relation to holding, expressing, or acting on, certain beliefs; and
(iii) making it unlawful for people or entities to be deprived of benefits, or to be subjected to detriments, obligations or sanctions, for exercising freedom of thought, conscience, religion, expression and association in holding, expressing, or acting on, certain beliefs; and
(c) protects freedoms described in subparagraphs (b) (i), (ii) and (iii); and
(d) eliminates, as far as possible, discrimination against persons or entities on the ground of religious or conscientious belief; and
(e) ensures, as far as practicable, that everyone has the same rights to equality, regardless of religious or conscientious belief, as the rest of the community.
Note: The objects of this Act relate to the marriage power and, to the extent that the objects provide for the protection of freedoms, to the external affairs power.
(2) For the purposes of paragraph (1) (b), Australia's international obligations include obligations under the following:
(a) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23), including Articles 18, 19 and 22;
(b) the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40), including Article 5;
(c) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5), including Article 13;
(d) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4).
(3) In addition, the elimination of intolerance and discrimination on the basis of religion or belief, including as evidenced by the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by the General Assembly of the United Nations on 25 November 1981 (resolution 36/55) is a matter of international concern.
2B Alternative constitutional basis for Part VAA
(1) Without prejudice to its effect apart from this section, Part VAA also has effect as provided by this section.
Corporations power
(2) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision:
(a) confined to a person that is a corporation (within the meaning of paragraph 51(xx) of the Constitution); or
(b) confined to a person:
(i) who is an officer or employee of such a corporation; and
(ii) in connection with the person's duties as an officer or employee that relate to the trading activities of the corporation as a trading corporation or the financial activities of the corporation as a financial corporation (as the case may be).
External affairs power
(3) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to giving effect to the international obligations and matters of international concern including those mentioned in section 2A.
Trade and commerce power
(4) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place in the course of, or in relation to, trade or commerce (within the meaning of paragraph 51(i) of the Constitution).
(5) Subsection (4) does not apply to the extent (if any) that its application would infringe section 92 of the Constitution.
Note: Section 92 of the Constitution requires trade among the States to be absolutely free.
Territories power
(6) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place wholly or partly in a Territory.
Telecommunications power
(7) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct is engaged in using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).
Banking power
(8) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place in the course of, or in relation to, banking (within the meaning of paragraph 51(xiii) of the Constitution).
Insurance power
(9) Part VAA has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place in the course of, or in relation to, insurance (within the meaning of paragraph 51(xiv) of the Constitution).
(4) Schedule 1, page 5 (after line 4), after item 2, insert:
2A Subsection 5(1)
Insert:
Commonwealth authority means:
(a) a Minister; or
(b) an Agency within the meaning of the Public Service Act 1999; or
(c) a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth enactment, not being an organisation that is registered under the Fair Work (Registered Organisations) Act 2009 or a branch of such an organisation; or
(d) a body established or appointed by the Governor‑General, or by a Minister, otherwise than by or under a Commonwealth enactment; or
(e) a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth enactment, other than a person who, by virtue of holding that office, is the Secretary of a Department; or
(f) a person holding or performing the duties of an appointment, being an appointment made by the Governor‑General, or by a Minister, otherwise than under a Commonwealth enactment; or
(g) an incorporated company over which the Commonwealth, or a body or authority referred to in paragraph (a), (b), (c), (d), (e) or (f), is in a position to exercise control;
(h) a federal court; or
(i) the Australian Federal Police; or
(j) a Norfolk Island agency as defined in the Privacy Act 1988.
entity: see section 5AA.
law, unless otherwise stated to the contrary, includes:
(a) a Commonwealth law; and
(b) a law of a State or Territory.
(5) Schedule 1, page 5 (after line 12), after item 4, insert:
4A Subsection 5(1)
Insert:
public authority means:
(a) a Commonwealth authority;
(b) a State or Territory authority;
(c) a local government body established by or under the law of the Commonwealth, a State or Territory;
(d) an officer or employee of any of the authorities mentioned in paragraph (a), (b) or (c), when acting in the capacity of an officer or employee of an authority;
(e) a person or entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of another public authority (whether under contract or otherwise);
(f) a person or entity declared by the regulations to be a public authority.
Note: A non‑government school in educating students may be exercising functions of a public nature but as it is not doing so on behalf of the government it is not a public authority.
relevant belief:
(a) for a person: see subsection 5AC(1); and
(b) for an entity: see subsection 5AC(2).
relevant marriage belief:
(a) for a person: see subsection 5AB(1); and
(b) for an entity: see subsection 5AB(2).
religious body or organisation: an entity is a religious body or organisation if:
(a) the entity is a body established for religious purposes to which section 37 of the Sex Discrimination Act 1984 applies; or
(b) the entity is an educational institution established for religious purposes to which section 38 of the Sex Discrimination Act 1984 applies.
(6) Schedule 1, page 5 (after line 17), after item 5, insert:
5A Subsection 5(1)
Insert:
State or Territory authority means:
(a) a State or Territory Minister; or
(b) a Department of State of a State or Territory; or
(c) a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a law of a State or Territory, other than an association of employers or employees that is registered or recognised under a law of a State or Territory dealing with the resolution of industrial disputes; or
(d) a body established or appointed, otherwise than by or under a law of a State or Territory, by:
(i) a Governor of a State; or
(ii) the Australian Capital Territory Executive; or
(iii) the Administrator of the Northern Territory; or
(iv) a State or Territory Minister; or
(e) a person holding or performing the duties of an office established by or under, or an appointment made under, a law of a State or Territory, other than the office of head of a State or Territory Department (however described); or
(f) a person holding or performing the duties of an appointment made, otherwise than under a law of a State or Territory, by:
(i) a Governor of a State; or
(i) the Australian Capital Territory Executive; or
(iii) the Administrator of the Northern Territory; or
(iv) a State or Territory Minister; or
(g) an incorporated company over which the State or Territory, or a body or authority referred to in paragraph (a) (b) (c) (d) (e) or (f), is in a position to exercise control; or
(h) a State or Territory court; or
(i) a State or Territory police force.
5B After section 5
Insert:
5AA Meaning of entity
(1) For the purposes of the Act, an entity means:
(a) an entity (other than an individual) within the meaning of section 184‑1 of the ANew Tax System (Goods and Services Tax) Act 1999; and
(b) a non‑entity joint venture within the meaning of section 195‑1 of the ANew Tax System (Goods and Services Tax) Act 1999.
Note: The term entity includes body corporates, body politics, partnerships, unincorporated associations or other bodies of persons, trusts and superannuation funds.
(2) For the purposes of subsection (1), an entity is an entity regardless of whether:
(a) the entity is for‑profit or not‑for‑profit; or
(b) the entity is a religious body or organisation; or
(c) the entity operates to make a profit or not.
5AB Meaning of relevant marriage belief
(1) A person holds a relevant marriage belief if the person holds:
(a) a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or
(b) any one or a combination of genuine religious or conscientious beliefs that are constitutive of, supporting of or a corollary of the belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, which beliefs may include, without limitation, any of the following beliefs:
(i) a marriage that is not a union of a man or a woman is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person;
(ii) the family structure of a man and a woman united in marriage with their children is a fundamental building block of human society, and this family structure has significant advantages for the nurture and raising of children;
(iii) sexual relations should only occur within a marriage, understood as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life;
(iv) the gender difference and complementarity of men and women is an inherent and fundamental feature of human society and is reflected in the gender difference and complementarity of a man and a woman united in marriage;
(v) a fundamental feature of a marriage between a man and a woman is the modelling for children born from, or raised in, that marriage of the gender difference and complementarity of the man and the woman;
but for the avoidance of doubt, does not include the belief mentioned at paragraph 5AC(1) (b).
(2) An entity holds a relevant marriage belief if the entity has adopted:
(a) a belief mentioned in paragraph (1) (a); or
(b) one or more beliefs mentioned in paragraph (1) (b);
as beliefs the entity holds.
5AC Meaning of relevant belief
(1) A person holds a relevant belief if the person holds:
(a) a relevant marriage belief; or
(b) a genuine religious or conscientious belief that:
(i) a same‑sex relationship is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person; or
(ii) the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth; or
(iii) any one or a combination of genuine religious or conscientious beliefs that are constitutive of, supporting of or a corollary of a belief mentioned in subparagraphs (1) (b) (i) or (1) (b) (ii).
(2) An entity holds a relevant belief if the entity has adopted:
(a) a belief mentioned in paragraph (1) (a); or
(b) one or more beliefs mentioned in paragraph (1) (b);
as beliefs the entity holds.
5AD Determining when a belief is held etc.
(1) For the purposes of this Act, a person or entity holds a genuine belief, or holds a genuine religious or conscientious belief, or genuinely believes, if the holding of the belief (inclusive of the person's or entities beliefs as to the actions, refusals, omissions or expressions that are consistent with, a consequence of, made in connection with, based upon, constitutive of, supporting of, or a corollary of that belief)is not fictitious, capricious or an artifice.
(2) For the purposes of subsections 5AB(2) and 5AC(2), but without limiting those subsections, an entity may state or adopt a belief as a belief the entity holds by:
(a) including the belief in its governing documents, organising principles, statement of beliefs or statement of values; or
(b) adopting principles, beliefs or values of another entity which include the belief;
(c) adopting principles, beliefs or values from a document or source which include the belief; or
(d) acting consistently with that belief.
(3) For the purposes of this Act, if an authorised celebrant, chaplain or an authorised officer holds a relevant marriage belief or a relevant belief, then in holding, expressing or acting on that belief:
(a) whether or not another person who is to be married is a man or a woman is to be determined by the authorised celebrant, chaplain or authorised officer; and
(b) in determining whether the other person is a man or a woman, if the authorised celebrant, chaplain or authorised officer reasonably believes and genuinely believes that the current legal status of the other person as a man or a woman is different from the legal status of the other person as a man or a woman at the time of the other person's registration following the other person's birth, the authorised celebrant, chaplain or an authorised officer may disregard the current legal status of the other person's sex or gender, or their gender identity or intersex status.
5C After section 5A
Insert:
5B Act binds Crown
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an offence.
5D Section 6 (heading)
Repeal the heading, substitute:
6 Interaction of Act with State and Territory laws
Act (other than Part VAA) not to exclude operation of certain State and Territory laws
5E Section 6
Omit "This Act", substitute "(1) This Act (other than Part VAA)".
5F At the end of section 6
Add:
Part VAA of this Act is intended to " cover the field "
(2) It is the intention of Parliament that, in order to recognise the protections, rights, privileges and entitlements of a person or entity that holds a relevant belief or a relevant marriage belief and to ensure that such protections, rights, privileges and entitlements are recognised equally and without discrimination in all States and Territories, Part VAA operates:
(a) to cover the field in relation to those protections, rights, privileges and entitlements; and
(b) to provide a complete, exhaustive and exclusive statement of the law relating to those protections, rights, privileges and entitlements; and
(c) to exclude and limit the operation of the laws of the States and Territories in relation to those protections, rights, privileges and entitlements.
(3) For the avoidance of doubt, and without limiting subsection (2), if a protection, right, privilege or entitlement granted, or a limitation provided for under Part VAA of this Act, is inconsistent with a protection, right, privilege or entitlement granted, or a limitation provided for, under a law of a State or Territory, this law shall prevail, and the State or Territory law shall, to the extent of the inconsistency, be invalid.
(4) In addition, proceedings must not be brought against a person, and a person must not be convicted of an offence under a State or Territory law or otherwise be found to have contravened a provision of a State or a Territory law, if:
(a) a law of a State or Territory deals with a matter dealt with by Part VAA of this Act; and
(b) an act or omission by a person that constitutes an offence against, or a contravention of, that law is permitted by Part VAA of this Act.
(7) Schedule 1, page 10 (after line 6), after item 17, insert:
17A At the end of section 43
Add "(subject to Part VAA)".
(8) Schedule 1, page 15 (after line 26), after item 58, insert:
58A After Part VA
Insert:
Part VAA—Freedom of thought, conscience, religion, expression and association in relation to holding certain beliefs
Division 1—Protection of freedoms
88J Freedom to hold or express relevant belief
(1) Subject to subsections (2) and (3), a person or an entity has the right to freedom of thought, conscience, religion or belief in relation to holding or expressing a relevant belief, including the right to have or adopt that belief.
(2) Despite any law, it is lawful for a person or an entity to hold or lawfully express a relevant belief.
(3) A reference in this section to lawful expression of a relevant belief:
(a) does not include expression that would constitute an offence against or a contravention of, a law;
(b) for the avoidance of doubt does include expression that is not an offence against, or a contravention of, a law because of section 88KA.
88JA Freedom to hold, express or act on relevant marriage belief
(1) Subject to subsections (2) and (3), a person or an entity has the right to freedom of thought, conscience, religion or belief in relation to holding, expressing, or acting on, a relevant marriage belief, including:
(a) the right to have or adopt that belief; and
(b) the right to manifest that belief:
(i) individually or in community with others; and
(ii) in public or private; and
(iii) in worship, observance, practice or teaching; and
(iv) in any action or refusal to act.
Note: For the purposes of subparagraph (1) (b) (iv), examples include acting, or refusing to act, in the course of engaging in any of the following for the purposes of preparing for, solemnising or celebrating a marriage:
(a) a for‑profit or a not‑for‑profit business;
(b) duties as an employer or an employee;
(c) activities related to community and public affairs.
(2) Despite any law, it is lawful for a person or an entity to hold or lawfully express a relevant marriage belief and engage in lawful conduct which manifests a relevant marriage belief.
(3) A reference in this section to lawful expression and lawful conduct:
(a) does not include expression or conduct that would constitute an offence against or a contravention of, a law;
(b) for the avoidance of doubt does include expression or conduct that is not an offence against, or a contravention of, a law because of section 88KA.
(4) This section does not imply any limitation on the rights of a person or entity to act on a relevant belief.
88K Protection from unfavourable treatment
(1) Despite any law it is unlawful for a public authority or a relevant person or entity within the meaning of subsection (2) to treat or propose to treat another person or entity unfavourably, or subject or propose to subject the person or entity to any detriment or disadvantage, obligation or sanction, or denial of any benefit, whether directly or indirectly, including, without limitation, in relation to any of the following:
(a) the employment of a person;
(b) the engagement of a contractor or volunteer;
(c) academic, trade or professional qualifications, accreditation or licensing;
(d) accommodation;
(e) education;
(f) the provision of economic benefits, including grants, funding or subsidies;
(g) the supply or acquisition of goods, services or facilities;
(h) the assessment or selection of a person or entity to be a supplier or acquirer of goods or services or facilities;
(i) the administration or enforcement of Commonwealth, State, Territory or local government laws and programs, including the granting of funding under those laws or programs;
because the other person or entity:
(j) holds or expresses a relevant belief other than a relevant marriage belief; or
(k) holds or expresses a relevant marriage belief; or
(l) engages in any lawful act or lawfully refuses or omits to engage in an act because the person or entity genuinely believes that the act or refusal or omission is consistent with a relevant marriage belief; or
(m) has a characteristic that appertains generally to a person or entity described in paragraphs (j), (k) or (l); or
(n) has a characteristic that is generally imputed to a person or entity described in paragraphs (j), (k) or (l); or
(o) associates with a person or entity described in paragraphs (j), (k) or (l) or associates with a group or is a member of a group which is an entity described in paragraphs (j), (k) or (l) or which includes a person or entity described in paragraphs (j), (k) or (l); or
(p) employs or engages as a contractor or volunteer (or has not refused to employ or engage as a contractor or volunteer) a person who is described in paragraphs (j), (k) or (l); or
(q) provides goods, services, funding, subsidies or other economic benefits to a person or entity who is described in paragraphs (j), (k) or (l) (or has not refused to do so); or
(r) acquires goods, services, funding, subsidies or other economic benefits from a person who is described in paragraphs (j), (k) or (l) (or has not refused to do so).
Note: Examples of detrimental action made unlawful by section 88K include the following:
(a) A public authority, such as a government agency, refuses to appoint or hire or promote or dismisses a person, employee or contractor because that person holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.
(b) A public authority, such as a government agency or private sector body exercising professional or trade accreditation functions on behalf of government or under statutory authority refuses to accredit or imposes disadvantageous conditions on an accreditation of a person or entity because the person holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.
(c) A public authority such as a local government or State or Territory or Commonwealth Government department or agency refuses to provide a grant or funding or provides it on disadvantageous conditions because the grant applicant holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.
(d) A government education authority, including a government school, or a private school when acting on the instruction of or in accordance with its funding contract with a government authority, suspends or expels a student or bans or refuses access to facilities or funding to a student club because the student or the student club holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.
(e) A public authority refuses to supply to or acquire from a person or entity goods or services or facilities or discriminates against the person or entity in a tender process because the person or entity holds or expresses a relevant marriage belief or a relevant belief or is associated with a person or entity which does so.
(2) In this section, a relevant person or entity means a person or entity which engages in the conduct described in subsection (1) because it is caused or induced to do so by a public authority, including being caused or induced to do so:
(a) by a request, instruction or expectation of a public authority; or
(b) by a condition of a contract or arrangement with a public authority; or
(c) by a condition of direct or indirect funding by a public authority; or
(d) by a condition of a licence or permission granted by a public authority.
(3) It is unlawful for a public authority to cause or induce a relevant person or entity to engage in conduct described in subsection (1), including in the ways described in subsection (2).
(4) A request, instruction, expectation or condition of the following kind is void to the extent that it would cause or induce the person or entity to engage in conduct described in subsection (1):
(a) a request, instruction or expectation of a public authority directed to a person or entity;
(b) a condition of a contract or arrangement between a public authority and a person or entity;
(c) a condition of direct or indirect funding by a public authority to a person or entity;
(d) a condition of a licence or permission granted by a public authority to a person or entity.
(5) The reference in paragraph (1) (l) to engaging in a lawful act or lawfully refusing or omitting to engage in an act:
(a) does not include engaging in an act, refusal or omission that would constitute an offence against, or a contravention of, a law; and
(b) for the avoidance of doubt does include engaging in an act, refusal or omission that is not an offence against, or a contravention of, a law because of section 88KA.
88KA Protection from certain laws when expressing or acting on a relevant marriage belief or a relevant belief
Relevant marriage belief
(1) Subject to subsection (10), despite any law, where:
(a) a person or entity holds a relevant marriage belief; and
(b) the person or entity expresses a statement or opinion (in any manner) which the person or entity genuinely believes is consistent with the relevant marriage belief; and
(c) the expression of the statement or opinion would not be reasonably likely, in all the circumstances, to threaten or harass another person or group of persons on the basis of the sexual orientation, gender identity, intersex status, marital or relationship status or the family responsibilities of the person or persons in the group;
the expression of the statement or opinion does not constitute an offence against or contravention of a law prohibiting vilification or a law which makes it unlawful to offend, humiliate, intimidate, insult or ridicule another person.
(2) For the purposes of subsection (1) a statement or opinion may be expressed in any manner including by acts, words, sounds, images or writing.
(3) Subject to subsection (10), despite any law, where:
(a) a person or entity holds a relevant marriage belief; and
(b) the person or entity engages in conduct, other than an expression mentioned in subsection (1), which the person or entity genuinely believes is consistent with the relevant marriage belief;
the conduct does not contravene a law of a State or Territory prohibiting discrimination.
(4) For the purposes of subsection (3), conduct includes engaging in an act, or refusing or omitting to engage in an act.
Relevant belief
(5) Subject to subsection (10), despite any law, where:
(a) a person or entity holds a relevant belief; and
(b) the person or entity expresses a statement or opinion (in any manner) which the person or entity genuinely believes is consistent with the relevant belief; and
(c) the expression of the statement or opinion would not be reasonably likely, in all the circumstances, to threaten or harass another person or group of persons on the basis of the sexual orientation, gender identity, intersex status, marital or relationship status or the family responsibilities of the person or persons in the group;
the expression of the statement or opinion does not constitute an offence against or contravention of a law prohibiting vilification or a law which makes it unlawful to offend, humiliate, intimidate, insult or ridicule another person.
(6) For the purposes of subsection (5) a statement or opinion may be expressed in any manner including by acts, words, sounds, images or writing.
(7) Subject to subsection (10), despite any law, where:
(a) a person or entity holds a relevant marriage belief; and
(b) the person or entity engages in conduct, other than an expression mentioned in sub-section (1), which the person or entity genuinely believes is consistent with the relevant marriage belief;
the conduct does not contravene a law of a State or Territory prohibiting discrimination.
(8) For the purposes of subsection (7), conduct includes engaging in an act, or refusing or omitting to engage in an act.
(9) The inclusion of relevant marriage belief within relevant belief at section 5AC does not imply any limitation on the rights of a person or entity to act on a relevant marriage belief.
(10) Nothing in this section prevents a person or entity committing an offence in relation to discrimination or contravening a prohibition on discrimination in the Sex Discrimination Act 1984 if the person or entity engages in conduct which under that Act is unlawful discrimination against another person.
88KB Determining what is a public authority
(1) In determining if a function is of a public nature within the meaning of paragraph (e) of the definition of public authority in subsection 5(1) the factors that may be taken into account include:
(a) that the function is conferred on the entity by or under a statutory provision;
(b) that the function is connected to or generally identified with functions of government;
(c) that the function is of a regulatory nature;
(d) that the entity is publicly funded to perform the function.
(2) To avoid doubt:
(a) the factors listed in subsection (1) are not exhaustive of the factors that may be taken into account in determining if a function is of a public nature; and
(b) the fact that one or more of the factors set out in subsection (1) are present in relation to a function does not necessarily result in the function being of a public nature.
(3) For the purposes of paragraph (e) of the definition of public authority in section 5(1) an entity may be acting on behalf of the public authority even if there is no agency relationship between the entity and the public authority.
(4) For the purposes of paragraph (e) of the definition of public authority in section 5(1) the fact that an entity is publicly funded to perform a function does not necessarily mean that it is exercising that function on behalf of the public authority
88L Scope of rights—expressing a relevant marriage belief or a relevant belief
The right of a person or an entity that holds a relevant marriage belief or a relevant belief to express that belief includes, but is not limited to, the freedom to seek, receive and impart information and ideas of all kinds, either orally, in writing or in print, in the form of art, or through any other medium.
88P Requiring a person to express, publish, associate with or support statements or opinions
(1) Despite any law, it is unlawful for a person or entity to:
(a) require another person or entity to engage in relevant conduct in relation to a statement or opinion; or
(b) treat another person or entity unfavourably because the other person or entity refuses or omits to engage in relevant conduct in relation to a statement or opinion;
if the other person or entity holds a relevant belief and genuinely believes that the statement or opinion is not consistent with that belief.
(2) In subsection (1) relevant conduct in relation to a statement or opinion means:
(a) expressing, publishing or disseminating the statement or opinion;
(b) producing or distributing a thing which expresses or supports or endorses the statement or opinion;
(c) associating the second person or entity with the statement or opinion; or
(d) endorsing or supporting the statement or opinion.
(3) Despite any law, it is lawful for a person or entity to refuse or fail to comply with a requirement mentioned in subsection (1).
Note: Examples of unlawful conduct under section 88P include any one or more requirements that a printer, signwriter, artisan, film‑maker or media business which holds a relevant marriage belief or a relevant belief express a statement or opinion or publish or produce a poster, sign, video or media content which expresses or endorses a statement or opinion that they genuinely believe is not consistent with that belief.
88Q Religious bodies or organisations
(1) Despite any law, a religious body or organisation may engage in a lawful act, or lawfully refuse or omit to engage in an act, if the body or organisation:
(a) is an entity that holds a relevant marriage belief or a relevant belief; and
(b) genuinely believes that the act, refusal or omission is consistent with the holding of that belief.
(2) The reference in subsection (1) to engaging in a lawful act or lawfully refusing or omitting to engage in an act:
(a) does not include engaging in an act, refusal or omission that would constitute an offence against, or a contravention of, a law;
(b) for the avoidance of doubt does include engaging in an act, refusal or omission that is not an offence against, or a contravention of, a law because of section 88KA.
88R Right not to attend class if material taught is not consistent with a relevant marriage belief or a relevant belief
(1) This section applies to a person who:
(a) holds a relevant marriage belief or a relevant belief; and
(b) either:
(i) is a parent or guardian of a student of an educational institution who has not attained the age of 16; or
(ii) is a student of an educational institution who has attained the age of 16.
(2) Despite any law, if a person genuinely believes that material taught by the educational institution in a class is not consistent with the relevant marriage belief or relevant belief held by the person, the person may request the principal of the educational institution to:
(a) if the person is a parent or guardian of a student—release the student from attendance of that class and any subsequent class in which that material is taught (or the relevant parts of those classes); and
(b) if the person is a student—be released from attendance of that class and any subsequent class (or the relevant parts of those classes) in which that material is taught.
(3) The request must:
(a) be in writing; and
(b) be made at least 24 hours before the start of the first class in respect of which the request is made.
(4) The principal must release the student from the class (or the relevant parts of a class), and any subsequent class, if the principal is satisfied that the request has been made by the person on the basis that the person holds a relevant marriage belief or a relevant belief.
(5) Where a student is released from a class (or the relevant parts of a class) the principal must take all reasonable steps to arrange adequate supervision of the student during the period of that release.
(6) Where an educational institution proposes to teach or present material that is likely to be objectionable to a person who holds a relevant marriage belief or a relevant belief, the institution must:
(a) notify the person in writing at least a week in advance of the day of the first relevant class that:
(i) the class or classes will contain that material; and
(ii) the student has the right to be released from the class or classes or the relevant part of the classes; and
(b) ensure that the material is taught in a single class or as few classes as is possible.
Division 2—Offences
88S Victimisation
(1) A person commits an offence if the person commits an act of victimisation against another person.
Penalty: 25 penalty units.
(2) For the purposes of subsection (1), a person is taken to have committed an act of victimisation against another person if the person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a) has made, or proposes to make, a complaint under the Australian Human Rights Commission Act 1986; or
(b) has brought, or proposes to bring, proceedings under that Act or under this Part; or
(c) has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under that Act; or
(d) has attended, or proposes to attend, a conference held under that Act; or
(e) has appeared, or proposes to appear, as a witness in a proceeding under that Act or under this Part; or
(f) has reasonably asserted, or proposes to assert, any rights of the person or of any other person under that Act or under this Part; or
(g) has made an allegation that a person has done an act that is in contravention of or unlawful under a provision of this Part;
or on the ground that the first‑mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g).
(3) It is a defence to a prosecution for an offence under subsection (1) constituted by subjecting, or threatening to subject, a person to a detriment on the ground that the person has made an allegation that another person had done an act that was unlawful by reason of a provision of Division 1 of this Part if it is proved that the allegation was false and was not made in good faith.
Division 3—Remedies
Subdivision A—Civil enforcement
88T Actions for loss or damage
(1) A person:
(a) who suffers loss or damage; or
(b) who is detrimentally affected by the conduct of another person; or
(c) whose rights are interfered with;
because another person contravenes, or was involved in contravening, a provision of Part VAA of this Act may bring an action in a court of competent jurisdiction to recover the amount of any loss or damage arising from the contravention from the other person.
(2) An action mentioned in subsection (1) may be brought by:
(a) an interested person; or
(b) a person acting on behalf of an interested person.
(3) An action under subsection (1) may only be begun within 3 years after the day on which the cause of action arose.
(4) This section does not affect any right or liability that a person has under any other law.
(5) For the purposes of this section, a person is involved in a contravention if, and only if, the person has:
(a) aided, abetted, counselled or procured the contravention; or
(b) has induced, whether by threats or promises or otherwise, the contravention; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
88U Injunctions for contravention of this Act
Application for injunctions
(1) If a person has engaged, engages or proposes to engage in conduct consisting of an act or omission that constitutes an offence or other contravention of Part VAA of this Act, either of the following persons may apply to a court of competent jurisdiction for an injunction under subsection (2) or (3):
(a) an interested person;
(b) a person acting on behalf of an interested person.
Prohibitory injunctions
(2) If a person has engaged, is engaging or is proposing to engage in conduct constituting an offence or other contravention of Part VAA of this Act, the court may grant an injunction restraining the person from engaging in the conduct. The court may grant the injunction:
(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that kind.
Mandatory injunctions
(3) If:
(a) a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail to do an act; and
(b) the refusal or failure did, does or would constitute an offence or other contravention of Part VAA of this Act;
the court may grant an injunction requiring the person to do the act. The court may grant the injunction:
(c) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do the act; and
(d) whether or not the person has previously refused or failed to do the act.
Interim injunctions
(4) Before deciding an application for an injunction under this section, the court may grant an interim injunction:
(a) restraining a person from engaging in conduct; or
(b) requiring a person to do an act.
Discharging or varying injunctions
(5) On application, the court may discharge or vary an injunction.
No undertakings as to damages if applicant is prescribed person
(6) A person cannot be required, as a condition of granting an interim injunction, to give an undertaking as to damages.
Powers conferred are in addition to other powers of the court
(7) The powers conferred on a court by this section are in addition to (and do not limit) any other powers of the court.
88V Court may make other orders
(1) A court of competent jurisdiction may make any other order (including a declaratory order) it thinks fit if a person or entity contravenes Part VAA of this Act.
(2) The court may make an order under this section only on application by:
(a) an interested person; or
(b) a person acting on behalf of an interested person.
(3) An order under this section may be enforced as if it were a judgment of the Court.
(4) Without limiting the generality of subsection (1), where, in a proceeding instituted under this Part, the Court finds that a person who is a party to the proceeding has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in contravention of a provision of Part VAA, the Court may, whether or not it grants an injunction under section 88U or makes an order under section 88T, make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in subsection (5) of this section) if the Court considers that the order or orders concerned will compensate the first‑mentioned person in whole or in part for the loss or damage or will prevent or reduce the loss or damage.
(5) The orders referred to in subsection (4) are:
(a) an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the Court thinks fit, to have been void ab initio or at all times on and after such date before the date on which the order is made as is specified in the order;
(b) an order varying such a contract or arrangement in such manner as is specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date before the date on which the order is made as is so specified;
(c) an order refusing to enforce any or all of the provisions of such a contract;
(d) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to refund money or return property to the person who suffered the loss or damage;
(e) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage;
(f) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his or her own expense, to repair, or provide parts for, goods that had been supplied by the person who engaged in the conduct to the person who suffered, or is likely to suffer, the loss or damage; and
(g) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his or her own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage.
Note: Section 88V is based on section 87 of the Competition and Consumer Act 2010.
88VA Contravention of Part VAA
For the avoidance of doubt, conduct which is unlawful under Part VAA constitutes a contravention of Part VAA.
Subdivision B—Jurisdiction of courts
88W Federal Court and Federal Circuit Court have jurisdiction
For the purposes of this Division the Federal Court of Australia and the Federal Circuit Court have jurisdiction to hear and determine matters arising under Part VAA.
[protecting freedoms etc.]
(9) Schedule 1, page 16 (after line 8), after Part 1, insert:
Part 1A—Amendment of the Australian Human Rights Commission Act 1986
Australian Human Rights Commission Act 1986
62A Subsection 3(1) (after paragraph (a) of the definition of unlawful discrimination )
Insert:
(ab) Part VAA of the Marriage Act 1961; or
62B Subsection 3(1) (after paragraph (d) of the definition of unlawful discrimination )
Insert:
(da) Division 2 of Part VAA of the Marriage Act 1961.
(10) Schedule 1, item 70, page 20 (after line 13), after subitem (2), insert:
(2A) Part VAA of the amended Act applies according to its terms from its commencement.
The amendments in my name and Senator Fawcett's that I have moved I will loosely and colloquially group together under the title 'freedom amendments'. That is because, in aggregate, their main intent is protect the freedoms of Australians while legislating for same-sex marriage. There are a number of provisions in these amendments, not all of which I will seek to speak to, but I will seek to speak to the major ones in it. I'm going to single out three in particular that I think are worthy of the Senate's attention and support. The first is on freedom of speech, the second is on antidetriment and the third is on parental rights.
The amendment to protect free speech is listed under 88J. This is, in my view, perhaps the most important amendment to this bill that the chamber will consider today. The reason why I believe it's so important is that freedom of speech is the most fundamental freedom we as Australians and free citizens of a free country like Australia possess. Without free speech we have no ability to fight for, to argue for or to seek to protect our other rights. Every other right we hold depends in part on our ability to speak freely about why we as individuals deserve them.
Freedom of speech can be and has been affected by the same-sex marriage debate in a couple of ways. Firstly, it's been a very important part of the successful campaign to lead to a change in the law to allow same-sex couples to marry. If it weren't for the freedom to speak then campaigners who for many years sought to change the law in this country to allow same-sex couples to marry would have had no means to argue in favour of it. I think it's a perfect demonstration of the value and the virtues of free speech. People in Australia who held an opinion that was once a minority opinion, an unpopular opinion, were able to make arguments in favour of their view to persuade their fellow Australians to agree. Ultimately, that was confirmed as well as it could ever be confirmed in the postal marriage survey, with a strong majority vote to change the law to allow same-sex marriage to become legal in Australia. I want that freedom of speech to be preserved for those people and I want it to be preserved for anyone who has a different view, in particular anyone who chooses to believe that the traditional definition of marriage is the definition that is relevant to them. These amendments ensure that that will be the case. If these amendments are not successful, it will not be clear that Australians have the freedom to speak about their views on marriage. Only in passing these amendments will we ensure that that's the case.
One of the important things about these free speech amendments is that they quite deliberately set aside state antidiscrimination law which restricts freedom of speech. I am going to talk in particular about one state's law in this area, because it is particularly egregious and has already been used to the detriment of free debate on this issue, and that is Tasmania's antidiscrimination law. In many ways it's modelled on the federal legislation, on section 18C, which prevents conduct that offends, insults, humiliates or intimidates someone on the basis of their race, but it goes further. It incorporates as protected attributes not just race, as the federal act does, but many attributes, including gender and sexual preference. What that means is that speech which offends someone on the basis of their gender or sexuality is unlawful in the state of Tasmania.
There has already been one case in this area that has been taken to the Anti-Discrimination Commissioner, and that was the case against Catholic Archbishop Julian Porteous. Archbishop Porteous circulated to his parishioners a document which stated the Catholic Church's view on marriage. It didn't reflect my views as someone who voted yes in the survey and believes in same-sex marriage, but I think I can say quite fairly that it was a mild-mannered expression of the Catholic Church's view on marriage. It was a modestly and carefully expressed view as to why the Catholic Church believes what it believes. Someone took offence to the existence of this document and its circulation to Catholic parishioners and made a complaint, under this Tasmanian law, about the booklet. That complaint was accepted by the Office of the Anti-Discrimination Commissioner, and it entered into the first phase, which is the investigation and conciliation phase of the antidiscrimination law in Tasmania. After the case had been in that stage for many months and after the Catholic Church in particular had accrued tens of thousands of dollars in legal fees in preparing to defend itself, the complaint was withdrawn.
Some people have taken comfort from the fact that the complaint was withdrawn, and in a sense it is a good thing it didn't proceed to court, because having it proceed to court would have been a troubling thing for free speech. But I don't share that comfort, because the withdrawal of the complaint means that in the state of Tasmania it's now legally uncertain as to whether or not it is legal to distribute a booklet such as Archbishop Porteous's. The commission never ruled on it. It was never taken to court, and the court never ruled on it. Right now, today, the best we can say is that in Tasmania it is legally unclear as to whether you can speak freely about your views on marriage.
There are, right now, two further cases before the Anti-Discrimination Commissioner for the same or similar reasons. They are against a Presbyterian preacher, Campbell Markham, and David Gee, who is known as a street preacher, who made similar comments about same-sex marriage and homosexuality. I stress again that the comments they made do not reflect my views, but I believe that in a free society those men should be able to share their views. A complaint made against them is before the Anti-Discrimination Commissioner. Again we don't know where that case will land, but it is possible that the Anti-Discrimination Commissioner and subsequently courts will find that their speech was not lawful.
I think it's urgent that we clarify this issue. If two complaints against three people have been made while the law of the land is that marriage is between a man and a woman, imagine how many more cases will flow after the law is changed at a federal level to allow same-sex couples to marry. There will be people who will take the view, once the law federally is that same-sex couples can marry, that people continuing to argue for a traditional definition of marriage are in some way flouting the law and should be taken to a commission or the courts for the matter to be resolved. I do not want to see that happen.
This amendment protects the free speech of those people to share their views about marriage and it sets aside any state laws which restrict their ability to speak freely on this issue. Importantly, it doesn't do so in an unlimited way. It only does so relevant to their marriage beliefs and associated beliefs about marriage. It does not do it on any issue under the sun, just about marriage, because that is what this bill is about. It also doesn't do so in an unlimited way in terms of what can be said. If the conduct is threatening or harassing, there will be no protection from state laws. State laws will continue to apply as they have applied previously. So this is not a get-out-of-jail-free card. This is not carte blanch: you cannot say anything you like; you must say it within reasonable bounds. That is the free speech amendment, which I think is particularly important.
I want to briefly talk about the other two aspects of the bill that I think are worth particularly highlighting. The second is the antidetriment provision. It's number 88K in the amendment. What this amendment seeks to do is ensure that people who continue to hold a traditional view of marriage, after the law changes, cannot have any detrimental action taken against them. It particularly seeks to do so with public authorities and agents of public authorities, because, I think we all agree, whatever we decide to do with our own time and money is one issue, but taxpayer funded organisations and bodies empowered by the state have a special obligation to treat all Australians equally and not to treat them adversely. Effectively, what this antidetriment provision does is replicate what already exists at the state and federal level in most states in terms of protections for people based on their sexuality or their gender. It is already unlawful to mistreat someone based on sexuality or gender, as it should be, but it is not unlawful to mistreat someone based on their traditional belief in marriage, and I think it should be. I think they deserve equal protection. That's effectively what this amendment seeks to do.
One of the practical issues this amendment seeks to deal with is the case of a body which is empowered by the state to license an occupation to allow people to practise their profession. This is not a theoretical provision; it is a very real provision meeting a very real need. We saw during the postal survey a petition posted on a website managed by GetUp! which sought to revoke the registration of a doctor, Dr Pansy Lai, who had appeared in a Coalition for Marriage advertisement explaining her view that marriage should remain in the traditional sense between a man and woman. This petition said that she should not be allowed to practise her profession as a doctor simply because of the political views she held on a political issue—not because she was unfit to be a medical doctor in any other sense. Presumably, whoever started the petition had no way of knowing that. All the petitioner knew was that this doctor believed in a traditional version of marriage, and he thought that was sufficient grounds for her doctor's licence to be revoked. The petition attracted a number of signatures in support before GetUp! wisely removed it from the website. It shows there are some people in Australia who think it is appropriate to deny people their ability to practise their profession based on their political views. I think those people deserve protection. If any doctor is incompetent or unable to fulfil their duties, of course they should have their licence to practise as a doctor removed. But they should not have it removed solely because they have a traditional belief in marriage.
We've seen similar cases overseas. Trinity Western University in Canada is a Christian university that has traditional views about marriage and sexuality, and it requires that its students uphold those views. In some provinces in Canada, the registration of its graduates—their teachers and their lawyers—was denied by state authorities simply because they attended a university that had a traditional view of marriage and morality. It is an extraordinary thing that graduates from a university could be denied the opportunity to practise their profession based on the views of a university they attended, not even their own views—though I also think their own views, in a non-relevant way, should not be considered. So, this antidetriment provision is dealing with a very real issue. It deals with other issues, but, given the time, I won't go into more detail. I suspect other senators will make contributions about that.
Finally, I want to single out one further significant part of this amendment, which is under section 88R: parental rights. Parents in Australia already, very clearly, have the right to remove their child from a class where that teaching is about religion or religious instruction. It is a right that many parents take up. I remember when I was in primary school and religious instruction teachers came to teach us about the Bible and Christianity it was an option for my parents and other parents to ask for their child to be removed from the class. Some children and parents chose to do so. I understand that today, at least in my home state of Victoria in public schools, a very high proportion of students take up that option and don't attend the classes—as they should. In a public school, in particular, a student who does not have religious faith or is not interested in learning about it should have the option to not attend a religious instruction or a religious education class. What is not clear is whether parents who have a traditional view of marriage and a traditional view of morality and sexual ethics, for example, have the equivalent right to remove their child from a class if the teaching is inconsistent with their values.
Again, this not a theoretical amendment meeting some kind of theoretical need; it is a practical amendment meeting a practical need—because at least in my home state of Victoria, and to varying degrees in Australia, there are programs like the Safe Schools program which teach very radical ideas about gender and sexuality and, no doubt, marriage—and perhaps even more in due course—in a way that many parents do not accept for religious reasons or purely secular reasons. I think those parents and students should have a right to decline to participate in those classes. They should have the right to step out of that class.
It's already been suggested in this debate that this may lead to, for example, a Christian parent withdrawing their child from a science class because it teaches creationism. As ridiculous as that suggestion is, this is carefully drafted to ensure that that would not be an option and that could not be taken up. The only instance where a parent could remove their child from a class, beyond the rights that they already have, is when that teaching is inconsistent with their views about marriage. So, if a parent or a family holds a traditional view of marriage, they should be able to remove their child from a class where that teaching is being taught. So it's a narrow focused amendment for a narrow focused reason; it is not a carte blanch. It is a not a right to remove your child under all circumstances.
That is not an exhaustive list of all the provisions of these amendments, but they are the three that I think are the most significant—freedom of speech, anti-detriment and parental rights. I suspect other senators will highlight different parts, and I of course will be happy to engage in the committee discussion as we go forward on any other parts of the amendments.
Senator HANSON-YOUNG (South Australia) (17:17): It will be no surprise to Senator Paterson that the Greens will not be supporting any of his amendments in this tranche. In my role as education spokesperson for the Greens, I want to take issue with the element in relation to education. I find it extraordinary that you want to use this debate and this bill to wedge in provisions around what classes children attend. The Australian public have made their view extremely clear. They were asked if they wanted to allow couples, regardless of gender, the right to marry, and, overwhelmingly, Australians responded with a loud yes. That has absolutely nothing to do with the grasping-of-straws attempt that, with all due respect, Senator Paterson, you and others are trying to waste time in this chamber with today in bringing up other issues which just simply do not fit here.
You've said that this is a very narrow amendment and that it only relates to marriage. Well, hang on a minute; if you care about freedom of speech and if you care about parental rights, why wouldn't we have provisions that allow parents who are flat-earthers to say that their kids shouldn't go to geography classes or that allow people who don't believe in climate change to say that their kids shouldn't go to science classes? It is extraordinary that you want to start a trend where the education of children gets drawn into this political debate, an ideological debate, that you have lost and those who oppose marriage equality have lost. This has absolutely nothing to do with the bill before us, and we will be voting down these amendments.
I think parents right across the country are wondering why on earth Senator Paterson wants to bring in such ridiculous, draconian amendments into this process. You talk about freedom of speech and you talk about freedom of citizens, and these prescriptive amendments really do risk legislating cumbersome nanny state laws. That is what you're talking about here. On the next lot of issues that you don't agree with, are we going to have an amendment bill that starts saying children can't be taught the science of climate change or children shouldn't be taught about issues of respectful relationships—for example, encouraging young women and girls to make sure they don't put up with domestic violence in their relationships or with sexual assault? Where do you draw the line? This is purely ideological desperation, and these amendments should be rejected from the chamber.
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (17:20): I'm glad Senator Hanson-Young asked where we draw the line, because the line is actually drawn in article 18.4 of the International Covenant on Civil and Political Rights because it specifically refers to the obligation of states parties—Australia in this case—to ensure that parents can oversee the education of their children in accordance with their own moral convictions. Their moral convictions have nothing to do with climate change, the shape of the earth or any of the other issues that Senator Hanson-Young raised. They do, however, go to the fundamental beliefs that people have around marriage and the fact that marriage is between a man and a woman and the associated issues that go to their rights as parents.
So I will be supporting these four amendments that Senator Paterson has brought up. The freedom of expression is important. It's important to realise—and I said this in my speech on the second reading—that we're talking here about a view of marriage that has been around for millennia. In fact, when the Supreme Court in the US made their decision, they recognised:
Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.
The concern that is being raised, and was raised during the Senate select committee process by many of the witnesses, is that we have already seen actions by advocates here—Senator Paterson mentioned Archbishop Porteous in Tasmania and the two pastors there—and we've seen many cases overseas where action has been taken against people not because they've been discriminating but because they have expressed their view. In some of the cases, the action that has been taken against them is on the basis that in the future they might offend someone through expressing their view. So it's not even to do with discrimination; it's that in some future act they may offend someone, and therefore action is taken against them. I think that, if Australia is to be a plural country where people can have different views that are respected and legal, we can't make a change in the law which is going to enable the kinds of actions that we've seen with Archbishop Porteous and others to be more widespread in the nation.
The examples of detriment that we've seen overseas include things like graduates of a university in Canada who were refused registration. In the UK, an employee of a housing trust mentioned that he didn't think the state should impose its rules on places of faith and conscience in respect to marriage and, as a result, the housing trust sought to sack him. Because he'd been there for a while, they weren't actually allowed to sack him in the end, but they demoted him and reduced his pay. A Mr Ngole, a UK masters student, was expelled from his university because he took part in a Facebook conversation that was completely unrelated to the university or his course and expressed his view around traditional marriage. It was reported back to someone in the university. They then took the view that his view might offend someone in the future, and so they kicked him off his course at university. To the horror of people who supported him, who then took that to the High Court in an appeal, the High Court upheld that decision. So here we have a country based on common law, like Australia, which has allowed someone to be kicked off a course purely for holding a view that marriage should be between a man and a woman and because in the future he may offend someone by holding that view. I think any reasonable person in the street would say that that is an unacceptable abuse of state power, given that, as the US Supreme Court said, people of good faith around the world have for many, many years held that view and many—in fact in Australia, nearly 40 per cent—continue to hold that view.
The amendment also goes to keeping people free from being required to endorse views that they don't actually support. We've seen that occur overseas, but also here in Australia. In the UK, for example, the National Trust, a body you would think is a good conservative place, in actual fact decided all their employees needed to wear a badge for marriage equality. For those who decided that they didn't want to wear that badge because they didn't support that view, they were required to work at the back of facilities out of public view and they weren't allowed to come back to public-facing roles until they had reformed or changed their thinking on such issues. That is reverse discrimination. We've heard here people saying we don't want to see anything that will create new discrimination, and yet that's what we've seen in the UK.
Here in Australia, we've also seen similar things. In the Northern Territory, a teacher who expressed his view and his support for traditional marriage was issued a show cause notice by the education department. In Melbourne, a Commonwealth public servant was given a formal warning because he complained about being pressured by the department to participate in a gay pride march. People are free to march, but people should also be free to say, 'I don't wish to march because I don't support the view.' So the very freedoms that have allowed people who are pushing for this change—to speak, to march, to associate, to advocate for the change—are now being denied to people who wish to support the traditional view of marriage.
One last case, where we see this attitude starting to take place, was an IT manager in Melbourne. This is evidence that was brought before the Senate select committee. An IT manager was working, coincidently, on the software that supported the Safe Schools program, and he did his job diligently and well. He was a manager in the company. But when it came to expressing his personal view, he indicated that he wouldn't want his children involved in the program. For that, he was accused of creating an unsafe work environment and was sacked by the company. That has been taken up by lawyers and is being contested, but it gives you an example of the kind of totalitarian approach which is taken when people dare to hold a view that doesn't align with that which is, to use the 'coin', politically correct, or the view that is supported, importantly, by the state and territory discrimination law.
To give you an example of how this connection between a change in federal law intersects with state and territory law, I look at the procedure document issued to South Australian schools in November of 2016. This is a document which says at the top:
Please note this procedure is mandatory and staff are required to adhere to the content.
It refers back to the changes that occurred in the Commonwealth Sex Discrimination Act where gender identity and intersex status was included in that act. It then goes through to talk about the policies in schools and what principals do and don't need to do—and they talk about things like getting rid of heteronormative language, et cetera—but the part that is concerning is you have this dynamic of linking to a change in federal legislation. In the paragraphs of the instruction, it then points to the state anti-discrimination law and says, 'If you don't do these things, you are at risk of breaching this law … suggest you go and consult the legal department'—not once, but multiple times in the document. It's clear that they take a change in federal law and then use the state antidiscrimination law as a weapon to enforce the compliance of people, even if they don't agree. This particular instruction is concerning because one of the things it requires principals to do—in this case, it's to do with gender fluidity—is, if a child decides that he or she would like to transition their gender, then the principal is to ask the parent. But what this mandatory instruction of the state government says is, if the parent objects, the principal is to decide what's in the best interests of the child and to ignore the parent's wishes. It's an example of how a change in federal legislation, using the threat of state antidiscrimination law, will override the wishes of parents, who, under article 18.4 of the International Covenant on Civil and Political Rights, are guaranteed by human rights law the ability to oversee the education of their children in accordance with their own moral values.
The provision here for parental rights is actually an important provision. I know Senator Hanson-Young said the question wasn't about that. The question received 61.6 per cent support for change, and that's why we're respecting it and not seeking to filibuster—we're going to move this change through. But 62 per cent of Australians, regardless of how they voted, also said they thought protections were important. Probably the highest ranked amongst those were protections for parents to be able to oversee the education that their children are exposed to.
There is precedent for a head of power to use this. The amendment draws on the external affairs power, because we are a signatory to the ICCPR. If you go back in Australian legal history to when Tasmania was the last remaining state criminalising homosexual behaviour, the Commonwealth used the external affairs power to override state legislation so that homosexuality was legal throughout Australia, in accordance with our obligations under the ICCPR. So there is a very direct and relevant precedent in Australian law for us to use a Commonwealth provision, to the extent necessary, to override state and territory law—in this case, to implement article 18.4 to ensure the rights of parents that are guaranteed under international law.
So those three areas—freedom of expression, freedom from being required to endorse a position that you don't agree with, and parents' right to oversee the education of their children—and the antidetriment provisions protect people with a genuine belief. It's defined in the legislation, so it's not broad—it can't go to flat-earth things. It is around the belief that marriage is between a man and a woman and it doesn't allow any new discrimination. They protect. They're a shield that protect somebody from expressing a view that is legal today—certainly legal under any Commonwealth law after this bill is passed—but could offend state and territory antidiscrimination laws, as we have seen in Tasmania. So this amendment is intended not to allow discrimination but to act as a shield for people so they are able to have that genuine belief about the nature of family. This is the kind of thing that was envisaged in the Senate select committee report, where all of the senators agreed that there were issues that needed to be carefully considered and debated if we were to reach a sensible balance that allowed Australia to remain a place where a diversity of views is both valued and legal. I commend these amendments to the Senate.
Senator DASTYARI (New South Wales—Deputy Opposition Whip in the Senate) (17:33): I'm going to be very, very brief. I think it's no secret that I'm not a supporter of these amendments being moved by Senator Paterson and Senator Fawcett. But I do want to put on the record that I believe they are amendments that were put in good spirit and good faith, and I think some of the post-plebiscite commentary around some of these amendments has been quite unjust and quite unfair. I think it's very reasonable for us to be able to have these kinds of debates about where you draw the line on religious protection, and that good people are able to disagree on these matters.
Senator Seselja interjecting—
Senator ABETZ (Tasmania) (17:34): Yes, that was clearly a speech designed for the ears of Western Sydney that have a narrow cast. I think it would be helpful for us to reflect on a few facts in this debate. And the simple fact is: the right of parents to guide the moral education of their children is an established right under international law. Nobody disputes that. Same with freedom of speech. Same with conscientious objection. These are fundamental human rights enshrined in international documents. What we are embarking upon with this legislation, potentially, is to compromise those fundamental rights in favour of something which has been shown time and again not to be a fundamental human right, namely, same-sex marriage. The international law on that is exceptionally clear. Does that stop a country from legislating for same-sex marriage? Of course not. It is not one of those fundamental international human rights. So what we have here is the Australian legislature seeking to establish a new right and, in so doing, compromising those very basic fundamental human rights that, thank goodness, we were all able to grow up with.
It is bizarre in the extreme that those who have celebrated the outcome of the postal survey did so on the basis of the embrace of—dare I say the word—diversity. But now that they've got a win in a postal survey—and I'll get to that later—they want to drop the blade on the D10 and just bulldoze forward without any concern about diversity. All of a sudden, diversity is no longer to be celebrated. There might be mums and dads concerned about the moral education of their children. Out the window! In my home state of Tasmania, Archbishop Porteous was taken, as it happens, to an antidiscrimination tribunal by an endorsed Greens' candidate who only withdrew it when she realised the consequences electorally, and they then ran for cover. But the simple fact is: surely, an archbishop—Julian Porteous—is entitled to circulate to the Catholic school community in Tasmania a well-considered document on the Catholic church's teachings on marriage. It wasn't a frolic of his own. It was a considered document signed off by all the Catholic bishops in Australia—it was from the Australian Catholic Bishops Conference—and given to students at Catholic schools to take home to their parents. This was considered by this Greens candidate as a huge affront to human rights.
Now, I take Senator Hanson-Young's point about the postal survey and what people voted for. Let's be very clear: they voted for the question, 'Should the law be changed to allow same-sex couples to marry?' Nothing more, nothing less—same-sex couples.
Senator Hanson-Young: Why all these desperate amendments?
Senator ABETZ: So, to try to read into this that, somehow by voting for same-sex marriage, the Australian people also overwhelmingly voted to denigrate parental rights, to denigrate the right to freedom of speech and to denigrate the right to freedom of conscientious objection is, to employ the words of the honourable senator, somewhat desperate. That is clearly not what the Australian people voted for.
What is more, as Senator Fawcett pointed out to us, in the same polls that predicted the outcome of about 61.4 per cent of Australians voting in favour of same-sex marriage, with even a bigger margin they indicated their support for these fundamental freedoms. That is what should be motivating us and exercising our minds in this chamber this evening. What is it that we want in Australia? Do we want diversity? It seems no longer so. Diversity was a great catchcry until you were able to convince a certain group of Australians that they should vote for this diversity, but, now that this diversity has been voted for, anybody with a contrary opinion should be shut down, closed down, no longer allowed to speak. And your seeking to tell us that we are voting for a nanny state is really as much of a case of pot-kettle-black as I have ever witnessed in this chamber. The simple fact is—
Senator Hanson-Young interjecting—
Senator ABETZ: Despite great temptation, Senator Hanson-Young, I didn't interject during your speech. I would encourage you to extend the same sort of courtesy to those of us on this side. It seems, according to Senator Hanson-Young, that it's an extraordinary wedge.
Senator Hanson-Young: I didn't say that.
Senator ABETZ: Check the Hansard. Yet again the Australian people will be able to say that often the honourable senator speaks and does not know what she is saying. I think that has now been confirmed. I took notes, Senator. I took notes of what you said. But, if you deny that you said it, I won't have to contradict what you said. I won't have to contradict what the honourable senator said.
But we have literally case after case. There is the academic Dr Stephen Chavura, in New South Wales, who has been confronted because of his views in relation to the issue of marriage. If we celebrate diversity, if we allow people to hold alternative opinions—just as for, what, a decade certain people continually said that the definition of 'marriage' ought to be changed to include same-sex couples; were they ever denied the right to be able to say that? No. They should be allowed to say it. In a free, democratic society, these issues will ultimately be determined by debate—robust ideas being sharpened off each other—and then the view of the people will be made known.
Similarly, shouldn't people who still hold to the view of marriage as being between a man and a woman today be afforded the same freedoms as those who advocated for a change in the law? Shouldn't people—as of tomorrow or whenever this legislation might get passed—have the right to argue that the law ought to be changed back? We might disagree with that view, we might agree with that view, but that is a fundamental freedom that we should have in our society, that we should celebrate in our society. If the view is, 'We've changed the law; therefore you are now no longer able to hold that point of view or advocate that point of view,' we are, sadly, moving into an era of Australian politics that I must say is not the sort of Australia that I would like to see.
I would like to see an Australia where we do have the capacity to have that diversity of views. People voted to change the law to allow same-sex couples to marry. That has already been extended and taken a liberty with by Senator Smith's bill, which takes it a lot further than what the actual question was on the postal survey form. Then to say that somehow that vote is indicative of the will of the Australian people to deny these fundamental freedoms is just so very, very sad. There is the case of the students at Trinity College that Senator Paterson referred to. They are being denied the right to practise their career as lawyers, not because their degree was deficient, not because their advocacy skills were wanting—no, nothing to do with that. It is on the one ideological ground that they were part of an institution where they were of the view, if I recall correctly, that sexual activity should not be engaged in until after marriage. That's a vow they signed up to. And, in a diverse society, shouldn't that be allowed? Why should somebody of that view be denied the capacity to represent the men and women of Canada in the courts of law? It's like a foster family in the United Kingdom—a wonderful Christian family, according to all of the reports, who had fostered many, many children, with great outcomes. Everybody said: 'How great is this? What a wonderful, loving family unit, doing this for children that need foster care.' All of a sudden, because of the change of law in relation to marriage, the couple were denied any more foster children because they mightn't teach them about the homosexual lifestyle or gender fluidity. Children in desperate need of a loving mum and dad in a foster family are denied that capacity for that one sole reason.
Let's make no mistake: when people were advocating for the 'yes' vote and claiming there would be no consequences, they knew what was happening around the rest of the world. Those of us that argued the consequences knew what we were saying. We want to protect Australia from some of those travesties—to protect the law students in Canada, for example, and to protect the foster carer family in the United Kingdom. The list around the world, sadly, is very, very large. Another example are the, I think, 19 Catholic adoption agencies in the United Kingdom that have had their charitable status changed or denied for one simple reason: they believe that children are best placed with a mum and a dad.
Whilst I accept that same-sex marriage will become part of the law of this country by the end of these two weeks of sitting, I am still very fundamentally of the view that, all things being equal, children are best brought up knowing the biological certainty of their parents and having the diversity of a male and female role model. Why else do people argue that we should have more women in parliament or on the Supreme Court benches? If all of a sudden women were no different from men, why EMILY'S List for the Australian Labor Party? There is a fundamental difference. In fact, the scientists tell us there are, I think, a thousand or more chromosomal differences between men and women. It's a biological fact that there are differences. The reason that people argue we need more women in parliament is that women are different and make a different contribution. They provide, dare I say the word again, 'diversity' for parliament, for the boards of companies and for the Supreme Courts. But, for the most important role in society, the socialisation of the next generation, that diversity is, all of a sudden, no longer required. I say that I believe, if at all possible, it is desirable, and that is why people that want to express those views should be protected. For the sake of the children and the next generation, I fully support the amendments.
Senator JACINTA COLLINS (Victoria) (17:48): I won't be supporting this set of amendments on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, but I do want to take this opportunity to deal with a number of definitional matters that have been raised that are in this general area. Hopefully the Senate will allow me that opportunity. The first of those is in respect to non-denominational religious groups and whether the bill as it's currently struck provides adequately for those religious groups. The current bill exempts ministers of religion and religious marriage celebrants from being required to solemnise same-sex marriages.
A religious marriage celebrant must be a minister of religion, and 'minister of religion' is defined widely in the Marriage Act already in a broad sense where it indicates that:
minister of religion means:
(a) a person recognised by a religious body or a religious organisation as having authority to solemnise marriages in accordance with the rites or customs of the body or organisation; or
(b) in relation to a religious body or a religious organisation in respect of which paragraph (a) is not applicable, a person nominated by:
(i) the head, or the governing authority, in a State or Territory, of that body or organisation; or
(ii) such other person or authority acting on behalf of that body or organisation as is prescribed;
to be an authorised celebrant for the purposes of this Act.
My advice is that this encompasses non-denominational religion groups. The problems and concerns that have been raised should be addressed by the current broad definition in the Marriage Act. If that's not adequately the case, I would hope that this can be something that we can see further resolved in the Ruddock review. But my understanding is that the broad definition within the existing Marriage Act should manage that problem.
The second problem that's been raised with me is in respect of religious facilities. This is the concern that chapels or churches in less traditional environments might suffer from not being adequately provided for in this bill. The current bill exempts bodies established for religious purposes from being required to provide facilities for the purpose of a marriage. My advice is that schools or other bodies can be organisations established for religious purposes, if that purpose is in their constitution. Where it is not clear the extent to which this is the case, organisations could include such purpose in their constitution if they so choose.
This interpretation or advice is not consistent with some suggestions about the Queensland Anti-Discrimination Commission tribunal decision in relation to St Vincent de Paul. The St Vincent de Paul case, I think, is particularly pertinent to our discussions now because, whilst I and Senator Abetz have concerns about some of what has occurred in overseas jurisdictions, this is perhaps one of the very few matters that have come to a decision that may relate to issues that we need to resolve between the Commonwealth and the state tandem antidiscrimination frameworks. It is a very complex area. It is probably an area that's going to test the minds of those in the Ruddock review process. But, as I have said, in relation to religious facilities my understanding is that the federal provisions provide broader scope for organisations to be regarded as organisations established for religious purposes. Indeed, I would be quite concerned if at the federal level such a narrow definition were ever adopted. I don't believe that there are the examples in the Australian jurisdiction that demonstrate that such a narrow definition has or could be adopted. As I said, my advice in relation to religious facilities is that a broad definition should allow the exemptions that are in this bill to ensure that, for example, a chapel in a school does not end up becoming the victim of, let's say, activism to make a point in relation to same-sex marriage.
We canvassed this issue in the second reading discussion. I think that there's quite a significant level of support for ensuring that the extremes of this debate don't continue and that we continue in a philosophy of that Australian ethos I mentioned, which is 'live and let live'. It's one of the things I am proud about being an Australian, that we do have that heritage, that we haven't gone down the same path as the United Kingdom or Canada or the US. Indeed, even, say, the Canadian cases, where they do have a bill of rights and protection for religious freedom, haven't actually delivered the protection needed in some of the cases that other senators have been citing. This is why the process that the Ruddock review will undertake is going to be quite fraught, because we don't necessarily want to follow overseas jurisdictions to get the outcome that we want to be able to apply here.
I think most of us value the community work and dedication that has been provided by organisations such as St Vincent de Paul and organisations that have been delivering education for decades—sorry, hundreds of years—in Australia. It is critical that they be able to continue to operate under the tenets of their faith.
I said in my second-reading contribution—not reported quite accurately, I see, in The Sydney Morning Herald—
Senator Abetz: What a surprise!
Senator JACINTA COLLINS: Thank you, Senator Abetz—that, in the context of the Prime Minister deciding to kick this issue down the road, we may have been able to resolve some of the issues with a bit more clarity. I think it's obvious from the earlier debate that there isn't now the numerical support for that. But I hope, very dearly, that the Ruddock review process will ensure that we don't deteriorate in Australia down to a place where an organisation like St Vincent de Paul is regarded as not being a body established for religious purposes. If there's one message I have for that review panel coming out of this discussion, I think, that would be the main one.
In relation to Archbishop Porteous, I noted Senator Paterson took less comfort than others in relation to that matter. My only reflection on that issue would be, unfortunately, that the attempt by Senator Paterson, Senator Fawcett and others to provide provisions in these amendments would equally be legally contestable. So whilst the Porteous case hasn't established any principles because it was withdrawn, I'm not so confident that even necessarily these provisions won't continue legal uncertainty, or indeed be challenged in a way which further complicates our already complex antidiscrimination framework.
I know that in the past there have been attempts to simplify our antidiscrimination framework to deal with its tandem nature and the differences between the state and the federal jurisdictions. It is a very complex and challenging area, but I hope, as a consequence of this debate and the Ruddock review, that the next time we look at a consolidation of an antidiscrimination framework, it's on the basis that we have strong general bipartisan support for religious freedom.
Senator O'SULLIVAN (Queensland) (17:58): I just want to open by reflecting on the fact that the contributions from those opposite in this space are an example of what we need to be careful of. We know that there are members of the opposition who want to support these amendments, but they're denied the ability to do that. You won't see them in the chamber speaking, because the party has pulled the veil down on them in terms of making a contribution and expressing what they truly believe—
Senator Jacinta Collins: That's not true, Barry.
Senator O'SULLIVAN: Well, the Leader of the Opposition made that very clear in an earlier debate today—
Senator Jacinta Collins: No, he didn't.
Senator O'SULLIVAN: that a conscience vote—well, it's a 'she'; I'm talking about the leader in the Senate chamber.
Senator Dastyari: Stop trying to be gender neutral.
Senator O'SULLIVAN: But—good contribution, Sammy. Of the responses to all of these amendments, the one that confounds me absolutely, both from members of the opposition who are unable to make a contribution and those who might resist these amendments, is that around the rights of parents. For goodness' sake, it's around the rights of parents. For thousands of years people have fought within societies and family structures, of whatever form they may take, for these rights for which we're seeking simple protections, which will also be afforded to same-sex couples who may have children in their family unit in education, not just to do with matters around sexuality and sex education but on so many frontiers. Parents must always have the right to choose what teachings their children will be exposed to and what exercises they engage in. If they fundamentally do not believe in teachings or modules of education that their children are to be exposed to then they must have the right to insulate their children from those. That is their choice. That is the primal right of parents who are taking care of children who haven't reached the age of majority. It's as simple as that. I don't necessarily want to be one of the people who tie Safe Schools to this debate, but there you go: Safe Schools, a most horrible module of education. I can't even repeat some of—
An honourable senator interjecting—
Senator O'SULLIVAN: I'll do what I find difficult and just ignore you. The fact of the matter is Safe Schools had some atrocious material in it. Even people in the LBGTI community resisted it. It was condemned. If this principle were to remain, parents would be able to choose to take their children out of the education system, because they do not want them to be exposed to particular teachings that are so inconsistent with their determined value base. We all have different value bases. Many elements of them are common to us all. I grew up in a Catholic household and a Catholic community and was educated at Catholic schools; I remain a tortured Catholic at 60 years of age. These are values that I have upheld, and they are a part of my life. They guide me in certain circumstances and have served me well, in my view.
If you tell me now that I can't be allowed to engineer the lives of my children or grandchildren—where I have responsibility for them, before they've reached that age where they can make their own minds up—particularly about what teachings they will be exposed to on these serious matters in educational forums, then I reject that. I've sat and tried to think of a government in my lifetime, in my life's experience in Australia, that has ever done this. They have never done this: until this point in time, parents have had the right to remove their children and protect them from particular teachings, without fear that they will be subject to actions of discrimination. I find it astonishing that amendments such as this are resisted. I love the contributions when someone is talking about freedom of speech and freedom of religion: 'We will go to the trenches supporting your freedom to practise a religion, except for these elements that aren't consistent with our argument now. We're happy for you to practise your religion, speak about your religion and express your beliefs, except in certain circumstances.'
I really urge my colleagues in this place—it's difficult because some are bound, apparently, by accepting conditions placed upon their ability to exercise their free speech and vote in accordance with their value systems—to think seriously about this issue. This is the cornerstone and the touchstone of a civilised society. We are charged with the responsibility to raise our children—in my case and in the case of many colleagues—on Christian values; Judeo-Christian values underpin our codified law. If you go back, the foundations, as we legislated in life, drew very heavily on Christian beliefs.
This set of amendments can cause no harm. If these amendments are not accommodated, the potential for harm exists. I will more than willingly go on the record to support my colleague Senator Abetz when he spoke about the result of the postal plebiscite. It was not a licence for us to ignore the concerns of the almost five million Australians who voted against the change to the Marriage Act. I said—like we all have, I suspect—in the last six or seven months, I will be happy after this fortnight if I can go all the way to Christmas without hearing the word 'marriage' again, to be honest.
I had experiences with people who indicated they were going to vote no because of their concerns around an absence of a debate around these protections. They were people who indicated that they were quite agnostic about two people of the same gender being married but they were not agnostic about the prospects that a change to the Marriage Act might create an environment that caused new forms of discrimination, as articulated by the colleagues. Suggestions that we should somehow push this off and kick it into the grass and come back next year have only been made by people who haven't been here struggling with the provisions of 18C for three years—minor amendments were required but couldn't be agreed upon in this place or in the other place. Imagine if we have to come back here and sit down and start to talk from scratch about religious freedoms and all the things that go with it? That push wasn't here before this. I think there are currently quite adequate provisions to protect from that.
I say as I close, we need to think carefully and steadily. This isn't a competition. This isn't a contest about what you get and what we don't get—about they're the yes-ies and they're the no-ies—so we should resist moderate, sensible, fair, justifiable provisions that protect people, particularly parents in the raising of their children. It is the most fundamental and primal consideration for parents who want to look after their children and we not only need but we have a serious obligation to consider them fully and carefully and so it's in that vein that I urge my colleagues to support these amendments.
Senator PRATT (Western Australia) (18:08): I rise to speak against the hefty set of amendments which seek to insert the Paterson bill into our current cross-party bill, even though the bill that was announced by Senator Paterson was, indeed, roundly rejected by senior Liberals, including the Prime Minister himself. I do note that these amendments do not include the right for businesses to deny goods or services to same-sex couples getting married, but, despite this, we need to remember that what is in these amendments will have a very significant impact on the intention of the bill before us, which is to legislate for marriage equality. Indeed, what is before us undermines the principle of marriage equality significantly and does not implement marriage equality, and I will explain why.
It extends the right to discriminate against lesbian, gay, bisexual, transgender and intersex Australians in significant ways. For example, the extension of exemptions around relevant marriage belief is extremely wide in terms of marital status, family structure, sexual relations and gender difference. However, it restrains the relevant marriage belief on those topics to be a feature only of a marriage between a man and a woman. It does not extend the same right to hold a belief about marriage to others, such as me, who believe in marriage equality and who, like more than 60 per cent of the Australian population, have voted for marriage equality. So you are entrenching the meaning of a relevant marriage belief such that the belief about marriage to be held, and which you have a right to prosecute within the community, is constrained to this doctrinal version of marriage. It is a one-sided protection of beliefs, privileging one set of beliefs above others.
For example, it allows a person who believes in abstinence before marriage to remove their child from a class that teaches sex education but does not allow a person who believes that marriage is not only the union of a man and a woman to take their child out of a class that teaches this. Now, that is not what the Australian public voted for. What is worse in this respect is that we have what is colloquially known as a 'no-detriment' clause included in these amendments—essentially, a right to do anything if it relates to a relevant marriage belief. It provides a sword for establishing a new offence of victimisation for people who hold such beliefs, but there is no counterprotection for anybody else. Indeed, essentially, these are exactly the same reasons why we have now before us—and rightly so—a religious freedoms inquiry to be undertaken. That is where we can look at the appropriate balancing of beliefs, not just on the question of marriage but on all other matters. Why should marriage be privileged in this regard as a topic of religious freedom, where someone may withdraw their child from a class on the basis of a teaching about marriage but not on the basis of being served pork within a classroom? What is before us today simply makes no logical sense. We cannot look at the issues before us unless we look at a suite of rights and protections.
We note that the amendment also extends exemptions to organisations and prevents detriment in relation to charitable status and allocation of Commonwealth funding, and widely creates a right to dramatically extend the right to discriminate in a broad set of exemptions from discrimination. I and others on this side believe that what we have before us in these amendments is fundamentally at odds with the will of the Australian people, who have voted to reduce discrimination and not to extend it.
Senator PATERSON (Victoria) (18:14): I rise very briefly to respond to some observations made by Senator Pratt and one observation made by Senator Collins. Firstly, I will address in aggregate the concerns raised by Senator Collins, which I suspect reflect the concerns of her fellow-minded Labor senators, as a no-voting Labor senator. In essence, Senator Collins was putting a great deal of faith in a future process, the Ruddock review, to provide the protections for religious freedoms and other freedoms that are not in the current law. While I'm very positive about the Ruddock review, and I think it is a very worthy initiative, I don't share Senator Collins's confidence that a future process, which is not yet even started, is something that we can rest our hat on in order to deliver the freedoms that she and I—I think—agree are necessary now. The simple fact is that the review is not due to be returned to the government until April, I believe, so in between legislating same-sex marriage and that time, there will be no protections. Even when the review is returned to the government, there is no guarantee that there will be consensus either within the government or within the parliament about how to address those issues. It is quite possible that the end outcome of the Ruddock review process will be no additional protections. That means that those Labor senators who do have concerns and who are going to vote with their party and not exercise a conscience vote that may or may not be available to them—it's not really clear—are putting a great deal of faith in an uncertain protection in the future.
Coming back to Senator Pratt's comments: they were measured and considered, as always—I appreciate that—but I think they were misinformed about this part of the amendments. Senator Pratt was concerned that they are, in some way, one-sided in that they protect people who only have a relevant marriage belief or a traditional marriage belief. The reason that is the case is that it is only people who have a traditional marriage belief who may have detrimental action taken against them, because there are only laws in existence in Australia which limit their freedoms on these issues—a concrete example is the Tasmanian antidiscrimination laws. The Tasmanian antidiscrimination laws do not prevent me going out in Hobart and saying anything I like about someone who has a traditional marriage belief. There is no restriction on that. There is a restriction in those laws about going out and saying whatever I would like or whatever anyone else would like to say about same-sex marriage, my belief in same-sex marriage or otherwise. That is currently restricted. It's one-sided in the sense that it is responding to our existing laws which are one-sided.
Senator Pratt mentioned, particularly, the example of classes. No-one has ever disputed, to my knowledge, that parents should have the right to remove their child from a religious instruction class, for example. Parents do that all the time. I'm aware of it extensively in my home state of Victoria. But it is not clear that parents have that same right to remove their child from a class that, for example, teaches the Safe Schools program and teaches values inconsistent with the values of marriage of the parents. It is one-sided in the sense that it is responding to the existing status quo, which is one-sided.
That equally applies to the antidetriment clause. Senator Pratt characterised the antidetriment clause as a sword, which I think is a very unfair and untrue characterisation of it. It is, as Senator Fawcett described it, a shield. All that it stops is detrimental action being taken against someone who has a traditional belief in marriage. What that means is that they cannot be unfairly treated based on their views or their values. It is a protection that already exists for people on the basis of their sexuality or their gender identity but which does not exist for people who have a traditional belief in marriage. It is a new provision but a necessary one, in my view.
Senator SESELJA (Australian Capital Territory—Assistant Minister for Social Services and Multicultural Affairs) (18:17): There are a couple of areas that I want to touch on before I get into some of the issues around parental rights, which I think are absolutely critical. They are one of the reasons I will be supporting this set of amendments moved by Senator Paterson, which are thoroughly in the best traditions of liberalism and conservatism, and I commend him for it.
I will make a couple of comments in relation to Senator Collins's contribution. It does appear clear that Labor is voting as a bloc, so it doesn't appear that there is a conscience vote. I think that is clear. Senator Collins was objecting before to Senator O'Sullivan's characterisation of that, and it's not clear how that came about. I know that Mark Dreyfus stated today that there is a Labor position on the amendments, so I think that is clear. What's gone on internally in the Labor Party is up to them, but I would just make this point: we now have a situation, as we discuss these amendments, where certainly on the Liberal-National side there is a conscience vote, but Labor has bound their senators on this. So we don't have a genuine conscience vote as we debate these substantive amendments that were moved by Senator Paterson and others. I think it is well worth reflecting on that. Whether or not that's because, as Senator Wong said, senators who felt differently from the party line didn't want a conscience vote or because it's been imposed on them is for those senators to say, but I think that is a disappointing aspect of this, because certainly the Labor Party has been arguing for a conscience vote for a long time on this issue. They've in fact had a mixed message where they have argued for a conscience vote but were going to bind their people after the next election regardless. Now it seems there isn't a genuine conscience vote as we discuss these things.
I say to those Labor senators who expressed a view raising some concerns about religious freedom and about some of these fundamental things we are debating that the point that Senator Paterson made is a very good one. The review is important. It will look at a lot of these things, but they have an opportunity now to stand up for these things as they relate to beliefs about marriage. These are not hypotheticals. We have seen enough examples in Australia now and certainly overseas, where the law has been changed, of people being discriminated against because of their views of marriage. That is indisputable.
I'm sure that some of our colleagues in the Greens and the like would be very comfortable with that discrimination. In fact, I think that case in Tasmania against Archbishop Porteous was brought by a Greens candidate, if I'm not mistaken. So the Greens' world view is that archbishops who express the view of their faith on marriage should be hauled before a tribunal. I take a very different view. I think most Australians would take a different view. We have an opportunity to vote today in support of that freedom of speech. We have an opportunity today to address that situation with Archbishop Porteous—which, of course, did happen before marriage laws changed, but let's just play that to the end. We've got a situation where an archbishop was expressing the views of his faith about marriage in what I think most Australians would argue was a very respectful way. That also happened to be and happens still today to be the law of the land in this country. So Archbishop Porteous, whilst he was dragged before that tribunal, had backing not just because he was expressing his religious view but because he was expressing the view of what is reflected in the law of the land. That won't be the case in a week or so from now, and what we have seen from left-wing activists is that they will use antidiscrimination laws to try to shut people like Archbishop Porteous up. They will absolutely do that. They've already demonstrated that they will, and they will be emboldened by it.
Most people who voted yes don't want to see those kinds of actions. Most 'yes' voters would be very happy for same-sex couples to be able to marry and for individuals to be able to express their freedom of speech in relation to their view of marriage. That's, I think, where most Australians would probably sit, but, with the way that our antidiscrimination laws are in our states at the moment, things often don't work out that way. And so supporting amendments that really support free speech and support the ability of the people to express their views and not have adverse action taken against them is, I think, thoroughly liberal and thoroughly important when it comes to freedoms in this country.
We've heard of some of the overseas examples, and I won't go over all of them, but I will point to one of them: the issue at Trinity law school in Canada. I don't think anyone would want to see us get to a situation in this country where, because someone goes to a faith based school, faith based law school or school for another profession which has a traditional and conservative view of marriage, they would somehow not be able to practise in their profession. I think that would be an outrageous restraint on freedom of religion. And we don't want to get to that point.
Again, I made the point earlier that we have this opportunity now, as we debate this bill, to make a decision. We've dealt with one part through the plebiscite, and that is: should same-sex couples be able to marry? The Australian people have said yes, so that's going to happen. Then the question is: Do we want to see some of the negative flow-on impacts that we've seen in other countries and the restrictions on freedoms and the pitting of one part of our community against another? Or do we want to take some sensible steps, some sensible safeguards, in accordance with international law, and say, 'Let's try to avoid that. Let's learn from other countries and try to make sure that in passing this we don't exacerbate that divide and the ability of some people to use our antidiscrimination laws effectively to shut people of faith up'? Yes, it's happened before. The fear is that it will potentially get worse in the future.
We saw the intentions of some in our community when it came to Pansy Lai. We saw the disgraceful targeting of Pansy Lai because she happens to have a view on marriage. In the view of some activists and the view of thousands of people who signed a petition, people like Pansy Lai shouldn't be able to practise as doctors, because they have a view of marriage that is currently expressed in our law but will not be in a couple of weeks time. I would argue that it will be harder for future Pansy Lais—or medical boards or others—to resist those kinds of things when the law of the land has changed. So putting in place some sensible safeguards seems to me to be very reasonable.
I want to make one other point in relation to Safe Schools and parental choice. When you ask virtually any parent faced with some of the material around things like the Safe Schools curriculum, whether a parent should know about that and have the opportunity to withdraw their child from those kinds of classes, you get an overwhelming response in the affirmative: that they should. As Senator Fawcett has pointed out, in accordance with their rights under the international covenant on the religious and moral instruction of their children, parents should be able to withdraw their children from those classes. This is something that is worth fighting for. People who are voting on these amendments would do well to consider whether they want to vote for that kind of situation, whether they want to vote against an amendment that would protect those rights.
No doubt we're going to hear from others who will argue the opposite. But go out there into the community and say, 'No, I don't support the right of parents to be able to withdraw their children from those types of classes,' and see how you go. During the campaign we saw the absolute distancing from things like Safe Schools, whereas some of the Greens senators in their contributions earlier this week said that we should absolutely bring the issue of Safe Schools and the issue of same-sex marriage together. It absolutely doesn't have to be, because we've got the opportunity here in this chamber, and when it's debated in the House of Representatives, to say, 'No, we do support parental rights.' I support parental rights. I think the vast majority of our constituents support parental rights in these areas. I would say to senators: demonstrate that you support those rights by voting for some of these amendments. Demonstrate that you don't want to see people discriminated against because of their views on marriage, whether it's in employment, whether it's in speech or whether it is in these fundamental issues of parents' ability to determine the moral and religious instruction of their children.
Those are pretty fundamental things for me. I think they have been pretty important things for us as a political movement at the centre-right of politics. The ideas of freedom of religion, freedom of speech, parental rights and freedom of conscience are fundamental to who we are as Liberals and Nationals. I would rarely hear at a branch meeting or from our supporters that we should water down protections when it comes to freedom of speech, freedom of religion and parental rights. It's very rare, in fact, that I've heard a supporter of the Liberal and National parties arguing for that, and, I think, with good reason, because these things are foundational to who we are.
So, Chair, I put to you and, through you, to senators that these amendments are well worth supporting. In fact, voting against them will send a very negative message about our views about some of these fundamental freedoms. To those Labor senators who have expressed some of these concerns—and we heard some of those concerns expressed in their speeches—I think it is bitterly disappointing that you don't have the freedom to vote according to your conscience when we were told by your leader that there would be a conscience vote. So I repeat: we have a conscience vote on this side and there will be a conscience vote, presumably, on some of the crossbenches, but there won't be a conscience vote on these fundamental issues in the Australian Labor Party. I think it would be better if there were, but I commend these amendments to the Senate.
Senator RICE (Victoria) (18:30): I just want to remind all of us here and those who may be listening at home that we are debating marriage, because anybody that has been listening in for most of the last hour and a half might think we have, in fact, begun the debate that we're looking forward to having sometime next year about the far-reaching, complex reform of our antidiscrimination laws. Yes, that's needed. But I want to remind you that we're here because the majority of Australians have said they want change in our marriage laws to remove discrimination so that lesbian, gay, bisexual, transgender and intersex people can share in the rights of marriage along with all other Australians. It's pretty simple.
A lot of what we've been hearing about is, as I said, much more far-reaching discrimination—in fact, it is entrenchment of further discrimination. In fact, it's using marriage as a Trojan Horse to try to implement the right-wing agenda of the right-wing warriors of the Institute of Public Affairs. This is not about marriage; it's not what the majority of Australians want us to debate today. I would be almost tempted to leave my contribution there, because all of the other points, and certainly the far-reaching things that are included in these proposed amendments, do not belong in the Marriage Act—full stop. There are some significant issues, some concepts, some debates that we almost certainly do need to have as a country. When does one person's religious freedom become another person's discrimination? That's basically what we're talking about—how do you weigh up people's freedom to manifest their religion? When does that then becomes a discrimination?
In other countries around the world, that's done through having a human rights act, a bill of rights or a charter of rights so that you can actually have the legal cases that say, on the one hand, 'This is my right to manifest my religion,' and say, on the other hand, 'By you manifesting your religion that way, you are discriminating against me as an LGBTI person.' That's where we need to be having that debate and resolving those issues. We cannot resolve it—and we shouldn't be resolving it—in the Marriage Act.
I want to quickly talk through some of the key themes that have been raised in the debate this afternoon. Firstly, there is the completely wrong assertion that anything that is in this bill is going to impact upon freedom of speech. There is nothing in this legislation that is going to impact upon people's freedom of speech. Once this legislation goes through the parliament, our legislation over freedom of speech is going to be as it was before. It's interesting that, of the legal cases that have been raised—and we've had a range of Australian cases that have been referred to—none have been through the full legal process. We've heard about Archbishop Porteous a number of times. That legal case was not completed under Tasmanian antidiscrimination law. It probably would be appropriate for a test case of that sort to be completed so that we then know where we stand under Tasmanian antidiscrimination law. But it hasn't been completed at the moment, so you cannot use it as an example as to how this bill is going to impact upon freedom of speech. The other cases we have been talking about are all in jurisdictions that have very different antidiscrimination laws. In fact, they all have bills of rights. They all have the ability to be judging whether someone's freedom of religion is impacting too detrimentally upon somebody else's rights. They are not applicable to the Australian situation, and nothing in this law is going to impact upon Australians' freedom of speech.
The second point I want to raise is about the incredibly far-reaching elements of the antidetriment laws that have been proposed here. They've been described as a shield—absolutely, they look like a shield. They mean that anybody would have the ability to say the most outrageous, offensive, bigoted things against lesbian, gay, bisexual, transgender, intersex or queer people, or about their relationships, their children or how fit they are to be parents, and no-one could take action against them. Under our existing antidiscrimination laws they would not be able to take action if this antidetriment clause were put in place. That would be enabling the most far-reaching discrimination against LGBTI people, far beyond anything we have seen or are experiencing currently in Australia. It would be an extraordinary development, not in antidiscrimination but in discrimination against LGBTI people, which is exactly what the Australian people did not want to see. The Australian people wanted to see removal of discrimination under marriage.
Finally, I want to go to the issue of so-called parental rights, which is the whole issue of what is taught in schools. Frankly, I see this as being a last-ditch effort to basically not accept that lesbian, gay, bisexual, transgender and intersex people exist. They exist in schools. Young kids know that they are trans. They know that they would like to affirm the gender that they really are. Whether parents like that, whether the schools like that, whether the authorities like that or support that, it doesn't negate the fact that they exist. We know that supporting young trans, gay, lesbian and bisexual people in our schools is incredibly important, because it does save lives. It's particularly the case where you have a young trans person or a young same-sex-attracted person whose parents are very unaccepting of their sexuality or their gender identity. They are the people who are most at risk. They're the people who most need the support of their school community, of their peers, because they are the people whose lives are going to be saved by having that supportive school environment. The sorts of discrimination against those young people that would come into place if these amendments were put into place would be extraordinary. It would almost certainly result in more young people taking their own lives. I know that's an extreme thing to say, but it is true. We know that having programs like Safe Schools in schools saves lives. It is shown; it is proven.
So that is what we are talking about. We are talking about accepting that lesbian, gay, bisexual, transgender, gender fluid, gender diverse, intersex and other queer people really exist and deserve to have the support of our society so that they know they are accepted by society, that they are valued and that they are cherished. That is what is under attack by the sorts of amendments that are being proposed this evening.
Senator FIERRAVANTI-WELLS (New South Wales—Minister for International Development and the Pacific) (18:39): I really am concerned about where the debate on the Marriage Amendment (Definition and Religious Freedoms) Bill is going. Senator Rice—really!—if you're going to make those sorts of statements you need to come in with some evidence. I'm sorry, Senator Pratt, perhaps I misunderstood you, but equating concerns about marriage to concerns about a pork chop—I mean, really! Is that what we have deteriorated to?
I would like to make some observations about the Ruddock committee. As senators will recall, Philip Ruddock and I were appointed in 2005 to embark on a national conversation about citizenship. As a consequence of that appointment, Philip and I undertook extensive consultation. It took us about a year to produce a report, and it took even longer for the recommendations to ultimately find their way into our parliament to be enacted as legislation. It is very disappointing—and I associate myself with the comments that have been made by other senators—to see members of the Labor Party who we know hold views and have expressed concerns in relation to this effectively being muzzled, because they're not allowed to exercise their conscience on this very important thing. Of course, they have now been told there's going to be this Ruddock report. But, rest assured, if you are going to do a comprehensive report and take a comprehensive look at this issue—which I think is a lot more complicated than the citizenship work that Philip and I did—it's going to take a long time. So we are not going to have recommendations coming to our chambers for a long time, and this issue is going to continue for all of that time. Some of you are saying, 'No, we don't want to put in any protections at this point.' Does that mean we are going to continue with this debate for the next year or two?
Senator Rice and others who have spoken: you too need to accept that, for some people, marriage between a man and a woman is a fundamental bedrock issue for their family. Many millions of migrants to this country hail from traditions and cultures where the family, and marriage between a man and a woman, has been the bedrock institution upon which their heritage has been founded for millennia. Many Australians of different heritages and faiths strongly believe this and want this to continue. They are very concerned about a change to the definition of marriage—and rightly so. They have a concern that their culture, which has been focused on the family, is going to change if marriage is redefined. Their concerns centre on the rights of parents in particular—I know because they have raised this directly with me in many different settings. Parents from different backgrounds want to raise their children and have them taught in schools consistent with their own culture and their own religion. Their concerns centre on their freedom to think and to speak their own cultural and personal views. Their concerns are centred on their faith. With many different faiths practised among Australia's diverse communities, and with many different faith based schools in Australia, their right to practise their faith freely and fully is absolutely of concern. These are the very people that those opposite profess to represent, especially in Western Sydney. I'd like to be a fly on the wall when people like Sam Dastyari and others—
The CHAIR: Senator Fierravanti-Wells, please remember to address senators by their correct title.
Senator FIERRAVANTI-WELLS: I'd like to be a fly on the wall when Senator Dastyari and others have the conversation with leading community and faith leaders in Western Sydney. What are they going to say to them?
They will say: 'We let you down. We're really not interested in your views. We're happy to have you. We're happy to stack you into our branches, but we're not interested at all in protecting your rights, listening to your concerns and affording you the protections that we know you deserve but that we are not prepared to give you, because we've been gagged. Sure, we want you to vote for us, we want you to stand in our booths and we want you to sit in our branches, but we're not going to be prepared to respect your religious views and most especially your concerns about issues pertaining to parental rights and issues in your schools.'
Senator WHISH-WILSON (Tasmania) (18:45): I'm only going to speak for a short time, but I have been in here for 45 minutes listening to this, and I tell you what, Senator Fierravanti-Wells: if I were Senator Dastyari and I were speaking to the leaders of those religious minorities you referred to, what I would say to them is: 'The reason I've taken my stance on marriage equality is the same reason I support you: because I support minority groups. I support groups that have been persecuted and discriminated against in this country.' That's the simple answer to that question for Senator Dastyari. If he wants a simple answer, that's a good one. That's exactly what we're doing here today: we're trying to pass legislation that prevents discrimination.
I have listened to some absolute tripe in here about Christian values from your side of the chamber. As I said in my first speech on this topic, I was a practising Christian myself until my early 20s and, when I think of Christianity and Jesus, I think of love, I think of compassion and I think of understanding—everything that I'm not hearing from your side of the chamber today about LGBTIQ people in this country and elsewhere who have been discriminated against, who have been persecuted and who are under pressure.
So let's cut the crap—all the religious crap. There are a lot of people in here and outside this chamber who are religious and who do support equal marriage. It's not just those out there saying, 'We have to have our conservative values in place.' It's almost as if we've gone from 1,500 years of having a church-controlled state to a situation where suddenly now we might have a state-controlled church, where this legislation is somehow going to impact on the power of the clergy and religion in this country. We can accept everyone's views in here. We can accept diversity, but I'd like to see at least something from your side of the chamber here in this debate today that says there are Christians out there that believe in love, in compassion and in understanding other human beings for what they are. I'm very proud that I'm one of those people, and I'm sure there are lots of other Australians. So please, when you're addressing these issues, at least be equal and fair in your statements.
The CHAIR: Just before I give you the call, Senator Smith, I remind senators to make their comments to the chair and not across the chamber.
Senator SMITH (Western Australia—Deputy Government Whip in the Senate) (18:48): I'd just like to reflect briefly on what I thought was a correct sentiment from Senator O'Sullivan. Senator O'Sullivan said, 'We must think carefully and steadily about these issues.' While Senator O'Sullivan's reflection is accurate, it's misplaced in terms of the context in which he made it.
The discussion we're having here this afternoon brings into stark relief an important point that is often lost on many people. That is that the bill that's before the chamber is a marriage bill, full stop. It's a bill that gives effect to same-sex marriage while at the same time protecting people's religious views about marriage, full stop. The issues that have been raised here in regard to parental rights, no-detriment clauses and charities—which no-one has mentioned yet—are issues that I agree are worthy of more detailed and comprehensive examination. In fact, that is, again, what the Senate committee report said. It did not reflect on parental rights or Safe Schools. It did reflect briefly on the issue of the no-detriment clause and it said that these things deserve much more detailed and comprehensive examination, because they're actually new concepts in the Australian legal architecture. They are untested, they are unorthodox and they require careful consideration.
There is a solution. There is a pathway forward. I have heard many senators reflect on the suitability or otherwise of the expert panel. I'm a public and private enthusiastic supporter of the expert panel process. Just for my coalition colleagues: let's reflect on a couple of things.
The contentious 18C freedom of speech debate did not get resolved to everyone's satisfaction, but there was progress because the contentious and sensitive issue of free speech in 18C was put into a process—the Parliamentary Joint Committee on Human Rights process. Out of that process came a report; out of that report came legislative change. What we're doing here, what the government itself has done and what the cabinet has endorsed is to establish a very detailed and, I think, trustworthy mechanism, chaired by no other than Philip Ruddock, to address all of these issues and other issues. So there is actually a pathway forward to allow these more contentious issues—these issues that extend beyond the issue of this marriage bill—to be dealt with and to ensure that they're done in a very comprehensive and confident manner, using the skills of Father Frank Brennan, the skills of Professor Rosalind Croucher and the skills of some others on that expert panel.
If these issues are worthy, they are worthy of considered, calm and careful consideration—to again use Senator O'Sullivan's words. It is not right to construct a broad bill that captures parental rights concerns and no-detriment clauses, because that is not a responsible way to legislate for these issues. And more than that, to legislate on these sorts of issues, particularly the no-detriment clause provision, without more thoroughly examining the situation is bad policy.
People listening this afternoon can be forgiven; they might think we're re-prosecuting the postal survey campaign. But no-one doubts that for some people the issue of parental rights and the issue of Safe Schools are legitimate concerns. There's no doubt. The committee has reflected on this and it's in the report: there's no doubt that some people think that a more detailed examination of the no-detriment arrangements is worthy. The question is: do you do it in a knee-jerk, reactive way, where you give colleagues a matter of hours or a matter of days to consider your amendment? Or do you do it in a more thorough, considered manner, with trusted people who enjoy public confidence? People like Philip Ruddock. Over the last little while we've heard lots of things said. I don't doubt that they are issues worthy of further examination. But they are not worthy to be put into this bill this evening or tomorrow, because that is an irresponsible way in which to legislate.
I do have a lot of confidence in the expert panel process. I'd go so far as to say that the fact that the terms of reference have not yet been set for the expert panel is a good thing, because it does mean that these sorts of considerations at the conclusion this chamber's deliberation on this very narrow bill can be properly incorporated into the terms of reference and given the thorough examination that they deserve—because the issue of freedom of religion or religious freedom in this country extends beyond the lens of Christian religious freedom. Much of what we have heard here today is a discussion about Christian religious freedom. In a country like ours, the religious freedoms of others and other faiths deserve to be understood, discussed and accommodated. How we do that is complex, and I'm sure that coalition senators would agree with me, or at least concede that point: it is a matter that is going to require careful consideration. Parental issues should not be dealt with in a bill like this. No-detriment clauses which are untested, untried in Australian law, should not be imported into a bill like this. The responsible approach on these matters captured in this amendment are best dealt with through the expert panel process.
Now, it's worth noting as well that something that has not been touched on in contributions by others thus far is the protections that have been offered to charitable concerns, which are captured in this amendment. This was an issue that I was particularly alert to because it's worth noting that charities, as a matter worthy of attention, were not included in the government's exposure draft. You could make one or two conclusions or interpretations from that: they were overlooked or they were consciously excluded. The bill that's before us is silent on the issue of charities, so I took it upon myself, during the course of last week, to write to both the Australian Commissioner of Taxation and the Acting ACNC Commissioner to get clarity, to get certainty, that there was nothing in this bill that would adversely impact upon charities. I am pleased that they were able to provide timely responses to me, and I'm grateful to them for that. I'm happy to table the two letters that I received from the Taxation Office commissioner and the charities commissioner.
Before I do, let me just briefly capture some of those comments for the record. I asked the charities commissioner two questions. The first was whether a religious charity that currently holds and/or expresses a view of or a position on marriage will be able to continue to do so without any negative impacts on its charitable status following the enactment of amendments to the Marriage Act to allow same-sex couples to marry—that is, the future act. 'The short answer', the commissioner said to me, 'to this question is yes'. The second question I asked the charities commissioner was whether the lawful refusal to conduct a marriage ceremony, deliver goods or services, or hire facilities to same-sex couples or other couples in accordance with the future Marriage Act and current exemptions in federal, state and territory antidiscrimination laws would result in any adverse consequences in relation to an entity's charitable status. 'The short answer', he says in his correspondence to me, 'is no'.
For the sake of completeness, the Australian Taxation commissioner says:
… a religious charity holding or expressing a view of a religious nature (position on marriage) will not have an impact on DGR endorsement.
He goes on to say:
Similarly, lawful refusal to conduct a marriage ceremony, deliver goods and services or hire facilities in accordance with the Future Marriage Act will be unlikely to impact DGR endorsement. These activities would fall outside the scope of the general DGR categories and would not prevent DGR endorsed religious charities from fulfilling their DGR purposes.
There's an important point that has been overlooked in many of the contributions today: we are not legislating for same-sex marriage in the absence of religious protections, but we are legislating for same-sex marriage in our country while very, very conscious that religious protections already exist in other places of Australian law. And not only do they exist; they actually operate, and operate well, as demonstrated by the letters from the charities commissioner and by the letter from the Australian Taxation commissioner. I'd go on to say that the existence of these laws and the operations of these laws can give people great confidence in legislating for same-sex marriage and that, combined with the religious protections regarding people's views of marriage which are in this bill, they can give people great confidence.
There are two world views at play in this chamber this afternoon. One world view that I happily subscribe to is that by legislating for same-sex marriage, in the context of Australia's existing laws, nothing much happens except more people can enjoy the institution of marriage, can be embraced by their families and can enjoy the benefit of having one less plank of discrimination. The other world view is that somehow the world ends for Australians and Australian families. That's just not true. It is just not true. And you don't have to put your faith in Senator Smith or put your faith in anyone else; you just have to go to New Zealand, go to Canada, go to the United Kingdom and see people getting about their business and getting about their lives. It is not right to compare the Australian legal framework with the legal framework of other like nations. The existence of bills of rights and charters of rights significantly changes the application of laws in those countries. That was a point that was made at the Senate committee hearings. I understand that they are compelling debating points for people, but they are just not suitable and just not appropriate in this context.
The issue of the no-detriment clause is one worthy of great caution, again, because the Senate committee report did state that the current protections for religious freedom do need to be enhanced, most appropriately through the inclusion of 'religious belief' in federal antidiscrimination law. The Senate committee report does not say that these things should be ignored or overlooked; it provides a pathway. Importantly, though, the issue was not canvassed extensively during the inquiry and was not proposed in the government's own exposure draft. If the government was not proposing it in its own exposure draft, what does that say about not just the necessity of it but the legal risk that the government was or was not prepared to take? The committee report went on to say that further examination of the potential form and consequences of a no-detriment clause would be required before it could be recommended by the committee—a prudent approach for legislators.
That is not to dispute whether these are important issues for consideration. The point is that these amendments do not deserve to be supported because they do not fit into the marriage bill that is before this Senate chamber. They are worthy of more detailed consideration by the expert panel that's been established by the government and endorsed by the cabinet—a process that I personally have a lot of trust and faith in—because we have seen in recent times that when issues are put into such a process they are dealt with calmly and comprehensively. You can look at 18C and free speech as an example. People's needs and concerns can be properly met, understood and legislated for if the need arises.
I would point out that we have heard little or nothing in the contributions this afternoon about the deficiencies in Australia's current laws providing for religious protections. I challenge proponents of amendments to this bill by saying: that is your first task—what is the failing in the current legal architecture around religious protections? I will not be supporting these amendments.
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (19:02): I want to respond quickly to a couple of those comments. As senators would be aware, I chair the Joint Standing Committee on Foreign Affairs, Defence and Trade. Following on from the Senate select committee inquiry and the evidence there that said religious freedom wasn't adequately protected in Australia, the Human Rights Subcommittee has been conducting an inquiry. Whilst I can't talk to the content of the report, which will be coming out very soon, what I can say is that the evidence given to that inquiry, including by the Australian Human Rights Commission, indicates that the protections for religious freedom in Australia are indeed lacking, in both consistency and substance, and the interplay between federal and state laws is an issue. The United Nations' sixth periodic review of Australia likewise highlighted that Australia has very poorly implemented any protections for religious freedom in law. That is why we have the issue that state antidiscrimination provisions are the things causing detriment to people, not so much federal law. While Senator Rice made the point that nothing in this bill will lead to an issue for people of faith, it is the action of state and territory antidiscrimination laws that is already, even before the law has changed, causing issues. My colleague Senator Smith said, 'Why don't you go to New Zealand and see the sky hasn't fallen in?' You don't have to go that far. Just go to Tasmania.
We heard from Senator Rice that we should stop referring to Archbishop Porteous. I won't. How about we refer to Mr Markham and Mr Gee, two gentlemen who have been taken before the commission in Tasmania because they put forward their support for traditional marriage?
Unlike Archbishop Porteous, who had the Catholic Church, with relatively deep pockets, to fork out the tens of thousands of dollars for their legal fees, here we have two people who are genuinely not highly paid in the professions they do, and tens of thousands of dollars could indeed prove to be devastating for them in terms of their family finances, mortgages, houses et cetera. Figuratively, for those people, the sky may well fall in terms of what they are exposed to currently. This is not an overseas jurisdiction. This is happening right now in Australia to two people who have expressed their view about the traditional definition of marriage. So this is not a figment and not a forecast from somewhere else; this is happening right now. The concern with pushing things off into an inquiry, as we heard from Senator Fierravanti-Wells, and as has been acknowledged the last time we tried to align antidiscrimination laws, is that it takes a long time.
I have one other comment to Senator Smith, who said, 'This government bill.' I remind senators that it didn't go through the cabinet or the party room. It was not a government draft bill that was put out with the provisions for the plebiscite, which were not supported in this place. Finally, there is another amendment which deals with charities. I will talk about that in more detail later.
Senator PATERSON (Victoria) (19:06): I want to add to Senator Fawcett's comments and expand on them about charities specifically. Senator Smith made the observation in his contribution that there had not been much comment about charities in this amendment. That's because this amendment doesn't deal with charities. It deals with charities in a tangential way, which I will go to. But, as Senator Fawcett said, there is a standalone charities amendment, on sheet 8329. I assure you we will be speaking at great length about charities during debate on that amendment and, particularly relevantly, about the ATO's letter and the ACNC's letter.
The way in which this amendment deals with charities is in one narrow sense. It's in section 88K, the anti-detriment clause, which protects individuals from unfavourable treatment. It says that, in the provision of economic benefits including grants, funding or subsidies, an organisation or individuals can't be discriminated against because they hold a traditional marriage belief. What that means is a government department, for example, which hands out grants cannot decline to provide it to an organisation or remove it from an organisation based solely on its view on marriage. As relevant and interesting as letters from the ATO or ACNC commissioners are, they have no power over the granting of government funding and it is not relevant to this part of the amendment. If you want to ensure that a government department or agency cannot take away a grant to an organisation—for example, a religious charity—because that charity has a view on marriage while also delivering services through that grant, then the only way to ensure that can't happen is by voting for these amendments.
The CHAIR: The question is that amendments (1) to (10) on sheet 8327, as moved by Senators Fawcett and Paterson, be agreed to.
The committee divided. [19:12]
(The Chair—Senator Lines)
Senator IAN MACDONALD ( Queensland ) ( 19:12 ): (In division) Madam Chair, perhaps I'm a little late, but, again, can we vote on these amendments separately, because I agree with all but the last of the proposals here?
The CHAIR: Just so we're clear, do you mean amendment (10) on sheet 8327?
Senator IAN MACDONALD: The right to remove children from schools. I do agree with that, but not in this bill.
The CHAIR: As I understand it, Senator Macdonald, it is clause 88R within amendment (8). You would need to seek leave because we are now in the division.
Senator IAN MACDONALD: I seek leave to have that one voted on separately.
The CHAIR: Yes, you need the leave of the committee. Is leave granted? Sorry, Senator Macdonald, leave is not granted.
Senator IAN MACDONALD: I didn't hear that, Madam Chair. Did someone refuse?
The CHAIR: Yes, Senator Macdonald. As you know, only the one voice is required, and there was at least one voice. Before returning to further amendments, I want to address the point of order taken by Senator Macdonald when the committee reported prior to question time.
It is appropriate for me, as Chair of Committees, to rule on points of order in relation to committee proceedings, although I appreciate that the timing of the proceedings meant it was opportune of Senator Macdonald to raise the issue when he did. Senator Macdonald had sought to have the question dealt with before question time further divided for a group of amendments before the committee on which the committee had already proceeded to divide. As noted in Odgers' Australian Senate Practice at page 283:
In practice, the chair divides a question … at the request of any senator, so that no senator is compelled to vote for or against two or more proposals in relation to which they may wish to vote differently.
It can be difficult to implement that practice, however, where the request to divide a question is not made prior to the question being put by the Chair. In addition, it is not possible for the Chair to divide a question once a division has been called on the original question unless leave is granted to call off the division. This is provided for in standing order 99(3).
As has now become clear, Senator Macdonald wished to vote differently on one amendment, which I understand has now been identified as amendment (7) on sheet 8326. As the question in relation to the amendment has now been determined, the vote cannot be put again except by leave. After my discussions earlier with Senator Macdonald, however, it is my intention to give Senator Macdonald the call, if he so wishes, so that he has an opportunity now to indicate on the record how he would have voted differently. Senator Macdonald, do you wish to take the call?
Senator IAN MACDONALD (Queensland) (19:20): Thank you, Madam Chair. I appreciate the courtesy and also the courtesy of you speaking to me before. I think you indicated that, by leave, I could call for the vote to be reheld, but clearly it would haven't made any difference to the outcome. I did in taking the point of order make my point clear, but I appreciate the opportunity to make it absolutely clear on the previous set of amendments. The amendment dealing with the definition of marriage I would have voted against but for the other provisions, and that's why I wanted them divided. Similarly, while I'm on my feet, can I say in relation to the ones we've just dealt with now that, whilst I agree with the last of the amendments—about giving parents the right to take children out of school—I don't think it's appropriate in this legislation, so I would have voted against that on this legislation if we could have put the vote again. But the Labor Party refused leave to put the vote again, and so I've had to vote against all of those. That's probably not what I would have done had it been possible to divide them. Thank you for the opportunity, Chair.
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (19:21): I rise to address the amendments on sheet 8328, which should be fairly uncontroversial, I would hope. During the Senate select committee, the issue of chaplains—
Honourable senators interjecting—
The TEMPORARY CHAIR ( Senator Bernardi ): Could you resume a seat for a moment, Senator Fawcett. Honourable senators, I would ask that, if you have concluded your business in the chamber for the moment, you hastily make for the exists and keep your private conversations to a minimum. Before I call Senator Fawcett again, I perhaps might invite him to seek leave to move the amendments together if that were his wish.
Senator FAWCETT: by leave—I move amendments (1) to (13) on sheet 8328 together:
(1) Clause 1, page 1 (lines 6 and 7), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment (Definition and Protection of Freedoms) Act 2017".
[short title]
(2) Schedule 1, item 2, page 5 (lines 1 to 4), omit subparagraph (b) (ii) of the definition of authorised celebrant, substitute:
(ii) an authorised officer.
[consequential—authorised officers]
(3) Schedule 1, page 5 (after line 4), after item 2, insert:
2A Subsection 5(1)
Insert:
authorised officer means an officer (within the meaning of the Defence Act 1903), other than a chaplain, authorised by the Chief of the Defence Force under section 71A to solemnise marriages under Division 3 of Part V.
[definition of authorised officer]
(4) Schedule 1, item 4, page 5 (lines 9 to 12), omit all the words from and including "officer", substitute "authorised officer".
[definition of prescribed authority]
(5) Schedule 1, page 5 (after line 17), after item 5, insert:
5A After section 5
Insert:
5AD Determining when a belief is held etc.
(1) For the purposes of this Act, a person holds a genuine religious or conscientious belief, or genuinely believes, if the holding of the belief (inclusive of the person's or entities beliefs as to the actions, refusals, omissions or expressions that are consistent with that belief)is not fictitious, capricious or an artifice.
(3) For the purposes of this Act, if a chaplain or an authorised officer holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, then in holding, expressing or acting on that belief:
(a) whether or not another person who is to be married is a man or a woman is to be determined by the chaplain or authorised officer; and
(b) in determining whether the other person is a man or a woman, if the chaplain or authorised officer reasonably believes and genuinely believes that the current legal status of the other person as a man or a woman is different from the legal status of the other person as a man or a woman at the time of the other person's registration following the other person's birth, the chaplain or authorised officer may disregard the current legal status of the other person's sex or gender, or their gender identity or intersex status.
[determining when a belief is held]
(6) Schedule 1, item 6, page 5 (lines 18 and 19), omit the item, substitute:
6 Paragraph 21(2 ) ( b)
After "the chaplain", insert "or authorised officer".
[consequential—authorised officers]
(7) Schedule 1, item 22, page 12 (lines 12 and 13), omit the item, substitute:
22 Subsection 71(1)
After "a chaplain", insert "or an authorised officer".
[consequential—authorised officers]
(8) Schedule 1, item 23, page 12 (line 16), omit the heading to section 71A, substitute:
71A Officers authorised to solemnise marriages
[consequential—authorised officers]
(9) Schedule 1, items 24 and 25, page 5 (lines 20 to 25), omit the items, substitute:
24 Paragraphs 72(1 ) ( a) and (b)
After "the chaplain" (wherever occurring), insert "or authorised officer".
25 Subsection 72(2)
After "the chaplain" (wherever occurring), insert "or authorised officer".
[consequential—authorised officers]
(10) Schedule 1, items 27 to 56, page 12 (line 28) to page 15 (line 22), omit the items, substitute:
27 Section 74 (heading)
After "chaplain", insert "orauthorised officer".
28 Subsection 74(1)
After "the chaplain", insert "or authorised officer".
29 Subsection 74(3)
After "chaplain", insert "or authorised officer".
30 Section 75 (heading)
After "Chaplain", insert "or authorised officer".
31 Section 75
After "A chaplain", insert "or authorised officer".
32 Section 75
After "the chaplain", insert "or authorised officer".
33 Subsections 76(1), 77(1) and 78(2)
After "chaplain", insert "or authorised officer".
34 Section 79 (heading)
After "Chaplain", insert "or authorised officer".
35 Section 79
After "A chaplain", insert "or authorised officer".
36 Section 79
After "the chaplain", insert "or authorised officer".
37 Subsection 80(1)
After "a chaplain", insert "or authorised officer".
38 Subsection 80(1)
After "the chaplain", insert "or authorised officer".
39 Paragraphs 80(2 ) ( a) and (c)
After "the chaplain", insert "or authorised officer".
40 Subsection 80(4)
After "The chaplain", insert "or authorised officer".
41 Subsections 80(5) and (6)
After "the chaplain", insert "or authorised officer".
42 Subsection 80(8)
After "a chaplain", insert "or authorised officer".
43 Subsection 80(9)
After "the chaplain" (first occurring), insert "or authorised officer".
44 Paragraph 80(9 ) ( b)
After "the chaplain", insert "or authorised officer".
45 Subsection 80(10)
After "a chaplain", insert "or authorised officer".
46 Section 81 (heading)
Repeal the heading, substitute:
81 Power to refuse to solemnise marriage
Chaplain or authorised officer may refuse to solemnise marriage on any grounds
47 Section 81
Omit "A chaplain", insert "(1) A chaplain or authorised officer".
48 Section 81
After "the chaplain" (wherever occurring), insert "or authorised officer".
49 At the end of section 81
Add:
Chaplain may refuse to solemnise marriage on the basis of religious or conscientious beliefs etc.
(2) To avoid doubt, a chaplain may refuse to solemnise a marriage despite anything in this Part or any law of a State or Territory, if any of the following applies:
(a) the refusal is consistent with the doctrines, tenets or beliefs of the religion of the chaplain's religious body or religious organisation;
(b) the refusal is because of the religious susceptibilities of adherents of that religion;
(c) the chaplain's genuine religious or conscientious beliefs do not allow the chaplain to solemnise the marriage.
Authorised officer may refuse to solemnise marriage on the basis of genuine religious or conscientious belief
(3) Despite anything in this Part or any law of a State or Territory, an authorised officer may refuse to solemnise a marriage that is not the union of a man and a woman, if:
(a) the officer holds a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; and
(b) the holding by the officer of that belief does not allow the officer to solemnise the marriage.
Grounds for refusal not limited by this section
(4) Subsections (2) and (3) do not limit the grounds on which a chaplain or an authorised officer may refuse to solemnise a marriage.
50 Subsection 83(2)
After "a chaplain", insert "or authorised officer".
51 Section 84 (heading)
After "a chaplain", insert "or authorised officer".
52 Paragraph 84(1 ) ( a)
After "a chaplain", insert "or authorised officer".
53 Paragraphs 84(1 ) ( b) and (c)
After "the chaplain", insert "or authorised officer".
54 Subsection 84(1)
After "the chaplain" (last occurring), insert "or authorised officer".
55 Paragraph 85(1 ) ( b)
After "a chaplain", insert "or authorised officer".
56 Paragraph 85(1 ) ( c)
After "the chaplain", insert "or authorised officer".
56A Subsection 85(1)
After "the chaplain" (last occurring), insert "or authorised officer".
[authorisation of officers / chaplains and authorised officers may refuse to solemnise marriages / authorised officers]
(11) Schedule 1, items 59 and 60, page 16 (lines 1 to 4), omit the items, substitute:
59 Subsection 99(3)
After "A chaplain", insert "or authorised officer".
60 Subsection 116(2)
Omit "celebrant or chaplain" (wherever occurring), substitute "celebrant, chaplain or authorised officer".
[authorised officers]
(12) Schedule 1, item 62, page 16 (lines 7 and 8), omit the item, substitute:
69 Paragraph 119(3 ) ( f)
After "chaplain", insert "or authorised officer".
[authorised officers]
(13) Schedule 1, item 63, page 17 (after line 24), after subsection 40(2AB), insert:
(2AC) An authorised officer in the Defence Force may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if the circumstances mentioned in subsection 81(3) of the Marriage Act 1961 apply.
[Sex Discrimination Act 1984]
The amendments here are relatively straightforward and, I would hope, uncontroversial. During the Senate select committee the issue of chaplains in the Defence Force, who have traditionally conducted marriages for servicemen overseas, came up. Whilst the initial discussion went to the fact that they are employees of the government and therefore should just carry out the law according to the civil definition of marriage, what became clear during evidence presented to the Senate select committee was that they are in fact appointed to that role by their respective denominations and therefore should and in fact do enjoy the same exemptions that apply to a minister of religion. That was accepted by the Senate report and indeed accepted by Senator Smith in his bill.
The workaround that the committee decided on was that the Chief of the Defence Force, if he had a force deployed overseas, should be able to appoint an officer to conduct weddings if there was a member of the Defence Force overseas who was going to get married. The purpose of this amendment is purely to recognise that, just as the Defence Force when it appoints somebody makes sure they have the relevant competence to do the task, the individual officer has the same human right under article 18 to their freedom of religion and belief. Therefore, the practical effect of this amendment would be that, before the CDF made that appointment, they would ask the officer concerned if they were happy to conduct same-sex weddings. If they were, the appointment would go ahead. If they weren't, because they do have that individual right to freedom of religion and belief, the CDF would make the appointment of another officer who was happy to do that.
As the bill currently stands, the CDF can make that appointment without taking regard of the individual's conscientious objection. Bear in mind that, unlike someone who works in a registry office, where this is the purpose they were employed for, in this case the officer of the Defence Force is employed in either the Air Force, the Navy or the Army for the primary purpose of conducting military operations, and this is a secondary duty. So the operational effect of this amendment would be that the Defence chief would need to check that the officer they wanted to appoint was happy to conduct same-sex marriage, and in that case that person would be appointed.
Senator PRATT (Western Australia) (19:24): Currently the bill inserts a concept of 'marriage officer' into the Marriage Act to solemnise marriages within the ADF. This is an important principle. We oppose the amendments before us because in effect you are circumventing the very purpose of the legislation that's before us today, which is essentially that these military-appointed officers should operate in the same way that a civil celebrant does—that is, that they should uphold the antidiscrimination law and not discriminate in their practice as an officer within the military who is able to solemnise a marriage. We, as highlighted, did believe it was important that chaplains who are appointed within the military are not asked to do anything that is outside the official doctrine of their faith. So here we do not feel that we need to support these amendments.
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (19:26): I just make the point that this goes to the very heart of article 18.3, which is about limiting the manifestation of religion. It says that it must be necessary. In this case, if you have a force deployed overseas, the Chief of the Defence Force has a number of officers he or she could choose from to make this appointment, and therefore it is not necessary to completely override the individual religious or conscientious beliefs of any one officer when there are multiple officers in a deployment that the CDF could choose to make this appointment. So this would be an egregious breach of our obligations under international human rights law to completely override the individual conscience or belief of one person when there are many others on the deployment who could equally be appointed if they were happy to conduct the task.
Senator RICE (Victoria) (19:27): We will also be opposing this amendment. Senator Fawcett, I appreciate your explanation of why you feel this is necessary, but nonetheless what this is doing is allowing authorised officers to discriminate. The whole point of the authorised officers, as you have explained—and Senator Pratt and I were there when we had a discussion—was to have authorised officers so there was an alternative to chaplains and, if chaplains did not want to solemnise a marriage between LGBTI people, there would be somebody else who would be able to. It may be that the intent of what you are putting here is that you can choose the authorised officer that happens to suit, but what it means is that it gives the opportunity for any authorised officer to be able to not solemnise a marriage. That goes against the full intent of the whole concept of having authorised officers: that they are there performing a service just like a civil celebrant who is not in a Defence Force situation. So, as an authorised officer, it's their responsibility to solemnise marriages that are legal according to the laws of the land, without discrimination.
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (19:28): So, Senator Rice, on that basis would you accept an amendment if it were in a different form that said that the officer had the right of refusal and could refuse the appointment by the CDF if they had a conscientious or religious objection so that the CDF could appoint another officer who was happy to take the appointment?
Senator RICE (Victoria) (19:28): I'll respond, but I'm not in a situation to respond to that and I think that the safest thing to do in these circumstances is to oppose this amendment, because there may be other consequences. Making legislation on the floor of the Senate is not an appropriate way of determining legislation. It really isn't an appropriate thing to do. We are looking at this amendment and we have realised—as it appears that Senator Fawcett didn't realise—what the concerns about this would be. We have realised that this is not an appropriate addition to this legislation.
Senator CANAVAN (Queensland—Minister for Resources and Northern Australia) (19:29): I think this exposes the rank hypocrisy of those on the 'yes' side of this debate. I remember quite clearly, during the campaign, advertising from the 'yes' side of this debate that said—and I might be paraphrasing—something to the effect that a soldier in the military puts their own life on the line but can't marry the loved one of their life. But now those on the 'yes' side are not going to support an amendment that would allow Australians who are putting their lives on the line for this country to refuse to act against the faith that guides their life. They are fundamental principles that they adhere to. When these Australians are overseas, at risk of losing their own life, they deserve the minimum of respect that would allow them to not be put in the position of acting against their fundamental religious or conscientious views.
But we can tell that the other side are taking a winner-takes-all approach here. They are not interested in listening to the five million Australians who voted no. Indeed, they're not listening to the tens of thousands of Australians in the armed forces, who do things that probably very few of us here would ever have to contemplate: putting our own life on the line to defend our nation. They want to put those Australians in that position while they themselves safely go to bed every night without having to worry about their loved ones or their lives. They want to live under the protection and safety of our armed forces, but they don't want to respect those same Australians' fundamental religious or conscientious views. It is hypocrisy in the extreme, because they come in here and present themselves as being against discrimination, against prejudice, welcoming of all different views.
We've already seen on other amendments that they don't do that, but this is so stark—that the people in our defence forces can't have their fundamental religious or conscientious views respected. I can't believe we're in the nation's parliament traducing those fundamental rights in the way we're about to by opposing these very reasonable, narrow and limited protections to those Australians who are willing to put their lives on the line to protect the safety of our country and stand up for the fundamental rights that should exist in this country, including the right to religious freedom.
Senator BERNARDI (South Australia) (19:32): I want to put on the record how I found Senator Rice's contribution when she was put on the spot to justify her position. She was entirely unable to. She made an argument, which I'm very familiar with, that decisions have consequences. Gee, where have I heard that before? And sometimes it's right just to say no. Gee, I've heard that before, as well. But clearly Senator Rice made those decisions and those statements because she was hoist on her own petard. Her justifications for rejecting the amendments moved by Senator Fawcett were dismantled. They were shown as absolutely unrelated. When Senator Fawcett offered to amend his amendments to accommodate any concerns that Senator Rice had, she said, 'No; you don't make legislation on the floor of the Senate.' For goodness sake: where do you make it, if you don't make it on the floor of the Senate? What a foolish statement—hoist on another one.
The problem we have here is that these are very sensible amendments identifying very real concerns. I said during the second reading debate that I have no ill will. We lost, fair and square, and the 'yes' voters can do whatever they like on this. But, please, would you consider accommodating some genuine concerns around religious protections, around familial protections and around freedom-of-speech protections? That's all we ask. And it's abundantly clear that those on the 'yes' side of the chamber are not prepared to concede anything. They are not prepared to give an inch—something for which, during the campaign, they mocked and derided those of us who spoke up about the concerns of millions of Australians.
It saddens me because I know this is meant to be a joyous time for those who want to get married to their same-sex partners, when what they've for a long time been asking for is going to come to fruition. We've asked to be given the respect of having these very reasonable protections considered. And I'm ashamed to say, Senator Rice, that you've just exposed how weak, hollow and flawed your ideological obsession with this truly is. It is an indictment on you that you don't think it's okay to make—
The TEMPORARY CHAIR ( Senator Whish-Wilson ): Senator Bernardi, please address your comments through the chair.
Senator BERNARDI: It's an indictment on senators, Chair, that they don't think the Senate chamber is the place to make legislation. If that's the case, you have to ask: what are they doing here?
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (19:35): As Senator Rice has raised her concern that the intent of this is to enable people who would be authorised officers to discriminate, I rise to make the point again that the intent of this is to lay down a competence check. If they are going to appoint someone to be the commander of a ship, the ADF, before they appoint someone, check if the person is competent to do it, have they had the training and do they have the requisite personality et cetera to command. Recognising that an individual could have the right of objection just means that they will seek the appropriate person to appoint. So the intent is not to allow someone who is appointed to then say, 'I'm not going to do it'. The intent is for that person to not be appointed if they have that objection to it.
As I said, there are many other options, but this goes directly to article 18.3—that is, any limitation must be necessary, and this is clearly not necessary. If Senator Rice is not prepared to make legislation on the floor of the chamber, then I would invite her, if this is going to be voted down, to go to her colleagues and to consider it before it goes to the House. If an amendment were moved in a different form, where we actually tell the ADF how they can and can't make appointments and said, 'Thou shalt not appoint someone who has an objection', if that satisfied the concern, then it would still at least achieve the outcome of respecting the individual rights—bearing in mind that human rights are individual rights, which would then mean that you could still achieve the outcome you want without offending the individual right of a person in the ADF.
Senator LEYONHJELM (New South Wales) (19:36): I want to place on the record the fact I won't be voting for this amendment and to explain why. I suspect the origins of this amendment might be traced to my own Freedom to Marry Bill, which I introduced in 2014. My view is that a civil celebrant who is not a public servant, not an employee of the government, should be free to choose who they want to marry, and that includes the gender of the people who are seeking to be married. One of my amendments is intended to achieve that, and I think it's the best of the three or four options—I'm not sure how many there are now—available.
However, what we're talking about here are public servants. This amendment seeks to create a category of celebrants, non-chaplain Defence Force celebrants, and to allow them to refuse to solemnise a marriage if they have a conscientious belief. Now this is, I think, contrary to the liberal principle of equality before the law. Equality before the law says the government does not discriminate. That's a very important principle. For a civil celebrant to discriminate in private life is a completely different matter, and I'm actually very uncomfortable with the extent to which the government already intrudes into that area of private belief. It is a civil society matter, and the government should really think twice about sticking its nose in there.
But when the celebrant is acting on behalf of the government, they should not distinguish between the people who come before them. It doesn't matter if the military celebrant, the public servant celebrant, has a conscientious belief; they are still bound by their job. They are acting on behalf of the government. In my 2014 bill I provided for that by saying they have to find somebody else. If they can't find somebody else, they still have to perform the wedding. But if they can find somebody else and get themselves out of that situation, then I have no objections to that. I think that same position would still apply. But this particular amendment takes exactly the opposite approach, and for that reason, because I think the government should never discriminate, then I'm afraid I can't support it.
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (19:39): Senator Leyonhjelm again misinterprets the amendment. The amendment is to prevent the appointment. I would have thought, as a libertarian, Senator Leyonhjelm would have supported an amendment that prevented the forced appointment of someone who had a conscientious objection. The amendment is intended to highlight they have an individual right, so the ADF will choose someone else to make the appointment. Once they are appointed, as Senator Leyonhjelm said, they absolutely have an obligation to follow through and conduct the wedding, but the intention is to respect the right of someone to say, 'I prefer not to have the appointment, because of my belief.'
The CHAIR: The question is that the amendments (1) to (13) on sheet 8328, moved by Senator Fawcett, be agreed to.
The committee divided. [19:44]
(The Chair—Senator Lines)
Senator PATERSON (Victoria) (19:48): by leave—I move amendments on page 8329 together:
(1) Clause 1, page 1 (lines 6 and 7), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment (Definition and Protection of Freedoms) Act 2017".
[short title]
(2) Clause 2, page 2 (table item 5), omit "Part 5", substitute "Parts 4A, 4B, 4C and 5".
[consequential—charities]
(3) Schedule 1, page 5 (after line 17), after item 5, insert:
5A After section 5
Insert:
5AA Meaning of entity
(1) For the purposes of the Act, an entity means:
(a) an entity (other than an individual) within the meaning of section 184‑1 of the ANew Tax System (Goods and Services Tax) Act 1999; and
(b) a non‑entity joint venture within the meaning of section 195‑1 of the ANew Tax System (Goods and Services Tax) Act 1999.
Note: The term entity includes body corporates, body politics, partnerships, unincorporated associations or other bodies of persons, trusts and superannuation funds.
(2) For the purposes of subsection (1), an entity is an entity regardless of whether:
(a) the entity is for‑profit or not‑for‑profit; or
(b) the entity is a religious body or organisation; or
(c) the entity operates to make a profit or not.
5AB Meaning of relevant marriage belief
(1) A person holds a relevant marriage belief if the person holds:
(a) a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or
(b) any one or a combination of genuine religious or conscientious beliefs that are constitutive of, supporting of or a corollary of the belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, which beliefs may include, without limitation, any of the following beliefs:
(i) a marriage that is not a union of a man or a woman is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person;
(ii) the family structure of a man and a woman united in marriage with their children is a fundamental building block of human society, and this family structure has significant advantages for the nurture and raising of children;
(iii) sexual relations should only occur within a marriage, understood as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life;
(iv) the gender difference and complementarity of men and women is an inherent and fundamental feature of human society and is reflected in the gender difference and complementarity of a man and a woman united in marriage;
(v) a fundamental feature of a marriage between a man and a woman is the modelling for children born from, or raised in, that marriage of the gender difference and complementarity of the man and the woman;
but for the avoidance of doubt, does not include the belief mentioned at paragraph 5AC(1) (b).
(2) An entity holds a relevant marriage belief if the entity has adopted:
(a) a belief mentioned in paragraph (1) (a); or
(b) one or more beliefs mentioned in paragraph (1) (b);
as beliefs the entity holds.
5AC Meaning of relevant belief
(1) A person holds a relevant belief if the person holds:
(a) a relevant marriage belief; or
(b) a genuine religious or conscientious belief that:
(i) a same‑sex relationship is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person; or
(ii) the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth; or
(iii) any one or a combination of genuine religious or conscientious beliefs that are constitutive of, supporting of or a corollary of a belief mentioned in subparagraphs (1) (b) (i) or (1) (b) (ii).
(2) An entity holds a relevant belief if the entity has adopted:
(a) a belief mentioned in paragraph (1) (a); or
(b) one or more beliefs mentioned in paragraph (1) (b);
as beliefs the entity holds.
5AD Determining when a belief is held etc.
(1) For the purposes of this Act, a person or entity holds a genuine religious or conscientious belief, or genuinely believes, if the holding of the belief (inclusive of the person's or entity's beliefs as to the actions, refusals, omissions or expressions that are consistent with, a consequence of, made in connection with, based upon, constitutive of, supporting of, or a corollary of that belief)is not fictitious, capricious or an artifice.
(2) For the purposes of subsections 5AB(2) and 5AC(2), but without limiting those subsections, an entity may state or adopt a belief as a belief the entity holds by:
(a) including the belief in its governing documents, organising principles, statement of beliefs or statement of values; or
(b) adopting principles, beliefs or values of another entity which include the belief;
(c) adopting principles, beliefs or values from a document or source which include the belief; or
(d) acting consistently with that belief.
[determining when a belief is held]
(4) Schedule 1, page 15 (after line 26), after item 58, insert:
58A After Part VA
Insert:
Part VAA—Freedom of thought, conscience, religion, expression and association in relation to holding certain beliefs
88N Non ‑discrimination in the allocation of funding
(1) Despite any law, it is unlawful for the Commonwealth, a State, a Territory or a government entity to:
(a) decline to provide funding; or
(b) impose a condition on funding that is provided;
that discriminates against a person or an entity because the person or entity:
(c) holds a relevant belief or a relevant marriage belief; or
(d) acts, or refuses or omits to do an act, because the person or entity genuinely believes that the action, refusal or omission is consistent with the relevant marriage belief or relevant belief; or
(e) expresses the relevant marriage belief or relevant belief.
Note: For paragraph (1) (a), an example of funding is a grant made by the Minister under Part 1A of the Act.
(3) In this section:
government entity means:
(a) a government entity (within the meaning of the A New Tax System (Australian Business Number) Act 1999); or
(b) an entity established by or under a law of a State or Territory.
88O Charitable status
(1) An entity does not fail to satisfy the requirement in subparagraph (b) (i) of the definition of charity in section 5 of the Charities Act 2013 for the reason that:
(a) the entity holds, expresses or acts upon a relevant marriage belief or a relevant belief; or
(b) the entity refuses, or omits, to do an act because the entity genuinely believes that the action, refusal or omission is consistent with the relevant marriage belief or relevant belief.
(2) For the purposes of paragraph (c) of the definition of charity in section 5 of the Charities Act 2013, a purpose of an entity is not a disqualifying purpose (within the meaning of section 11 of that Act) for the reason that:
(a) the entity has a purpose of engaging in or promoting, or engages in or promotes, activities that the entity genuinely believes are in connection with, or as a consequence of, the entity holding, expressing or acting upon a relevant belief or a relevant marriage belief; and
(b) if it were not for this Part, the activities may be:
(i) unlawful or contrary to public policy; or
(ii) determined to be unlawful or contrary to public policy.
[non ‑discrimination in allocation of funding / charitable status]
(5) Schedule 1, page 19 (after line 13), after Part 4, insert:
Part 4A—Amendment of the Charities Act 2013
Charities Act 2013
68A After subsection 12(3)
Insert:
(4) For the purposes of this section, disregard the fact that an entity is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984.
Note 1: For example, a body that has a purpose of advancing social or public welfare may be registered under subparagraph (1) (c) regardless of whether it is a body established to advance religion under section 37 of the Sex Discrimination Act 1984. It may be both a body that has a purpose of advancing social or public welfare and a body established for religious purposes under section 37 of the Sex Discrimination Act 1984, but for the purposes of paragraph (1) (c) regard is not had to its status under section 37 of the Sex Discrimination Act 1984.
Note 2: For example, a body that has a purpose of advancing religion may be registered under paragraph (1) (d) regardless of whether it is a body established to advance religion under section 37 of the Sex Discrimination Act 1984. It may be both a body that has a purpose of advancing religion under paragraph (1) (d) and a body established for religious purposes under section 37 of the Sex Discrimination Act 1984, but for the purposes of paragraph (1) (d) regard is not had to its status under section 37 of the Sex Discrimination Act 1984.
Part 4B—Amendment of the Income Tax Assessment Act 1997
Income Tax Assessment Act 1997
68B After subsection 30 ‑320
Insert:
30 ‑325 Bodies established for religious purposes
A fund, authority or institution does not fail to satisfy the requirements for endorsement under Division 30 of this Act for the reason that the fund, authority or institution is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984.
Part 4C—Amendment of the Fringe Benefits Tax Assessment Act 1986
Fringe Benefits Tax Assessment Act 1986
68C After subsection 123C(2)
Insert:
(3) An entity does not fail to satisfy the requirements for endorsement in subsection (2) for the reason that the entity is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984.
68D After subsection 123D(2)
Insert:
(3) An entity does not fail to satisfy the requirements for endorsement in subsection (2) for the reason that the entity is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984.
[charities]
This is the amendment that was foreshadowed earlier in discussions in previous amendments and it relates to charities. It has a number of purposes but in essence its aim is to ensure that charities which are operating today, whether or not they receive public funding, can continue to operate as they do after this law changes. They can continue to seek public funding if they're eligible for it and they can continue to retain their tax status if they're already eligible for it.
Senator Smith has helpfully written to the Australian Taxation Office and the ACNC to seek their views on whether his bill affects the rights of those charities to continue to operate as they have, and I'm pleased to hear both of those commissioners have written back to Senator Smith—letters he's now tabled—saying that there is nothing in his bill which would change the status of the charities. That is a welcome but only limited reassurance to the operation of charities in this area. Of course, as it relates to the discretion of the ATO Commissioner or the discretion of the ACNC Commissioner—at least the current ones while they are still in their roles—we can take some comfort they might not take decisions to remove charitable status. What obviously is outside the remit of a commissioner of the ACNC or the ATO is any subsequent policy changes by parliaments or by government departments at the state or federal level, and that is not protected under the Smith bill. What is also outside their control is the operation of common law and any court cases that may occur in this area. And this is not an idle concern. It's a concern that we have seen in other jurisdictions who regulate charities in a very similar way to Australia.
I'm going to quote from the explanatory memorandum that accompanied my original bill, which remains equally applicable to the amendments in this section. It relates in particular to section 88O, which is included within this amendment on sheet 8329. It states:
Section 88O introduces protections to charities to address concerns that their charitable status will be affected by the introduction of same sex marriage. Australia shares the common law of charities with the United Kingdom, the United States and New Zealand. Based on recent experience in those jurisdictions there is a concern that a failure to provide religious or faith based charities with an ability to access exemptions in charity law in respect of the question of marriage will lead to the loss of charitable status, government funding where such is conditional on that status, and tax exemptions and concessions.
On 21 August 2017 the New Zealand Charities Registration Board deregistered Family First New Zealand, a body advocating for the traditional understanding of marriage, on the basis that it 'has a purpose to promote its views about marriage and the traditional family that cannot be determined to be in the public benefit in a way previously accepted as charitable'.
It's worth noting, before I go on, that Family First New Zealand is not a political party like the former entity here in Australia but a body akin to the Australian Christian Lobby, a third-party lobby group. The explanatory memorandum continues:
Furthermore, the common law requires that charities conform to public policy. In Obergefell v Hodges, Chief Justice Roberts stated that the tax exempt status of United States religious institutions that opposed same sex marriage “would be in question,” based on the reasoning of the Court in Bob Jones University v United States. This concern has prompted the United States Internal Revenue Service to issue a clarification that, for its purposes, it will not interpret the law to remove the tax exemption of religious charities. While there are distinctions in the law of charities between the U.S. and Australia, both jurisdictions have adopted the House of Lords decision in Pemsel’s case and prima facie there is no distinction that is material to the question of whether an institution’s position on same sex marriage would be considered to be relevant to a determination of whether it continues to meet the test that charitable institutions conform with public policy.
That's important because it is possible that a charity in Australia could lose its tax status in future not through a decision of the ATO or the ACNC but through a decision of the court. The explanatory memorandum continues:
The common law requirement that a charity’s purposes not be contrary to public policy was retained on the introduction of the Charities Act 2013 by section 11(a). In light of the foregoing, there are sufficient reasons to consider that an Australian charity’s position on the question of same sex marriage may be relevant to a determination of whether it meets the requirement of a charity at law. The Bill thus amends the Charities Act in response to these concerns.
I hope that these amendments are totally superfluous and totally unnecessary—that they pass, and sit on the statute book, and are never used. But the alternative—not passing them at all—opens up the risk that charities who are doing good work today, whom we all support and want to see continue doing that good work, may lose that status in the future. I suspect that people in this debate will say that that is a misplaced fear and that the chances of that happening are remote. But I'm not willing to take even a remote chance that some charities in future will lose their charitable status, their ability to receive tax deductible donations or their ability to receive government funding conditional on their tax status. I'm not willing to put that down to hope. I think it needs to be much more reliable than that. I think we need to put in actual measures here to ensure that's not the case. This amendment, unlike the other amendments considered so far, is genuinely uncontentious. Although I support the previous amendments, I understand why other senators may not. This one, I think, is genuinely uncontentious. It just seeks to ensure that a charity that operates today can continue to operate tomorrow as it does today and that this change in the law will have no effect on it. So I would urge all senators to carefully consider supporting it. Thank you.
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (19:54): On this amendment, some people have raised questions about whether or not this is a real risk, given what the taxation commissioner and charities commissioner have issued, but the reality is under the funding side of things. Funding for bodies often comes from state governments. What we are seeing in the Northern Territory is an active review by the state government over the exemptions which are available to religious bodies. At the moment around Australia, particularly under federal law, those are exemptions in legislation which roll on from year to year. What's being proposed in the Northern Territory means that the very status of a group as a religious body and having the exemptions that they do—therefore their status, their ability to employ people aligned with their philosophy and outlook on life and their potential to continue to receive state or territory funding—is being looked at. What we see in the Northern Territory is that they are looking at whether that should be removed on a permanent basis and then renewed on an ongoing basis so people have to rejustify why they should have those exemptions. This is not something that is just in overseas law; it's not something that's going to be solved by letters from the commissioner. This is something that goes to the very heart of how nearly two-thirds of the welfare in Australia is distributed through NGOs, many of which are faith-based bodies. It goes to the heart of whether we view these bodies as charities because they do charitable work, or whether we view them as religious groups who do charitable work as a result of their religious beliefs. These amendments are appropriate in the Australian context because we're already seeing mooted changes in the Northern Territory that go to the heart of whether those bodies continue to be recognised and funded.
Senator RICE (Victoria) (19:56): It was interesting to hear Senator Paterson say that he hoped his fears regarding the status of charities were unfounded. Senator Smith's confirmation from the charities commissioner that nothing in this bill would change the status of charities is all the confirmation and assurance that you need, because, once again, this bill is about marriage. This is about legislation to change the Marriage Act so that LGBTI people can marry. Anything beyond that—if there are subsequent policy changes to common law aspects—is well beyond marriage and well beyond what the consequences of this marriage legislation would be. Again, it may be that the status of charities is something that needs to be discussed in the review of religious freedoms by Mr Ruddock. It may be that when we have the complete overhaul of our human rights act and we end up with a bill of rights—as I hope we do—this issue would be addressed, but it does not need to be addressed in this marriage legislation.
Senator WONG (South Australia—Leader of the Opposition in the Senate) (19:58): Just to clarify, if it hasn't been done by one of my colleagues, Labor's position on these amendments: we oppose the amendment on sheet 8329. I think Senator Smith has already spoken to, and tabled, a letter from Mr Jordan of the ATO in relation to these issues. Our view is that these amendments stem from a baseless concern. We don't believe there's any reason for such charities to fear they will be impacted adversely if marriage equality becomes law. There have been some overseas examples thrown around by some of those opposite. I am advised these examples do not relate to the particular charity's stance on marriage equality, but, rather, were issues associated with antidiscrimination law in the UK. I am advised there is no reasonable parallel with Australia.
I am concerned—the Labor Party is concerned—that there are those opposite who are drumming up baseless fears in this debate. I again say that Labor does not have a problem with debate on issues of religious freedom; however, we do not believe this is the right time or place, for the reasons we have previously articulated. I would also make the point your Prime Minister has set up a process to deal with this, and it is of some concern that members of his own party appear not to trust a process which their Prime Minister has set up.
Senator ABETZ (Tasmania) (19:59): I would like to hear from those opposite an absolute confirmation that they believe that charities that continue to hold to the view that marriage should be between a man and a woman only are entitled to continue to receive government funding and support without question. We've been told that what Senator Paterson and Senator Fawcett are seeking to put into the legislation is based on a 'baseless fear'. Well, let this be the test here in the chamber. Is it a baseless fear? Will the Greens and the Australian Labor Party commit themselves in this place here and now that charities will not be impacted and they would not want to see charities impacted as they have been overseas? It's all well and good to say the law's a little bit different in the United Kingdom and elsewhere. That's fine, but where do you stand on the principle? In the contributions from both the Australian Labor Party and the Greens, they were deathly silent on the issue, which makes me think it's not a baseless fear. Indeed, it is a fear that is worth protecting the charities against.
Let's not forget two-thirds or thereabouts of the charitable endeavours in this nation are actually undertaken by faith based organisations. So why is it that you would not want to protect these charities? Senator Wong and Senator Rice in absentia—I don't blame her for that; people do need to leave the chamber from time to time, but it would have been nice to have at least one Greens senator in here—could just give a nod of the head or an indication on the principle. Is it a baseless fear or not? Once again, there is studious ignoring of the proposition. Senator Wong is so deeply absorbed by the paperwork in front of her she is unable to say, 'This is a baseless fear and I will fight for the charities to continue to get government funding if they hold to the traditional view of marriage.' And this is the hollowness—yet again, very busy in the paperwork. I'd be interested to hear from Senator Siewert if she now, on behalf of the Australian Greens—
The TEMPORARY CHAIR ( Senator Whish-Wilson ): Senator Abetz, direct your comments through the chair, please.
Senator ABETZ: Thank you. I would be interested to hear from Senator Siewert. Can you tell me where that is against the standing orders? I know you're wearing your 'yes' badge, Mr Temporary Chair. That, I would suggest to you, shouldn't be happening, but, that aside, that interruption was, you must admit, not within the standing orders. So I say that I—
The TEMPORARY CHAIR: Sorry, Senator Abetz. Just hold it there a moment. Which interruption are you referring to?
Senator ABETZ: Your interruption, Mr Chair, when I invited Senator Siewert on behalf of the Greens to make a comment—
The TEMPORARY CHAIR: Senator Abetz, I made a ruling that you should direct your comments through the chair, not directly at Senator Siewert across the chamber. That is disorderly.
Senator ABETZ: Yes, but I wasn't.
The TEMPORARY CHAIR: It certainly looked like you were.
Senator ABETZ: If I want to hear from a senator who is representing the Greens, who happens to rejoice in the name of Senator Siewert, there is nothing against the standing orders to say that I cannot say that I want to hear from Senator Siewert or the Green representative in the chamber. There is nothing against standing orders in mentioning a senator's name.
The TEMPORARY CHAIR: Senator Abetz, I've made my ruling. Direct your comments through the chair. It is a pretty simple instruction.
Senator ABETZ: But I have! Oh, my goodness!
Senator Ian Macdonald: Point of order. I'm not sure that you understood. Senator Abetz is saying that he invites the Greens or Senator Siewert to answer this, that and the other. That is through the chair—
The TEMPORARY CHAIR: What is your point of order, Senator Macdonald?
Senator Ian Macdonald: Your ruling is wrong, as is your wearing of a badge that indicates a partisan view of the debate before the chair. You should be excused from the chair or you should take it off.
The TEMPORARY CHAIR: That's a fair enough point, Senator Macdonald. I didn't take that into account when I sat in the chair. I will take the badge off for you. Do you have another point of order in relation to Senator Abetz?
Senator Ian Macdonald: Senator Abetz was addressing through the chair and you've wrongly instructed him to do it. He wasn't addressing Senator Siewert directly—
The TEMPORARY CHAIR: I have made my ruling—
Senator Ian Macdonald: as you can well see.
The TEMPORARY CHAIR: Senator Macdonald! I have made my ruling. Sit down!
Senator Ian Macdonald: I was sitting down.
The TEMPORARY CHAIR: I have made my ruling, Senator Macdonald. Senator Abetz is to direct his comments through the chair so we can avoid having a disorderly chamber. Senator Abetz has the call.
Senator ABETZ: It's funny, Mr Temporary Chair, that when I invited Senator Wong in exactly the same terms as I invited Senator Siewert there was no objection from the chair. I wonder why that might have been? Oh! Because this was a request of a Greens senator. Could I just invite you, Chair, to ask the President—
The TEMPORARY CHAIR: Senator Abetz, are you making an accusation of bias against the chair?
Senator ABETZ: No. What I'm making is an observation that when I did exactly the same thing in relation to Senator Wong you remained deathly silent in the chair. I then turned my attention—exactly the same wording—to Senator Siewert and all of a sudden there was an eruption from the chair that this was against standing orders. I am just observing.
The TEMPORARY CHAIR: Just a moment. Senator Abetz, when you were talking to Senator Wong you were facing me. When you were talking to Senator Siewert you were facing the other end of the chamber. It's a fairly obvious point of order.
Senator Abetz interjecting—
The TEMPORARY CHAIR: I would ask you to reflect on that, Senator Abetz. Yes, it is.
Senator ABETZ: Right. I'm looking at you, Mr Temporary Chair.
The TEMPORARY CHAIR: Thank you.
Senator ABETZ: I invite Senator Siewert—is that in standing orders now, because I'm looking at your eyes rather than Senator Siewert's? Really! This is—
The TEMPORARY CHAIR: What is your point of order, Senator Abetz?
Senator ABETZ: It's not a point of order. I am making a contribution.
The TEMPORARY CHAIR: You just asked me a question, Senator Abetz. Do you have a point of order?
Senator ABETZ: Yes. What is the difference? You said I had to look at you when I was asking—
The TEMPORARY CHAIR: I said to direct your comments through the chair. I didn't say you had to look at me. I said when you were looking at Senator Wong you were also facing my direction. There is nothing complicated about that.
Senator ABETZ: What's the relevance of facing in your direction or anywhere else? Look, let's get on with the substantive issue and not this sort of interference that has unfortunately occurred.
The TEMPORARY CHAIR: Sorry, Senator Abetz, take your seat. You have just made an accusation that I'm running interference when I'm trying to actually chair the committee. On what basis are you making that accusation?
Senator ABETZ: Can I rephrase: delete the word 'interference' and insert the word 'intervention'. Now, the situation is that we were accused of having a baseless fear in relation to what might occur to charities. If that is a baseless fear, I invite those who are representing the Labor Party and the Greens in this debate, who happen to rejoice in the names of Senator Wong and Senator Siewert—and I will be looking at you, Mr Chairman, when I say the name 'Senator Siewert'—to tell us whether they believe that it is good public policy to allow the continuation of public funding to go to charities that are faith based and believe in marriage as being between a man and a woman. If we get that assurance from Senator Wong and Senator Siewert, on behalf of the parties that they are representing here this evening, then that would be a good indication of their good faith in this matter. But the studious way in which this request has been ignored by both party representatives is indicative to me of a very real concern that this is just a brush-off of the issue, hoping that people will not ask that fundamental question. So I invite Senator Wong and Senator Siewert, the representatives of the ALP and the Greens, to indicate to us what their position is in relation to the ongoing funding of faith-based charitable organisations that hold to the view that marriage ought be between a man and a woman.
Senator IAN MACDONALD (Queensland) (20:10): I want to ask—whilst looking at you, Mr Temporary Chair—a question of Senator Wong, on behalf of the Labor Party, and Senator Siewert, on behalf of the Greens. And I repeat for Hansard and for anyone listening that I am looking at you, Mr Temporary Chair, not looking at them. Therefore, I'm not addressing them personally, and neither was Senator Abetz. I want to ask them what the downside of this amendment is. As many would know, this is not a debate that I've followed particularly closely. I've had people with me all day, and it's been hard to follow the proceedings in the chamber. But I listened to Senator Paterson's contribution earlier—and I'm not looking at Senator Paterson when I say that, I might say; I'm looking at you, Mr Temporary Chair. I heard Senator Paterson say that he hoped that this would be unnecessary, that it would never have to be accessed if it were passed into legislation, but just in case. And I've heard what Senator Rice, I think it was, and Senator Wong have said on the issue. What is the downside when putting this in? It might be superfluous, but it doesn't take anyone backwards from what I think Senator Wong and Senator Rice have indicated is the situation. Again, whilst looking at you, Mr Temporary Chair, I wonder whether the Leader of the Opposition in the Senate—and I'm not looking at her—could explain something to me. As I said, I haven't really been able to take part in this debate before. But she's talking about the Labor position—that the Labor position is this, that and the other. And I heard Senator Pratt say in a previous contribution that 'we' are saying this.
Now, I thought this was a conscience debate. Some of my colleagues in the Liberal-Nationals parties have been voting on one side of the argument and some of them voting on the other, because obviously they have a conscience vote. I've indicated twice already myself that, because of the way the amendments were put, it was a bit difficult for me. But I would have voted with Senator Smith's proposal on the definition of marriage—for reasons I won't go into, because that debate's been and gone. But I thought the other parts of that first amendment were things that I was in favour of. So I was prepared to vote for some of Senator Smith's bill and some of Senator Paterson's bill, to give them the common terms. So we on this side are exercising a conscience vote. But I haven't seen anyone in the Labor Party do that, yet I know personally—and I don't want to disclose any confidences—that a lot of people in the Australian Labor Party who have deep religious convictions are very uncomfortable with many of the positions that their leaders are stating: 'We in the Labor Party' say this, that and the other.
So I'm wondering: whilst the Labor Party in particular—I don't mention the Greens, because I don't know any of the Greens particularly well, and I don't want to, I might say—
Senator McKim: That's reciprocal.
Senator IAN MACDONALD: Well, that's good—whoever that interjection was from, Mr Temporary Chair; I'm looking at you, not naming Senator McKim, not responding to Senator McKim for his unruly and disorderly and contrary to standing orders—
Senator Seselja: Don't look over there, Macca!
Senator IAN MACDONALD: I won't look at him.
Senator McKim interjecting—
Senator IAN MACDONALD: I know it's okay for Greens senators to interject without being interrupted, but I won't respond directly to that interjection because I know that's against standing orders!
I don't know any of the Greens particularly well. I don't think—I suspect, but it doesn't really matter—that any of them have any deep religious convictions. But I do know members of the Labor Party who do have deep religious convictions, and I know they are very uncomfortable with many aspects of this bill. Perhaps this has been dealt with before, during the day, when I haven't been able to participate. Perhaps I've missed something. But when we have Senator Wong in this debate—and I'm not looking at her; I'm looking at you, Mr Chairman—and Senator Wong says, 'We in the Labor Party say this, that and the other in relation to this,' or, as Senator Pratt said earlier, 'We will not be supporting this,' I just want to know what happened to the conscience debate. What happened to the oft-talked-about comments made, I recall, by Mr Shorten that this should be a conscience vote of the parliament? We have one side of the parliament actually allowing a conscience vote—I've certainly done that, and my colleagues have certainly done that—and yet the Labor Party seem to be speaking as one voice. So I'm wondering if Senator Wong—and I'm not looking at her—might be able to indicate to the chamber what happened to the conscience vote that was so widely talked about in the run-up to this legislation? That's one part of my question.
The other part is that if Senator Paterson is correct, and he convinced me with his contribution, that there can be no downside to this bill, I would ask Senator Wong—and I'm not looking at her, or Senator Rice or Senator McKim; I'm not looking at either of them—
Senator Abetz: Because they're not in the chamber!
Senator IAN MACDONALD: Well, I don't want to look! That was a rude interruption, Senator Abetz, but I'll take it because I wasn't able to look down there to see who was actually in the chamber. But I have snuck a glance: perhaps Senator Siewert and Senator McKim could explain on behalf of the Greens political party what the downside is? There may not be an upside—perhaps I can accept that—but, if this element were introduced into the bill, how does that take backwards any principled belief or position any of them might have in relation to this particular single aspect?
Senator SMITH (Western Australia—Deputy Government Whip in the Senate) (20:17): I would like to reflect briefly on a number of points. The first is that the expert panel process that's been established by the government and endorsed by cabinet is the right place to review people's hesitations or concerns about future risk, if they believe there is any future risk, around legislating for same-sex marriage.
The second point is the point that I made previously, and that is that this is a bill that deals with same-sex marriage and protects people's religious views about marriage, full stop. So it is simple and necessarily narrow in its construction. That is the right way in which to legislate for same-sex marriage in Australia.
Before I make my third point, it is worth noting as well that the Senate committee report reflected favourably on the idea of further exploring positive protections for religious freedom in Australia. So you could say, I think, with great confidence that the expert panel is a product of one of those issues—or a mechanism that the Senate committee itself identified. The Senate committee report said that there was common ground between many groups on the need for positive protection for religious freedom. There was widespread support from religious people, from LGBTI communities and from others that presented to the committee. So there was a view that there was a need for Australian law to positively protect those religious freedoms and that the best way to do that was by further detailed and comprehensive inquiry.
As I briefly mentioned before, I was curious as to why the issue of charities hadn't been included in the government's original exposure draft. As a result of the Senate inquiry, it's worth noting that the issue of charities wasn't further raised by any stakeholders. So, by design, there is no mention of issues around charities in this bill—nor does there need to be. There doesn't need to be because I went and satisfied myself not with unfounded concerns and not with potential risk; I sought the professional advice of the Australian Taxation Office and from the charities commissioner, and they, to my satisfaction, have confirmed for me that the risks that are being talked about are not real.
In addition to that, I would like to share and read into Hansard the attitude of Not-for-profit Law, the peak legal organisation responsible for the legal issues and the legal concerns around Australian charities. It says—and I'm happy to table this as well:
If a charity discriminates against same sex couples in accordance with the exemptions—
the exemptions as proposed in my bill—
there is no risk to its status as a charity. A charity would not lose its "public benefit" nature just because engages in legal discrimination under the exemptions, so there is no need to amend the Charities Act 2013(Cth) to protect charities which engage in legal discrimination.
Some charities will want to continue to promote the traditional beliefs about marriage, family and gender. There is no doubt that under Australian law, and under the Bill without the proposed amendments—
the proposed amendments being those that we're talking about here—
they can continue to do so, provided the current requirements are met. The requirements are that the advocacy is relevant to their charitable purpose, is not contrary to public policy, and does not amount to promoting a particular political party or candidate.
Some people are concerned about examples from the US, UK and NZ involving loss of charity status as a result of legislation to allow same sex marriage. Our law—
meaning Australia's law—
regarding discrimination and advocacy by charities is different to the law in these jurisdictions and so examples from overseas need to be interpreted carefully.
For example, some concern has been raised over the example in NZ of Family First being deregistered as a charity because in the opinion of the Independent Charities Registration Board it "has a purpose to promote its own particular views about marriage and the traditional family that cannot be determined to be for the public benefit in a way previously accepted as charitable".
This should not cause concern for Australian charities because our law on advocacy by charities is different to the law in other jurisdictions including NZ and US. Our law has recently been clarified by the Courts, in legislation and in guidance issued by the Australian Charities and Not-for-profits Commission.
On the basis that advocating for traditional marriage and/or engaging in legal discrimination would not be contrary to public policy, charities will continue to be able to advocate on issues relevant to their charitable purpose.
The point I'm trying to make is that I was curious about this issue. I went and tested the issue with informed views—the views of people responsible for these policies—and they've come back and reassured me, in writing. I'm satisfied. It is a matter that can be shared with the expert panel to give those people who are looking for it—or people who might like to put further hurdles in the way of the passage of same-sex marriage in our country—further reassurance, but I'm confident. I'm personally satisfied. This was an issue that was most curious to me, of all the issues I saw during the campaign. I might add that ACOSS has not come to the parliament seeking clarity. Not-for-profit organisations themselves have not come to the parliament seeking clarity. With those remarks, I seek leave to table this document.
Leave granted.
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (20:24): In response to Senator Smith and some of the points he and others have raised, in fact the Senate select committee did hear from charities, and particularly from lawyers who act for charities who have concerns in this space. I have certainly heard from them since. I regret the fact that when Senator Paterson, for example, offered to reach out and discuss this bill with Senator Smith on a number of occasions, that offer was never taken up, and so we haven't had the chance to talk through some of the representations that have been made to people who have worked to put this bill and this set of amendments together. I do recognise that at least some on the other side have been prepared to have a look at the amendments and consider them, and I welcome that input. I'm disappointed that they haven't seen fit to support them.
These points I was going to raise in the next amendments, on sheet 8330, but they go to the issue that Senator Smith raises about whether or not there is uncertainty about the status of charities. The definition of 'marriage' and the ability of a group to claim the protections of the Sex Discrimination Act because they are a religious body go to the very heart of the interplay between at least three different groups. This is not overseas; this is three different groups here in Australia where we see some history.
The first is the Australian Charities and Not-For-Profits Commission. They have adopted the interpretation that a body, to be a faith based public benevolent institution, must have a main purpose of providing benevolent relief in order to be registered as a PBI and cannot have a religious purpose. That's one group. That's their definition. Then we go to the Queensland anti-discrimination tribunal. They say an organisation like St Vincent de Paul is not established for religious purposes; therefore, it doesn't get any of the protections. So someone who seeks to have the protections as a religious body carrying out charity because of their religious convictions is caught between definitions of what their purpose is.
To compound things even further, in one case the Victorian Court of Appeal decided that it would insert itself into the process to determine what a religious group actually believed. So they started essentially dissecting their interpretation and telling the group what they did or didn't believe, which then leads to whether or not the group or the organisation in this case was held to be religious in nature or not. So an assurance from the taxation commissioner does nothing to address the uncertainty that arises because of the interactions between various authorities in Australia. These amendments are very straightforward amendments which seek to provide certainty about what a religious body is so that bodies know—particularly where they're established as religious bodies that conduct charitable activities—that they can have the assurance that they won't have these divergent and different interpretations by authorities.
Whilst I welcome the letter from the taxation commissioner, I note that in the United States one of the calls from one of the judges in the Supreme Court was that they in fact needed to have that kind of clarity from their taxation commissioner. It's great that we have got that. It doesn't address the underlying problem that we have a number of authorities who can make decisions that will impact on the status of these bodies. That's why these amendments are very sensible. There is no detriment to anyone arguing the case for same-sex marriage, but it provides certainty to groups who for decades in Australia have provided probably the bulk of welfare and charitable services to our community. They deserve the certainty that these amendments provide.
Senator PATERSON (Victoria) (20:28): I just want to make one further observation about charities in this debate. It follows on from Senator Smith's comments. I understand why he's been reassured by the letter from the ACNC and the letter from the ATO, but I want to explain why I'm not reassured by them. The reason is that in the Charities Act 2013 there is a tension between two clauses that are very close together in the act. One is section 11(a) and one is section 12, and I will quote from them. Section 11(a) of the Charities Act says a charity is permitted to engage in 'promoting or opposing a change to any matter established by law, policy or practice'. That may give you reassurance that a charity could campaign for a change in the law or campaign for something that's contrary to the law. However, the very next section of the act, section 12, imports that common-law definition I was talking about before: a charity could be disqualified for 'engaging in, or promoting, activities that are unlawful or contrary to public policy'.
So there is an unresolved tension in the Charities Act 2013. On the one hand it says you can campaign for change. On the other hand it says you can lose your charitable status because you do something which is contrary to public policy. If the law changes to make same-sex marriage legal—as it will very shortly—then activity that is contrary to the new law may cause a charity to be disqualified from its legal status. Although I appreciate Senator Smith's view that these issues should be deferred to the Ruddock committee, deferring them to the Ruddock committee won't be adequate if in the meantime a charity is inadvertently disqualified from its eligibility for tax status and other protections because of something in the Charities Act. The Charities Act says charities cannot do things that are contrary to public policy. Public policy will be that same-sex marriage is legal. Therefore, a charity that continues to say same-sex marriage should not be the law may be in defiance of the Charities Act. That's why amendments to this bill are necessary. This amendment would not be in here if it weren't necessary. I genuinely believe this is an uncontroversial amendment. All it is doing is making sure that nothing unintended happens as a result of Senator Smith's bill. I know it is not his intention, nor the intention of any senator supporting his bill, for a charity to lose its status. But that may be an unintended consequence of this bill if these amendments do not pass.
Senator ABETZ (Tasmania) (20:30): Can I quickly correct Senator Smith. He indicated there was a government exposure draft. I think the bill to which he refers never went to cabinet, never went to the backbench committee for approval and never went to the party room for approval. Was it an exposure draft? Yes. Did it have the imprimatur of the government? Absolutely not. Let's get that clear. That is why one suspects it had a number of defects, including failing to deal with the issue of charities.
I come back to the point that if these are baseless fears of no consequence whatsoever—yet we are accused of putting, I think the wording was, 'a further hurdle' in the way of same-sex marriage—and if there had not been any opposition, this amendment could have been waved through on the voices and we would already be discussing the next tranche of amendments. So why is it that people around this chamber are digging in to ensure that this amendment, which, according to them, is worthless, will be of no value because charities are already protected? Why spend all this time digging in so desperately to ensure that this amendment does not get carried? Again, I ask the representatives of the Australian Labor Party and the Australian Greens: do you believe that with a change in the definition of 'marriage' all charities that are religiously based or, indeed, have a view in relation to what the definition of 'marriage' ought to be should continue to receive public funding, support and, for example, the right to foster our children and provide a whole range of services? Sadly, the deathly silence, the refusal, the folded arms and the looking away all indicate to me that these alleged baseless fears are things that they are actually hoping will occur. If they're baseless fears of no consequence whatsoever, I would have thought they would have waved this amendment through on the voices and we could have moved on immediately. But this digging in—not wanting this amendment—highlights the problem and the very real need for this amendment.
Can I just remind Senator Smith that paragraph 3.140 of the committee report he refers to outlines the concerns of a Mr Mark Fowler, especially on the situation in relation to the common law and, as Senators Fawcett and Paterson have so eloquently described to us, the situation in relation to the various state laws and the matters that Senator Paterson referred to. Assurances are good. So I say to the Australian Greens and the Australian Labor Party: why not give the assurance now that, should anything of the nature that has been suggested occur, you will assist in ensuring the passage of emergency legislation through the parliament to overturn any such decision that would prevent these very valuable charities from being able to do their work and from obtaining public funding?
Senator IAN MACDONALD (Queensland) (20:35): I thank Senator Smith for answering the questions I actually put to Senator Wong and whoever happens to be running this for the Greens political party. I appreciate Senator Smith's explanation—although, having been convinced of that, I then heard Senator Fawcett explain that it doesn't cover the wide field. So I repeat my previous call: maybe there's no upside but if there's no downside why wouldn't we support this? If it's overreach, so be it; we can get this done and then move on to other amendments.
As I recall, Senator Wong was sort of saying that those who were promoting this amendment were ignoring or going contrary to the process set up by the Prime Minister—chaired, as I understand, by former colleague Mr Ruddock—which is looking into protections for charities. Should I take it from Senator Wong's comment that, if that inquiry comes up with a series of recommendations, the Labor Party will support those? My take on it is that Senator Wong is accusing those proposing these amendments of going against the Prime Minister's process. I assume she's saying, 'Let the process happen and that'll be the way it is.' Apparently Senator Wong speaks for everyone in the Labor Party, even though they are supposed to have a conscience vote and an individual view—and I know that's not the case in this particular bill, but, anyhow, that's another question. So will the Labor Party, for whom Senator Wong apparently speaks in this conscience vote, now commit to whatever Mr Ruddock's report comes up with?
I guess the Labor Party may say, 'We can't commit to something we haven't seen.' That didn't worry Mr Shorten a few years ago when he said, 'I haven't seen what the Prime Minister said, but I support it entirely.' I know the Labor Party has a bit of form on that. But, from Senator Wong's comment, I assume she's saying, 'We trust this committee that Mr Ruddock's leading, we trust the resolutions that will come up, and as we deal with these issues in another bill, or in another way, the Labor Party will support them.' Perhaps that could be confirmed. Whilst I do take an independent view on this, I appreciate what Senator Smith said in answering the question I asked of Senator Wong and the Greens political party. But Senator Fawcett has made what I think is a very telling response to that—that it doesn't cover the breadth and extent of possibilities in this. So if Senator Smith is able to comment on that, that might help the process.
Senator ABETZ (Tasmania) (20:39): I'll give the Australian Labor Party and the Greens a third opportunity to respond to the issue of whether charities holding firm to the existing definition of marriage will not be prejudiced in any way, shape or form by a change in the definition of marriage. Where do the Australian Labor Party and the Greens political party stand on that issue? And if, after being asked three times, they remain silent three times I think the Australian people, sadly, have the answer. The fear that they describe as baseless is, in fact, very well founded, because the Australian Labor Party and the Greens are not willing to commit themselves to the defence of charities that hold firm to the current definition of marriage.
Senator RICE (Victoria) (20:40): Senator Abetz, I refer you to Senator Smith's previous speech.
Senator ABETZ (Tasmania) (20:40): Well, we now have it on the record that Senator Smith speaks for and on behalf of the Australian Greens. That has a very interesting connotation to it. I'll be interested in seeing the further blossoming of that relationship but—
Senator McKim: You're just grumpy because you're losing.
The ACTING DEPUTY PRESIDENT ( Senator Gallacher ): Order! Senator Abetz, you have the call.
Senator ABETZ: If Senator McKim wants to interject in that arrogant style, he might actually take his proper seat in the chamber. There is nothing grumpy about seeking to defend the wonderful work of hundreds of thousands of Australian volunteers who dedicate themselves to the service of Australian charities, helping the poor, the needy and the oppressed in our community. To say that the defence of that somehow makes you grumpy—I would wear that as a badge of honour for and on behalf of all those people that do dedicate themselves and their money to these very vital charities.
Sadly, we have had no answer from the Australian Labor Party or the Australian Greens in relation to what they believe the policy position ought be in relation to the rights of these charities to retain their beliefs and still be the beneficiaries of public support to enable them to engage in the vast public good in which they involve themselves.
Senator FIERRAVANTI-WELLS (New South Wales—Minister for International Development and the Pacific) (20:42): I have a question if I may. Having heard the assurances this evening, what happens if your assurances are wrong and the charity loses its funding? What compensation and appeal mechanisms are then going to be in place for a charity, noting that it could be an aged-care facility, a hospital or any other institution, that has got ongoing services and those services are cut as a consequence? Can somebody explain that to me.
Senator SMITH (Western Australia—Deputy Government Whip in the Senate) (20:43): I've previously explained that I am satisfied by all of the inquiries I have made.
Senator FIERRAVANTI-WELLS (New South Wales—Minister for International Development and the Pacific) (20:43): Senator Smith, you might be satisfied but there are legal ramifications that flow. I'm sorry, but a simple assurance from you is not sufficient for a number of these charities. I've been involved in the not-for-profit sector for many, many years and I really do believe that those charities are entitled to a firm legal position. With all due respect, Senator Smith, I take your assurance and I take it on face value but I really think they deserve a bit more than a simple assurance.
Senator SMITH (Western Australia—Deputy Government Whip in the Senate) (20:44): You might have been absent, but there were assurances given by the Australian Taxation Office commissioner himself and the acting Australian charities commissioner himself.
Senator ABETZ (Tasmania) (20:44): In recent times we had the assurance of the Solicitor-General that certain people's constitutional situation was absolutely guaranteed! And it was bowled out by the High Court, seven-nil. We have the opportunity in this chamber to put this matter beyond doubt by simply supporting this amendment, which seeks to underpin and support the work of those hundreds of thousands—I dare say I should correct myself: millions—of Australians who work for these charities, doing untold good right throughout the community. They deserve protection, they're entitled to it and the silence of Labor and the Greens speaks for itself.
Sure, Senator Smith has provided us with a letter from a so-called expert, but in my life I've seen so many assurances and letters from experts—lawyers, accountants et cetera—who have all proven to be wrong. We can put this beyond doubt tonight by simply voting for this amendment. No longer having to rely on a letter here or an opinion there, we can simply put it beyond any doubt by supporting this amendment.
The only criticism I've heard is that it's unnecessary, or that it's baseless. What can be the harm in actually putting forward this amendment? If, as asserted, the fears are baseless, there will be an unused clause or clauses in the bill that will never see the light of day because charities will continue to be protected as we've been promised. There's no downside.
Senator PATERSON (Victoria) (20:46): I just want to make what I'm sure now will be my final observation on this issue, which is of course that the Australian Taxation Office and the Australian Charities and Not-For-Profits Commission are members of the executive. It is their role to apply the law as they understand it. It is not their role to decide what the law is; that is the role of the courts. There have been many times in the past where the ATO, for example, have incorrectly applied the law and the courts have subsequently corrected them and directed them to apply the law in a different way. So an assurance from a current commissioner of the ATO that this is how he intends to apply the law while he is at the ATO only speaks to his time at the ATO and does not speak to how a court will choose to interpret this law.
It's our job as parliamentarians, as Senator Abetz says, to put these matters beyond doubt. If we want to have more assurance than just the word of the current ATO commissioner, if we want to be absolutely sure that these charities will continue to enjoy after this bill passes the same legal protections that they do today, there's only one path to do that and that is by voting for these amendments.
The CHAIR: The question is that amendments (1) to (5) on sheet 8329, moved by Senator Paterson, be agreed to.
The committee divided. [20:52]
(The Chair—Senator Lines)
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (20:55): by leave—I, and also on behalf of Senator Paterson, move amendments on sheet 8330 together:
(1) Clause 1, page 1 (lines 6 and 7), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment (Definition and Protection of Freedoms) Act 2017".
(2) Schedule 1, page 17 (before line 4), before item 63, insert:
62C Subsection 37(1 ) ( d)
Repeal the paragraph, substitute:
(d) any other act or practice of a body established for religious purposes, being an act or practice that is consistent with the doctrines, tenets or beliefs of that religion or is because of the religious susceptibilities of adherents of that religion.
62D At the end of section 37
Add:
(3) Despite any law (including any provision of this Act and any law of a State or Territory) a body established for religious purposes includes, and shall be deemed to have always included, without limitation, a body:
(a) that is a:
(i) not for profit entity; or
(ii) charity under the Charities Act 2013, including any public benevolent institution (regardless of whether any of the charitable purposes of the entity is advancing religion);
(b) where that body:
(i) is established by or under the direction, control or administration of a body established for religious purposes; or
(ii) is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; or
(iii) is a body to which subsection (4) applies.
(4) A charity that has a charitable purpose pursuant to the Charities Act 2013 that is not advancing religion may be a body established for religious purposes through advancing that other charitable purpose:
(a) where that other charitable purpose is an effectuation of, conducive to or incidental or ancillary to, and in furtherance or in aid of, the advancement of its religious purpose; or
(b) where the advancement of religion is an effectuation of, conducive to, or incidental or ancillary to, and in furtherance or in aid of, that other charitable purpose.
(5) Subsection (4) does not limit the circumstances in which a charity that has a charitable purpose that is not advancing religion may be a body established for religious purposes through advancing that other charitable purpose.
62E Subsections 38(1), (2) and (3)
Omit "in order to avoid injury to", substitute "because of".
62F After section 38
Insert:
38A Determining when an act or practice is consistent etc.
(1) For the purposes of paragraph 37(1) (d), an act or practice is consistent with the doctrines, tenets or beliefs of that religion if the body established for religious purposes holds a belief that it is consistent with the doctrines, tenets or beliefs of that religion and that belief is not fictitious, capricious or an artifice.
(2) For the purposes of paragraph 37(1) (d), an act or practice is because of the religious susceptibilities of adherents of that religion if the body established for religious purposes holds a belief that it is because of the religious susceptibilities of adherents of that religion and that belief is not fictitious, capricious or an artifice.
(3) For the purposes of section 38, an act or omission is because of the religious susceptibilities of adherents of that religion or creed if the institution holds a belief that the act or omission is because of the religious susceptibilities of adherents of that religion and that belief is not fictitious, capricious or an artifice.
(4) A body or institution holds a doctrine, tenet or belief if it has adopted that doctrine, tenet or belief. Without limiting the foregoing, a body or institution may adopt a doctrine, tenet or belief by:
(a) including the doctrine, tenet or belief in its governing documents, organising principles, statement of beliefs or statement of values; or
(b) adopting principles, beliefs or values of another body or institution which include the doctrine, tenet or belief; or
(c) adopting principles, beliefs or values from a document or source which include the doctrine, tenet or belief; or
(d) acting consistently with that doctrine, tenet or belief.
38B Sections 37, 38 and 38A are intended to " cover the field "
(1) Despite any law, but subject to subsection (3), it is the intention of Parliament that, in order to recognise the protections, rights, privileges and entitlements of a body or institution to which sections 37, 38 or 38A apply, and to ensure that such protections, rights, privileges and entitlements are recognised equally and without discrimination in all States and Territories, sections 37, 38 and 38A operate:
(a) to cover the field in relation to those protections, rights, privileges and entitlements; and
(b) to provide a complete, exhaustive and exclusive statement of the law relating to those protections, rights, privileges and entitlements; and
(c) to exclude and limit the operation of the laws of the States and Territories in relation to those protections, rights, privileges and entitlements.
(2) For the avoidance of doubt, and without limiting subsection (1), but subject to subsection (3), despite any law, if a protection, right, privilege or entitlement granted, or a limitation provided for under section 37, 38 or 38A of this Act, is inconsistent with a protection, right, privilege or entitlement granted, or a limitation provided for, under a law of a State or Territory, this law shall prevail, and the State or Territory law shall, to the extent of the inconsistency, be invalid.
(3) The protections, rights, privileges and entitlements of a body or institution to which sections 37, 38 or 38A apply are in addition to the protections, rights, privileges and entitlements provided under any law of the Commonwealth or a State or Territory. Nothing in subsections (1) or (2) shall exclude or limit the operation of the laws of the Commonwealth or a State or a Territory that are more protective of those protections, rights, privileges and entitlements.
(3) Schedule 1, item 63, page 17 (line 27), omit "conforms to", substitute "is consistent with".
(4) Schedule 1, item 63, page 17 (line 28), omit "necessary to avoid injury to", substitute "because of".
As I move this group of amendments, I'd like to note that this is the last of the group of amendments that Senator Paterson and I have put forward, which is in quite stark contrast to the diatribe that's been directed against those of us who have voted 'no' in this. We were told that we were going to be filibustering, seeking to delay and frustrate the will of the Australian people. We have actually put forward considered amendments. We've been very disciplined in our contributions, seeking not to take every 15-minute block available but to make the case and then to answer questions or correct facts. Can I just say to senators present and to the Australian public that that, generally speaking, is characteristic—there are always exceptions—of how people in the community who support the traditional definition of marriage went about the campaign.
I struggle to think of a time when you saw people who support the traditional definition of marriage barricading events and seeking to prevent 'yes' campaigners from meeting or advocating or speaking. I struggle to think of times when 'no' campaigners interrupted meetings and had advocates jumping on stages with banners. I struggle to think of a time when on university campuses 'no' campaigners were overturning tables and threatening violence. So throughout this whole campaign right through to tonight, when we've been dealing with these amendments, I think the Australian public can look and see that those who support traditional marriage are far from the bigoted people who seek to visit violence on others or to unnecessarily delay and frustrate this process, that these amendments have been put forward in good faith because of genuine concerns that have been raised by members of the Australian community who gave evidence to the Senate select committee and who have been actively engaged in the 'no' campaign.
In good faith I'll move this last set of amendments, and I'll seek to have people actually listen to the debate. I'm disappointed, as are other members, that those opposite aren't able to exercise their conscience on this debate.
Senator Jacinta Collins: That is not true.
Senator FAWCETT: On these amendments?
Senator Jacinta Collins: That is not true.
Honourable senators interjecting—
Senator FAWCETT: My intent there was not to raise a howl of protest but to note the fact we have tried in good faith to put forward amendments, but there have been many times—exemplified by the objections that have been raised, which have indicated that some people have clearly not read the amendments, understood their intent or listened to the explanations—that the votes have continued to retain the starting position. If in this chamber of all places we can't actually engage in sensible dialogue, listen to each other and have reasoned arguments then I do fear for the future of where this might go.
The last amendment addresses an issue that we touched on before, religious organisations. Much of the protection that people have talked about in this debate that goes to religious organisations rides on the fact that they are recognised as a religious body. We have seen that there have been interventions, for example, by courts, tribunals or other bodies that have made determinations about whether or not people are in fact a religious body.
If I go to the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, which was proclaimed by the General Assembly of the UN in resolution 36/55, the declaration provides that 'the right to freedom of thought, conscience, religion and belief' includes the freedom to 'establish and maintain appropriate charitable or humanitarian institutions'. The ability of those institutions to control the appointment of their staff and leaders is important if they're going to maintain their faith based character.
What we've seen in Australia is the action of courts—I mentioned in the debate on the last group of amendments the actions of the Court of Appeal in Victoria in the Cobaw case, where they inserted themselves between the body and the members of the body to decide what those members did or didn't believe. It's not the role of courts to determine what a religious body does or doesn't believe so they can determine whether or not they have the protections that being a recognised religious body would bring.
Also, despite what the UN says under international law about the right of religious bodies to create charitable bodies, we've seen the national charities commission intervene. In Queensland, the Anti-Discrimination Tribunal said that the St Vincent de Paul Society was not a religious body. I think that defies common sense. Anyone who knows Vinnies knows that they do the charitable work they do because of their faith. They reach out with compassion to help people. But that decision of a tribunal removes the status of being a religious body and therefore removes all the protections that people have been saying in this place will flow to a religious body. So the purpose of these amendments is not some abstract link to a foreign law; it's linked to very real examples here—what happened with the courts in Cobaw and what happened to St Vincent de Paul in Queensland, where they were determined to not be a religious body, which then directly impacts on their ability to employ people and ensure, for example, that the president of Vinnies is a Catholic, which maintains consistency with their faith and their approach. It directly goes to the protections that people have talked about here for those who wish to hold their religious view of marriage.
So these amendments shouldn't be controversial. They relate to real cases in Australian law. They protect the charities and provide certainty to charities around whether or not they will be regarded as religious bodies. As I say, these are drawn from the international guidance that says religious bodies can establish an organisation for charitable purposes but they are religious by nature. We're just seeking the certainty for those bodies in law. I commend these amendments to the Senate.
Senator WONG (South Australia—Leader of the Opposition in the Senate) (21:03): Senator Fawcett speaks of sensible dialogue. I do acknowledge he and I have very different views on these issues, but I think he is someone with whom we can have a sensible dialogue. I serve on the Parliamentary Joint Committee on Intelligence and Security with him, and in that context we often have different views, but we can have a sensible dialogue. I don't think that some of the senators who have risen in support of your amendments have followed your example, Senator Fawcett, and I think perhaps the recent hour of debate might demonstrate that. But I agree with you that these are matters that should be considered carefully, and we have. Labor senators have, including those who have a view different from mine and that of many in the Labor Party on the issue of marriage equality. I think they've formed a view. They have not sought a conscience vote on the amendments, and attempts to denigrate them for that, I think, are unworthy.
The reality is that those who are moving these amendments not only have not convinced the Labor Party but also have not convinced their own colleagues. These are amendments that essentially are drawn from Senator Paterson's legislation, which he didn't even introduce and which was criticised—or not supported—by the Attorney-General and the Prime Minister. So you did not gain the support of your own Prime Minister or your own Attorney-General for the legislative provisions that you are now seeking to amend this bill with—and that's fine. I mean, people make their own judgement about whether they're right or wrong. But I make that point because some of this debate has proceeded as if this is an entirely partisan issue. The reality is that it hasn't been a partisan issue. People of good conscience from different parties have considered these amendments, have considered Senator Paterson's bill and have come to a view that we don't believe these amendments should be supported or that the bill should proceed.
Very early in this debate—I can't remember when we started the committee stage now—I made the point that there is a distinction between the absolute right to hold a belief and a limited right to act in relation to that belief. There is a legislative and philosophical task that we as legislators and the Senate as a legislating chamber need to consider, which is: how do we, in the secular state, deal with, protect and respect the right of people to hold certain religious beliefs, and how does that interact with the principle of equality before the law and the law applying universally to Australians? This morning I said it is a big thing to make a decision as a parliament that the law will be applied differently to different Australians because they have different religious beliefs. There have been occasions on which we have done so, which I referenced this morning in relation to the Sex Discrimination Act, and I think other senators have referenced them in the debate. Extending those exemptions—that is, extending the differential treatment of particular Australians before the law because of their belief—is complex. It is a substantial task, and I put to you, Senator Fawcett, that it is not the task that should be undertaken in the context of this legislation.
The second amendment, for example—I think amendment (1) just relates to the name change, which has been dealt with previously—seeks to amend the Sex Discrimination Act to substantially change long-established protections against discrimination. Currently there is permission for religious bodies and educational institutions to discriminate under section 37(1)(d). Amendment (2) would greatly extend that carve-out by removing the requirement to avoid injury to the religious susceptibilities of adherents of that religion. The words 'avoid injury' would be replaced with a far more nebulous term, 'because of'—a term that provides no requirement for the avoidance of harm. The amendment would also greatly expand the range of organisations that can take an advantage of the carve-out from antidiscrimination law in section 37 of the SDA by radically widening the definition of a body established for a religious purpose. Finally, the amendment seeks to effectively ensure the roll-back of federal antidiscrimination laws proposed in these amendments by covering the field—that is, to exclude the operation of all state and territory antidiscrimination laws in the same area.
Whatever your views about the merit of it—and I appreciate that Senator Fawcett has different views—this is a set of amendments that go to substantially widening the differential application of the universal law under the Sex Discrimination Act. That is what it does. If we are to do that, that is something that should be considered very carefully, and we on this side of the chamber do not believe it is appropriate to consider this in the context of the legislation to give effect to marriage equality and to give effect to the vote of the Australian people to lessen, not increase, discrimination. Our position is that the primary purpose of these amendments, for the reasons I've outlined, is to substantially roll back long-established federal protections from discrimination contained in the Sex Discrimination Act. We do not believe this is consistent with the result of the postal survey, but, more importantly, we do not think this legislation and these amendments are the way in which we should deal with what is, frankly, a controversial and complex issue.
Senator PATERSON (Victoria) (21:09): I rise in support of the final amendment moved by Senator Fawcett and I, and I want to reassure senators that the ambition and scope of this amendment is much narrower than I think Senator Wong believes it is. Effectively, what this amendment seeks to do is to make sure that an organisation that may currently be classed as a charity established for welfare purposes, but which is also religious in nature, is able to access all the existing protections that a religious organisation does. It doesn't seek to include any new protections. It doesn't seek to widen any existing protections. It just seeks to ensure an organisation that is substantially religious in nature can access the protections that other religious organisations already have.
To put a particularly fine point on that, I refer again to the explanatory memorandum to my bill and quote from it, because I think this is an extraordinary case. Some of you—in fact, I'm going to go out on a limb and say I suspect all of you—are familiar with the work of the charity called St Vincent de Paul Society. The EM states that the Queensland Anti-Discrimination Tribunal held that St Vincent de Paul Society is not a body established for religious purposes under the Queensland Anti-Discrimination Act 1991, with the result being that 'St Vincent de Paul could not require that a president of a local conference be a Catholic'. Does any senator seriously think that St Vincent de Paul Society is not a religious organisation? I think they have a fairly good hint in their name that they are a religious organisation: St Vincent. It is a fairly good advertisement that it is a religious organisation that was established for a religious purpose. It was established by good people, who happened to be Catholic, who want to do good works in the state of Queensland. Yet an Anti-Discrimination Tribunal decision in Queensland has found it is not a religious body. That decision means that they are not eligible for the protections that do exist for religious bodies. I think that is absolutely absurd. This is clearly a religious body, established for religious purposes, that also does good work in the welfare space.
We hope that they are able to continue doing that work and we want to make sure they are able to continue doing that work. This amendment seeks to establish that clearly religious organisations, like St Vincent de Paul Society, are classed as such and access the existing legal benefits and protections of being so.
Senator RICE (Victoria) (21:12): It is very clear from these proposed amendments that what is being attempted goes far beyond what needs to be done to protect religious freedoms or sensibilities in the Marriage Act. It is very clear. You only have to look at what is being amended. The act that's being amended is the Sex Discrimination Act. When we had our Senate inquiry earlier this year we talked about the interaction between marriage and, potentially, our antidiscrimination laws. The agreement we reached—and it was reflected in the consensus report—was that, in order to ensure that religious freedoms were protected, and how that balanced up with our antidiscrimination laws, we probably did need to look at our antidiscrimination laws. We needed to look at how well religious freedom was protected. My recollection, my understanding, was that we agreed by consensus that we weren't going to try to do that through this marriage legislation. Indeed, that's the process that has been continued. Even with the Prime Minister's appointment of Mr Ruddock to the religious panel looking at religious freedoms there is an acceptance that we don't need to do a wholesale review of the Sex Discrimination Act through the legislation. In fact, not only do we not need to do it but it is wrong to try to do it through the Marriage Act. It doesn't need to be done and it is wrong to try to do it through the Marriage Act.
I think one of the benefits of the debate we have been going through is that there is a greater awareness of the potential conflict between protecting people's ability to manifest their religion, and how that conflicts with other people's rights. I have said this a number of times this evening already. How that needs to be resolved is to be in the context of our antidiscrimination laws. The Greens are on record as saying: 'Bring on that debate in our community. Bring on that discussion.' We have a hotchpotch of antidiscrimination laws at the moment. We need to have a coherent, comprehensive set of antidiscrimination laws, of human rights laws. We need to have a bill of rights, or a charter of rights. That's where all of these potential changes should be debated through and potentially adopted. It does not need to be done through the Marriage Act.
The Greens believe that the existing religious provisions in the Sex Discrimination Act actually go too far, but we, in our contributions to this debate and in the amendments that I'm going to be moving later on, haven't attempted to unwind those provisions because we know that doing that would mean we would not end up with a marriage bill that is likely to pass through this parliament. This whole process has been about trying to put together legislation that has got the best chance of passing through this parliament.
Some of the existing provisions in the Sex Discrimination Act that we think go too far include, for example, that church-owned businesses are able to discriminate. We say, 'No, we don't think that's appropriate; a church-owned business that's operating a commercial business shouldn't be able to discriminate.' There are provisions that say religious schools are able to discriminate about who they employ as teachers and are able to discriminate based on a teacher's sexuality or gender identity. In fact, after this legislation goes through it is going to be quite legal, if a teacher at a religious school wants to get married and they are in a gender diverse relationship, for them to be sacked. That is what our existing Sex Discrimination Act will allow. We think that goes too far, but that's the existing law.
For the purposes of getting equal marriage through this parliament and of removing discrimination in marriage, we've said, 'No, we won't try to go there; we won't try to resolve those issues here.' But that's what this amendment is trying to do. It is really trying to rewrite our antidiscrimination laws by stealth to vastly expand what the meaning of a religious organisation is and, as a consequence, vastly expand the amount of discrimination that would be potentially inflicted upon lesbian, gay, bisexual, transgender or intersex Australians.
We are on the cusp of getting marriage equality through this parliament. We are on the cusp of doing that because there have been a lot of people, from all sides of this parliament, who have worked together. We had some commentary earlier that I was supporting the contribution of Senator Smith in this debate. Absolutely I'm supporting the contribution of Senator Smith in this debate, and I've been supporting the contributions of Senator Pratt and Senator Wong as well, because we recognise that, to get legislation for marriage equality and to remove discrimination in marriage, we need to be working together. That's what the bill, as it stands, aims to do. With amendments like these bolted onto it, it would just increase discrimination and absolutely would not have the support of the senators in this place, of the majority of the members of the House of Representatives, or, indeed, of the majority of Australians.
Senator CANAVAN (Queensland—Minister for Resources and Northern Australia) (21:18): I won't take up too much of the Senate's time as many of the substantive issues have been dealt with in other contributions to my own and to other amendments.
I was listening to Senator Wong, and I got from Senator Wong that what has happened in the Labor Party on a bunch of these amendments is that they have independently come to the same position—I think they have 25 senators, 25 independent minds, at the moment in their group—on these amendments. Now, it is a possibility that has occurred, but I think we should bring some quantitative rigour to the likelihood of such a circumstance that 25 independently minded human beings might come to that position.
To do that we can use a very simple Bernoulli distribution—I have been informed about it by my good colleague Senator McKenzie—using binomial probability. What is the chance of that happening? Out there in the general population, 60 per cent of people voted yes and 40 per cent voted no. So the likely situation is that around 40 per cent of the Australian population probably supports the amendments that are being moved here—
Senator Hinch: Thirty-eight!
Senator CANAVAN: I'm happy to put 38 or 62 into the calculator for you, Senator Hinch, through you, Chair. We can work that out because we have 25 different independent trials, apparently, with a probability of roughly 0.62, according to Senator Hinch. You get an outcome of 0.0000234. That is the probability that 25 independently minded Labor senators have all come to the same conclusion—0.0000234! That's one possibility. It's a pretty slim possibility. That's one potential outcome, by using the well-established Bernoulli distribution. I should say that that conclusion assumes that all of the trials—in this case, all of the decisions—are independent of each other; they're not dependent on each other.
If that assumption fails, there's the other outcome: maybe the decision over there was dependent on other people's decisions. Maybe all 25 weren't independent trials. Then it would be a much more likely outcome. I think that what we can really see over there tonight is that there have not been 25 independent decisions made by the Labor caucus. They have come together as a lot, they have been dependent on each other and, unfortunately, once again, whether it's a minority view or not, the Labor Party do not allow the freedom of expression of individual senators into this place. In my view that is an unfortunate narrowing of our democratic debate.
The debate tonight, I think, would have been a lot richer for contributions from some Labor senators who I know have certain conscientious viewpoints on many of these issues. It would have been a richer debate to hear from that rich tradition within the Labor Party that would otherwise normally stand up on these issues. I actually don't believe that there's been this random event with a probability of well under point zero zero something per cent where they've all independently come to the same decision. I think what's actually happened is that the Labor Party has enforced its traditional discipline on its members and, unfortunately, deprived the Australian parliament and the Australian people of the viewpoints of individual senators in their party room on these very important and weighty issues.
Senator SMITH (Western Australia—Deputy Government Whip in the Senate) (21:21): I would like to put my position on the record just very briefly. Before I do, to continue from Senator Fawcett's opening remarks, I want to acknowledge the good faith in which all members of this Senate have come forward in the debate, particularly my coalition Senate colleagues in prosecuting their case and their view in regard to Senator Fawcett's and Senator Paterson's amendments. I think this highlights that there are areas in these very sensitive and, at times, difficult issues that are obviously very contested. It's, therefore, appropriate that parliament deal with these issues and that parliament deal with them in a way that is respectful and considered. We shouldn't actually be surprised that issues around the interpretation of international laws, the interpretation of their import in our domestic lawmaking and the interpretation of where best to balance rights are contested issues. I know that Senator Paterson, Senator Fawcett and I are governed by different sorts of principles in this issue, though I'm sure we share very, very similar approaches to those principles generally. But this is a difficult and sensitive issue. I just wanted to reflect on that.
Of course, it is important for parliament to debate these things. Sometimes debates can be tough; sometimes they can be time-consuming. But the task for us in this particular circumstance, in this particular context, is to challenge ideas as best we can—to put ideas forward and try to seek the support of each individual senator one by one.
But in regard to this particular amendment: in all frankness, I can't come to any other conclusion but the conclusion that this does actually dramatically alter and unwind discrimination laws in Australia. I say that because it actually lowers the threshold for discrimination in our country in a number of ways. It does that by amending the religious exemptions, by stating that an act or practice is consistent with religious exemption grounds where:
… that belief is not fictitious, capricious or an artifice.
It lowers the threshold for discrimination by amending the test of conformity with religious belief to being consistent with religious belief. It lowers the threshold for discrimination by amending the test of 'in order to avoid injury to religious susceptibilities' to 'because of religious susceptibilities' and allows a religious doctrine, tenet or belief to be adopted by a religious body, including in its statements, documents or acts. So, when I look at the detail of what's proposed, I come to the conclusion that this is actually lowering the threshold for discrimination and, therefore, allowing or widening discrimination.
My final contribution is a brief one. Just let me put on the record my understanding of the Queensland situation as it was shared to us earlier. My understanding of the Queensland situation—bear with me—is that a body established for religious purposes is the test in the federal law, which differs from the test in the St Vincent de Paul decision. Walsh v St Vincent de Paul Society Queensland (No. 2) of 2008 was a case about whether a body was a religious body in relation to section 109(1)(c) of the Queensland act relating to 'the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice'. This is a narrower test than the body established for religious purposes in section 37(1)(d) of the Sex Discrimination Act 1984 of the Commonwealth, which has been replicated in the bill before the Senate chamber now.
In deciding whether St Vincent de Paul was a religious body, the tribunal looked at the constitution documents and decided that it is not a religious body. I might just briefly read from the statement,
It is a Society of lay faithful, closely associated with the Catholic Church, and one of its objectives (perhaps its primary objective) is a spiritual one, involving members bearing witness to Christ by helping others on a personal basis and in doing so endeavouring to bring grace to those they help and earn grace themselves for their common salvation. That is not enough, in my opinion—
said the arbitrator—
to make the Society a religious body within the meaning of the exemption contained in sub-sections 109 (a), (b) or (c).
77. Likewise, and despite the particulars which have been provided of the functions of the president relied upon, and the religious observances and practices said to be relevant, it does not seem to me that the fact that a conference president performs some functions (such as leading prayers) and has some duties (among a long list of duties), some with spiritual aspects and some with practical aspects, means that what happens at conference meetings, or what the president does in the discharge of his or her duties, involves "religious observance or practice".
Section 47B of the bill that's before the Senate chamber now and section 37(1)(d) of the SDA allow any body established for religious purposes to discriminate in the provision of goods or services in accordance with their doctrine. Section 37 also protects the ability of bodies established for religious purposes to hire, fire and discipline employees in accordance with the doctrines, tenets and beliefs of their religion or to avoid injury to the susceptibilities of adherents to that religion. I just put that on the public record just as an alternate view and descriptor to that Queensland case that was cited.
In conclusion, I will not be supporting this amendment.
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (21:28): Briefly: I thank Senator Smith for that. I do note that he's actually made our case in that it was the opinion of the arbitrator that he didn't believe that St Vincent de Paul was a body for religious purposes. I take you back again to the UN, which said a body for religious purposes can establish a body for charitable purposes, which is what St Vincent de Paul had done. The concept of the president of the chapter being a Catholic, to put it in this context, would be like saying we should say to the Labor Party, for example, that they should allow someone who was a Liberal Democrat to be the Leader of the Opposition here because they can actually fulfil the practical functions of running the chamber. The fact that they disagree completely in terms of the policy and the approach and on being the voice for the Labor Party here means it would never happen. Of course it would never happen. That's the same argument that the president of an organisation like St Vincent de Paul is supposed to speak to the character of the organisation, what their values are, what they stand for. And the decision of that arbitrator says, 'Well, no, as long as they can sign the paperwork and put a rubber stamp on something, they'll do.' There are not too many other areas in life where we would accept that. The point is this amendment looks to give these charitable bodies the certainty they need, because what we will see in evidence here is that the vagaries of an individual's assessment means that their status is not certain.
The CHAIR: The question is that amendments (1) to (4) on sheet 8330, moved by Senator Fawcett, be agreed to.
The committee divided. [21:34]
(The Chair—Senator Lines)
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (21:38): I, and also on behalf of Senator Canavan, move government amendment (1) on sheet 8333 revised:
(1) Page 3 (after line 5), after clause 3, insert:
4 Protection of religious freedom
Nothing in this Act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching.
Senator Bernardi: On a point of order. Senator Hanson was on her feet for at least two minutes before you asked Senator Brandis and you made the concession to him. Senator Brandis then pulled the stunt as 'I'm Leader of the Government.' This is not a government bill; it is a private senator's bill. You should do exactly the right thing and ask Senator Hanson to move her amendment.
The TEMPORARY CHAIR ( Senator Leyonhjelm ): That was exactly what I intended to do, but then I was advised by the Clerk and also by the Leader of the Opposition in the Senate that the Leader of the Government has precedence, so I gave the call to the Leader of the Government.
Senator BRANDIS: The first of the two amendments standing in my name and in the name of Senator Canavan is an amendment designed to fulfil the government's commitment at the time of the marriage postal survey to ensure that there be strong protections for religious freedom in any private senator's bill that the government facilitated through the parliament. It provides, very simply:
Nothing in this Act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching.
Let me reiterate what I've said many times in the course of public discussion of this issue. In my view, there is absolutely no inconsistency between marriage equality and religious freedom—none whatsoever. By passing the bill introduced by Senator Smith, as I feel sure this Senate will either tonight or tomorrow, we are making no inroads on religious freedom whatever. I have deliberately refrained from participating in the debate on or, indeed, from voting on the various amendments moved by Senator Fawcett and Senator Paterson not because in my view many of them are not valuable amendments—not all of them but many of them I agree with—but rather because, as I have always said during the course of this debate, the issue before the Australian people during the marriage law postal survey and, therefore, the issue before this parliament today is a very simple proposition: should the law be changed to allow same-sex couples to marry?
The Australian people, as we know, overwhelmingly affirmed that the answer to that question was 'yes' and this chamber, I believe, and the other place, I expect, will be obedient to their wishes and overwhelmingly affirm that the law should be changed to allow same-sex couples to marry. I was of the view, and it remains my position, that that very simple proposition should not be complicated by a broader debate on the appropriate reach of antidiscrimination law. That is a matter for another day.
The Prime Minister has already announced that there will be a review headed by the much respected former Attorney-General, the Hon. Philip Ruddock, to examine the extent and adequacy of religious protections in Australian law. It may be that the Ruddock review identifies that there are inadequacies in religious protection in Australian law, and, if it does, then next year the parliament will deal with them. But, with all due respect to my friends and colleagues Senator Fawcett and Senator Paterson and to those of my colleagues from the government benches who supported their amendments, I think next year, following the Ruddock review, is the time to deal with those issues and today—in the Senate this week and in the House of Representatives next week—is the time to deal with the very straightforward question: should the law be changed to allow same-sex couples to marry?
That having been said, I also believe that, during the debate over the same-sex marriage survey, there were a number of very misleading statements made from the 'no' case that the effect of enacting marriage equality would be to impinge upon and to entrench upon religious freedom. In my view, those statements were wrong. As I said at the start of this contribution, in my view there is no inconsistency, whatsoever, between marriage equality and religious freedom. That is so for a very simple reason: what we are dealing with today, what Senator Smith's bill is dealing with, is the secular definition of marriage—the definition of marriage contained in the Marriage Act.
It has always been the case that we have recognised that there is a secular definition of marriage but also recognised that different churches and different religious faiths may have their own definition of marriage, which is narrower, and that those two propositions stand completely consistent together. Let me give you an example in the case of the church of which I am a member, the Catholic Church. The Catholic Church has always taught that divorce is not recognised by Catholic doctrine, so the Catholic Church teaches that in its schools and the Catholic Church will not conduct the ceremony of marriage according to its rites of liturgy for a couple of whom one or other is divorced. That is inconsistent with the secular definition of marriage in the Marriage Act, because it is narrower, but nobody has ever suggested that there is any inhibition on the Catholic Church teaching, according to its doctrines and tenets and teaching, its own understanding of the meaning of marriage according to canon law. Nobody has suggested that. Equally, when Senator Smith's bill is made law, nobody could possibly suggest that there would be any inhibition on the Catholic Church, any other Christian church or any other religious faith's teaching that, according to its doctrines, tenets and theological convictions, a marriage is between a man and a woman. That is entirely a matter for the church. That reflects the church's definition and the church's understanding of marriage. That is not what we are here concerned with. What we are here concerned with is the secular definition of marriage. So there isn't, as I say, any inconsistency, whatsoever.
You may think that the amendment that I move is strictly unnecessary. But I am concerned that there are many people—I know people who have engaged with me in this discussion—who have been misled by some of the wilder and more extravagant claims made by advocates of the 'no' point of view that by enacting Senator Smith's bill, in some way, there will be an imposition on religious freedom. So I move this amendment to put it absolutely beyond doubt that the effect of this bill will be to make no imposition, no limitation, no inhibition upon religious freedom.
The words I have adopted to describe the right which is protected are words taken straight from article 18.1 of the International Covenant on Civil and Political Rights, which protects the right of a person to manifest his or her religion or belief in worship, observance, practice and teaching. The amendment does not transport into Australian law or enact article 18.1. I am, as colleagues will know, not a supporter of a bill of rights, and this is not the germ of a bill of rights. What it does is adopt some well-understood language of description from an international human rights instrument to describe those aspects of religious freedom that ought to be protected. And, by the qualifying words 'in a lawful manner', the amendment puts it beyond doubt that it doesn't derogate from any other Australian law, because that which is protected is the exercise of a right of worship, observance, practice and teaching only if it is consistent with Australian law, federal and state—only if it takes place in a lawful manner.
So to those who say that we are opening the door to, for instance, Sharia law: if there are any aspects of Sharia law that are not lawful according to Australian law then this provision would ensure that they remain unlawful according to Australian law. Nor does this amendment in any way derogate from federal or state antidiscrimination laws. I want to emphasise that point, because I've heard dishonest claims made during the course of the day that in some way this amendment might have that effect. But because of the qualifying words 'in a lawful manner', it cannot. The words are words of reassurance. To those who may have been caused to have misgivings during the course of the debate, that in some way Senator Smith's bill derogates from religious freedom or somehow limits it: it does not. And if anyone has any doubt about that, the inclusion in the bill of these words will serve to remove that doubt entirely.
Now, I doubt that there would be anybody in this chamber quite so dishonest as to suggest that the inclusion of this amendment was meant to in some way limit or derogate from the effect of Senator Smith's bill. Plainly it does not—unless you accept that religious freedom cannot sit side by side with acceptance of marriage equality. They can sit side by side; they do sit side by side. They are entirely consistent with one another, and this amendment puts that proposition completely beyond doubt.
Senator PATERSON (Victoria) (21:53): I'm going to speak very briefly in support of the amendments that Senator Brandis and Senator Canavan are bringing. I think Senator Brandis has put it very well, and there's not much that needs to be added to what he said. This is in a sense just a symbolic act to reassure anyone who may be concerned that there will be any adverse impacts on religious liberty from this bill that they need not worry, that there is no adverse impact. As Senator Brandis put it, this amendment is to put beyond doubt that there are no negative impacts. I hope it will pass. I urge to senators to support it. I have to say, given the way Senator Brandis has described it and how modest it is, it would be a troubling thing if this did not pass, given how uncontroversial it is and how modest it is in its scope. It might give rise to some concerns if something even this reasonable were voted down, so I certainly hope it is not.
Senator WONG (South Australia—Leader of the Opposition in the Senate) (21:54): Senator Brandis has moved amendment (1) on sheet 8333, which, as we on this side of the chamber understand it, appears to reflect one aspect of the ICCPR into Australian law. We think it is an unusual and novel proposal. We believe it has uncertain legal effect, some have asserted to us potentially far-reaching. On the one hand, Senator Brandis and others have suggested this is of minor or cosmetic or inconsequential effect. One wonders then on what basis there is a reason to put it into legislation.
Senator Paterson: Or oppose it!
Senator WONG: I intend to oppose it. We intend to oppose it. I'm just explaining why, Senator Paterson. As has been pointed out by a number of legal advisers, and also referenced in some of the documentation provided by the Human Rights Law Centre, there are some questions about the extent to which there may be unintended adverse consequences in relation to this amendment. I would also make the point that we find it somewhat odd that one would cherrypick the ICCPR in this way. For example, article 18.1 is singled out but not article 18.3, which states:
Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
Obviously, 18.3 constrains to some extent the rights articulated in 18.1 and reflected in the amendment that Senator Brandis has spoken to. I also note that article 26 of the ICCPR commences as follows:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.
I pick up those two aspects of the covenant because it seems to us on this side that there's obviously, certainly in this chamber and to some extent in the community, an interest in discussing the place of religious belief and the way in which the law might safeguard better the right to have such a belief—the right to hold beliefs—and a discussion about the extent to which that belief might affect the application of Australian law. However, as I have said on a number of occasions today, that is a reasonably complex and at times controversial discussion, and it is certainly a discussion that goes quite directly to the way in which religion is dealt with in a secular state and to the extent to which absolute belief, and limited protection under the law for that, need to be balanced.
The Labor Party's view reflects to some extent Senator Brandis's introduction to this amendment, which is that this is a matter that rightly should go through the process that Prime Minister Turnbull has established. We believe that an amendment of this sort would better be considered in the context of that process. For that reason we will be opposing this.
Senator CANAVAN (Queensland—Minister for Resources and Northern Australia) (21:58): It's a great privilege and honour to move these amendments together with Senator Brandis. I do that recognising that Senator Brandis and I have differing opinions on the substantive changes we're debating today. Once again, as I have in other contributions to this debate, I specifically single out my great respect for Senator Brandis's views on this issue. While we have a difference of opinion, I think he always puts his views in a respectful and eloquent way. I am very happy and honoured to join with him to move this amendment because it is a way, I think, that we can make the substantive change to the Marriage Act following the survey results in a way that recognises as many views as possible in our country, rather than just the view of the majority alone.
I think we should seek in this place, where possible, to make changes which unite the country, not divide it, because I fundamentally believe in the former Prime Minister Howard's statement that what unites us as Australians is much greater than what divides us. For most of tonight we have focused on issues that do perhaps divide us, and normally in this place that's where the focus and concentration rightfully come into view. But I think that, when you look at the contributions to this debate, we are actually all of one mind in this chamber that the Marriage Act should change as a result of the survey. So that's something that unites us. I would think and hope that as a country we are all united.
There should be nothing that limits or derogates from the rights of people to worship, practise, observe or teach their religious views, as long as it's done in a lawful manner. I agree with Senator Brandis that there is the potential for us to change the Marriage Act in a way which does not contravene those fundamental human rights. Notwithstanding my own view that I would prefer not to change the definition in the Marriage Act, I accept that there is a way that can be done that does not limit fundamental human rights. However, where I may depart slightly from Senator Brandis is that I have concerns that there are other ways we can change the Marriage Act which do in fact limit people's fundamental human rights, including their right to freely practise their religious views. So what this particular change does is simply ensure that we make the changes in a way that expands the rights that Australians hold and can live under, rather than trade one right for another, which I'm concerned may arise if we do not even support something as simple and clear as this provision.
I note that Senator Wong in this debate made a fine contribution earlier, mentioning that there's a distinction between someone's right to worship or hold a religious view and their right to act on that view. There is certainly a distinction there between someone holding a view and perhaps even expressing a view and acting on it in real life. I accept that there are legitimate limits on how someone should act within their religious views where they may restrict other human rights or public policy goals. That's why in this provision the protection, as Senator Brandis pointed out, is triggered or arises only where people are acting in a lawful manner. That condition is not limited in any way. That condition includes laws under state jurisdictions as well. That condition captures changes to law which might otherwise occur in the future, not just the current law. All it says is that, as long as someone is not breaking the law, they're free to practise, free to worship and free to observe and teach their own religious views.
I think that is something that is fundamental in our Western civilisation and fundamental to the rights and privileges that we all enjoy in a modern democracy. Indeed, I would argue that the consequence and legacy of our end point here in a modern democracy actually had its origins in modern times, often, in disputes and battles by people to establish religious freedoms centuries ago. Many other freedoms also originated from those battles and freedoms, some of which I'm sure people would argue are more important or have more consequence in people's daily lives today. But I think the actual seed of the broader freedoms we have today often arose out of these issues to ensure people have this fundamental right and freedom, which largely did not exist a few hundred years ago across the world.
I note that Senator Wong mentioned that this doesn't capture 18.3 of the ICCPR, which goes to limiting someone's religious beliefs, but again I return to the fact that in fact it does reflect that provision. This is not, as Senator Brandis says, an attempt to enshrine article 18 of the ICCPR in legislation, but it does capture that concept that Senator Wong mentioned in 18.3 because it says that only acts which done are in a lawful manner are protected by this provision, and that gives effect to 18.3 of the ICCPR.
Senator Wong mentioned that she has some advice or concerns that there may be adverse consequences from this particular provision, although they weren't fleshed out in any detailed way in her contribution. I can only imagine, though, that the adverse consequences she may be highlighting or trying to point to would be that someone is not limited to freely expressing their religious views in a lawful manner. I can't see how there would be any other consequences from this provision. It's one sentence. The only thing the provision does is say that, as long as someone is acting consistent with all laws, including the laws in this particular amendment or the revised marriage law, they are otherwise free to express, practise, observer, worship and teach their religion. What other adverse consequences could there be but that Senator Wong or others that are providing this advice are considering that there should in fact be further restrictions on people's ability or rights to practice, observe and teach their religious views that go beyond existing laws which are already covered in this provision? I don't know what those additional concerns or consequences might be, but that does give rise to some of the legitimate and genuine concerns we have on this side that there are potentially some that may seek to restrict people's religious rights and freedoms in a way that's not explicitly outlined in this legislation at the moment. All this does is provide a shield and protection against that particular outcome happening.
I note that also in Senator Wong's contribution, as well as other broader ones in this debate, there has been the view that these issues are broader and raise more comprehensive issues and concerns and therefore need to be considered in a different process, on a different track, including the Ruddock review, established by the government last week. I find it extremely unlikely that the result of the Ruddock review, or any other consideration of these matters, would see us come back and revise the Marriage Act itself. I don't think that will be the focus of the Ruddock inquiry or other inquiries. There are broader issues that go to freedoms—and broader than just freedom of religion—but I don't think we'll be coming back and revising the Marriage Act itself; I think this is our only opportunity to get this right in the immediate time frame. I, therefore, believe that something as uncontroversial and as affirming as this is about our fundamental freedoms and rights in this country should be put in this bill to make sure that we change the Marriage Act in a way which is rights-enhancing and which increases the number of protections that people have, rather than risk making one change that some see as enhancing rights while limiting and taking away other rights that we have lived under and enjoyed in Australia for centuries.
Senator RICE (Victoria) (22:08): This amendment by Senator Brandis is purportedly, as I understand it, to underline that achieving marriage equality through the legislation and religious freedoms are compatible. I support the intent of that because I do believe that this marriage equality legislation is compatible with religious protections and there are adequate religious protections in this bill. I've had many people from different religious faiths saying that this bill absolutely adequately protects their religious freedoms. I would have given this amendment more consideration if it hadn't cherrypicked the International Covenant on Civil and Political Rights, because what it is attempting to do is to make an absolute right of something that in the ICCPR is only a limited right.
In the ICCPR, yes, everyone shall have the right to freedom of thought, conscience and religion—that is, freedom from discrimination because of your religion. But then, as others have pointed out, item 3 of article 18 says that in manifesting your religion there are limitations. That is not included in this amendment. The fact that the amendment says 'in a lawful manner' does not address that absence, because the key conflicts in our antidiscrimination law and the area where you get the most complex issues that need to be addressed occur where two things are lawful but conflict. When two things are lawful but one of them discriminates against the other is when you need to have a complex, comprehensive, cohesive set of antidiscrimination laws to assess them. You cannot achieve that balance just by inserting one statement in the Marriage Act. It's not necessary and particularly inappropriate to put it there, given that it's including only one part of the ICCPR and not both.
This debate has underlined again and again and again that, yes, we are changing marriage legislation to remove discriminations in marriage and doing it in a way that protects people's religious freedoms in relation to marriage, but it has highlighted that we in Australia need to do more work on how religious freedoms relate to people's other human rights. As I've said before, the Greens believe very strongly that we should have a charter of rights to address how all of these rights balance up against each other and how they should be assessed against each other. It is within that context that we should be considering these sorts of initiatives—these sorts of recommendations—and how they are reflected in our overall human rights law, not trying to cherrypick one bit of international human rights law and inserting it out of context in this marriage legislation.
Senator McKIM (Tasmania) (22:12): I'm usually really pleased to talk about rights. After all, the bill that's before the committee at the moment is at its heart about the right to marry for some people who are currently denied that right under Australian law. But now is not the time to be debating the right of religion or the right to freedom of religion. The Australian people were not asked in the survey to vote on whether we should enshrine religious freedoms in law. They were simply asked to vote on—and voted overwhelmingly in favour of—the proposition that we should enact marriage equality in Australia. And that's what we should be doing here: enacting marriage equality in Australia.
The Australian Greens are very happy to entertain a conversation about the right to religion and to religious beliefs and religious practices, and we're very happy to entertain a discussion about enshrining those rights into statute. But those rights, like most rights, need to be balanced with other rights, and that's why we need to discuss how to balance those rights and a range of other rights in a discussion about a proper charter of rights, because Australia remains the only Western liberal democracy that doesn't have a charter of rights either in our Constitution or on our statute books. That conversation needs to be had carefully and in a considered way, because balancing often competing rights is very difficult and can lead to significant unintended consequences if it's done hastily.
These amendments are a hasty attempt. We know that these amendments arose because of a deal that was done in the LNP to get Senator Paterson to withdraw the marriage equality legislation that he had drafted. The cost of that was this amendment and the others that are being proposed by Senator Brandis today. So we need a broad, careful and considered approach to how we balance rights—
The TEMPORARY CHAIR ( Senator Leyonhjelm ): Senator Paterson, a point of order?
Senator Paterson: A point of order: I have been misrepresented by Senator McKim. The reason my bill was not introduced had nothing to do with the amendments that Senator Brandis is moving, although I support them.
The TEMPORARY CHAIR: Senator Paterson, that's a debating point.
Senator McKIM: I turn now to the amendment before us. As both Senator Wong and Senator Rice have pointed out, it cherrypicks the ICCPR, and in fact cherrypicks article 18 of the covenant, because it seeks to enshrine in this legislation article 18.1—that's contained within the amendment we're currently debating—but does so while leaving out article 18.3. That's been read into the Hansard already. The omission of 18.3 of the ICCPR turns a limited right to religion under international law into an absolute right in Australian law, and that is an incredibly dangerous and ill-considered thing for us to do.
It's important that we understand that article 18.3 allows for antidiscrimination laws, both here and in other countries around the world, to override claims to discriminate on the basis of belief. Without article 18.3, people will argue that their right to discriminate on the basis of belief is an absolute right. We haven't got 18.3 before us here and it's not proposed that it be inserted into the legislation. If article 18 is to be implemented, it should be implemented in its entirety. Better still, we shouldn't be seeking to enshrine any freedom of religion until we've had a comprehensive, robust and carefully considered discussion about a charter of rights in this country. Enacting only the first sentence of article 18.1 leaves out the limitations on freedom of religion that are found in the remainder of 18.1 and in article 18.3 and, as I said, transforms what is a limited right into an absolute right.
In conclusion, I want to note that there is a trend around the world in Western democracies—and this is the case in Europe as well as the United States—where conservative Christian pro bono law groups are pursuing aggressive litigation strategies to justify discrimination against LGBTIQ people. Including article 18.1 of the ICCPR in Australian law will make freedom of religion justiciable and fuel legal conflict in our country. Last year we saw the Australian Christian Lobby establish the pro bono Human Rights Law Alliance. I'll leave aside my observations about the hypocrisy of that name. But they established that alliance precisely for the purpose of litigating against LGBTIQ people, and the alliance is already running a number of cases on behalf of conservative Christians, including challenges to antidiscrimination law on the basis of the religious freedom provision in the Tasmanian Constitution, the constitution of my home state. Senator Canavan described this amendment as 'a shield'. It's not a shield; it's a sword. It's a sword that will be wielded by the conservative right against LGBTIQ people in this country, and that's why it should be stridently opposed.
Senator CANAVAN (Queensland—Minister for Resources and Northern Australia) (22:19): After that contribution, I welcome Senator Brandis to the conservative Right, apparently! I think Senator McKim has shown the emptiness of his contribution here. He's actually confirmed for us the very points we are making by a snide remark that, because the Christian lobby has established a legal fund, that, somehow, in and of itself is a breach of human rights. If I'd been advising you, Senator McKim, I would have hidden my lamp behind a bushel a little bit during this debate, because I think you have shown us a bit too much there. The exact reason that this is being moved and debated is that some in this parliament, particularly the Australian Greens, have in the last year or so moved motions referring to those who support traditional marriage as bigots and calling those who potentially have those views from a religious viewpoint bigots. So the prospect that people won't be free to practise their own religious viewpoints, coming from the likes of the Australian Greens, is already confirmed by their own behaviour leading up to and during this debate this evening.
There were some more substantive points, particularly those made by Senator Rice, that I'd like to tackle briefly. Senator Rice contradicted herself, because she said at one point that this amendment does not provide any limitation to the freedom of religion and then went on to argue that in fact the limitation that exists in this provision, in a lawful manner, is not sufficient or to a great enough extent. It's either one or the other, Senator Rice. There is a limitation here, clearly. There's a limitation that if the behaviour is in a lawful manner it can be freely expressed as a part of your religious viewpoint and if it's not then it cannot. The second point you made, of more substance, is that there can be two acts that are both lawful, so to speak, that potentially can be in conflict because they may seek to abrogate two independent rights.
I want to make two points about that. The first point is: that is a matter for the courts, for the law, to interpret. While they might, ipso facto, both be lawful acts, obviously when that decision goes to a court of law and they're found to be in conflict then the court will decide which one is in fact consistent with the law and which one is not. Once again, this very simple, clear limitation around acting within the law will be found to provide the adequate limitation to the issue that Senator Rice raised. The other point is that it is very important to note that, while this is not an intention to implement the ICCPR, one thing that I think hasn't come up enough in this debate is that the United Nations Commission on Human Rights has been asked to rule on this issue about whether or not the right to refuse or provide marriage services for homosexual couples is, in fact, a breach of the ICCPR. In the Joslin case, which is the precedent in this place, they made it very clear that, in light of the scope of the right to marry under article 23.2, which is the right of a man and a woman of marriageable age to marry:
… the Committee cannot find that by mere refusal to provide for marriage between homosexual couples, the State party has violated the rights of the authors under articles 16, 17, 23—
and various paragraphs that I won't read out. That is already the finding. So this idea that the religious freedoms in article 18.1 are somehow in conflict with the other changes we're making here tonight is not a provision or a fact in international law as it stands at this juncture.
So that conflict will not arise. This is a very clear, very simple confirmation that we do live in a country where people can freely practise their religion as long as it's done in a lawful manner. It's something that we should all be able to unite behind and then support the broader changes to the Marriage Act in a way that unifies this country, not divides it.
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (22:24): Let me just reply for a moment to a number of the contributions that have been made. Might I start by picking up with an observation—a very wise observation, if I may say so—that came from Senator Canavan during his first contribution. What Senator Canavan reminded us of was that our modern notions of freedom and liberty and, in particular, freedom of speech—if I may expand a little, Senator Canavan, on what you had to say on freedom of the press—and all of the other values around freedom of expression in fact arise from the defence of religious liberty.
If you read deeply the history of the 17th century, you will remember—and I know you, Mr Temporary Chairman Leyonhjelm, as a libertarian are very well versed in these matters—that John Locke's essay on toleration, one of the great defences of human freedom, was a defence of religious tolerance. You will remember that in the 17th century, and before that the 16th century, those who fled from the religious wars in Europe to found a new society in the new world on the east coast of North America fled in defence of religious liberty. You would know that one of the greatest men of the Enlightenment—arguably the greatest man of the Enlightenment—Thomas Jefferson, chose to have inscribed on his tombstone the words, 'Here was buried Thomas Jefferson, author of the Declaration of American Independence and of the Statute of Virginia for religious freedom', because Thomas Jefferson regarded being the author of the Virginia statute for religious freedom as important as having been the author of the declaration of independence, so highly did that great man value religious liberty. So when we're talking about religious liberty, we're not having a narrow discussion. We are talking about the defence of values that are central to our Enlightenment notions of what a liberal democracy is.
Now, let me correct a couple of errors that came from Senator Wong and others who have spoken in this debate. The effect of this amendment is not to transport into Senator Smith's bill any right from the International Covenant on Civil and Political Rights—not at all. That is not what it says and that is not its effect. Its effect is a limiting effect only to make clear that nothing in Senator Smith's bill, were it to be enacted, 'limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching'. That is not a right-conferring provision. It is a limiting provision.
Secondly, it was observed by Senator Rice and others that, somehow, article 18.1 of the ICCPR is being cherrypicked. It is only in the very narrow sense that words of description—that is, 'to manifest his or her religion or belief in worship, observance, practice and teaching'—have been adopted because they are a convenient and well-recognised description of the breadth of that conduct of those behaviours, which are regarded as constituting the expression or manifestation of a religious belief; that's all.
Article 18.1 is, of course, not the only provision of article 18 of the ICCPR which deals with religious freedom. The reason that it was adopted in this amendment, far from cherrypicking, was to do the very opposite: to take the most generic possible description of religious freedom—that description which is the least controversial and easiest to accept and agree with—so as to invite the Senate to subscribe at the lowest threshold of adherence to that value. I ask the question rhetorically: if you don't believe in the right of a person, in a lawful manner, to manifest their religion or belief in worship, observance, practice and teaching, what sort of religious freedom do you believe in, if any at all?
Senator Abetz: None!
Senator BRANDIS: That's right, Senator Abetz: if you cannot subscribe to that proposition that people should be able, in a lawful manner, to manifest their religion or belief in worship, observance, practice and teaching then what does religious freedom mean at all? It means nothing.
We've had a very important debate in the Senate today and a lot of us, including me, have expressed very powerful sentiments about the importance of treating gay people with equality. But the importance of respecting the equal right of all to manifest their religious beliefs is just as important. This debate we are having now is just as important as the debate that we had earlier in the day, and yesterday, on the substance of Senator Smith's bill. And by your vote on this amendment you declare your hand. As you vote on this amendment, so shall you be known. If you decide that you will vote against the proposition that a person should not, in a lawful manner, be able to manifest their religion or belief in worship, observance, practice or teaching, so be it. If you want to declare that to be your position, if you want to set your face against the most modest and generic and least challenging description of the essential elements of religious liberty, then live with it.
There are some on the other side of the chamber who subscribe to no religious belief at all. There are some who do subscribe to a religious belief. If you decide to vote against this amendment, know and understand that you will, by your vote, be declaring yourself to be somebody who does not accept the right of a person, in a lawful manner, to manifest their religion or belief in worship, observance, practice and teaching. That will be your position. It's not about the ICCPR or the transportation into Australian law of any of its provisions; it is about whether you accept even the lowest threshold description of religious liberty or whether you do not.
The CHAIR: The question is that amendment (1) on sheet 8333 revised, as moved by Senator Brandis and Senator Canavan, be agreed to.
The committee divided. [22:38]
(The Chair—Senator Lines)
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (22:41): I move government amendment (2) on sheet 8333 revised standing in my name and the name of Senator Canavan:
(2) Schedule 1, item 20, page 10 (line 11) to page 11 (line 10), omit the item, substitute:
20 Section 47
Repeal the section, substitute:
47 Ministers of religion and marriage celebrants may refuse to solemnise marriages
Ministers of religion
(1) A minister of religionmay refuse to solemnise a marriage despite anything in this Part.
(2) In particular, nothing in this Part prevents a minister of religion from:
(a) making it a condition of solemnising a marriage that:
(i) notice of the intended marriage is given to the minister earlier than this Act requires; or
(ii) additional requirements to those provided by this Act are complied with; and
(b) refusing to solemnise the marriage if the condition is not observed.
(3) A minister of religion may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:
(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister's religious body or religious organisation;
(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;
(c) the minister's religious beliefs do not allow the minister to solemnise the marriage.
Marriage celebrants
(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.
Grounds for refusal not limited by this section
(5) This section does not limit the grounds on which a minister of religion or a marriage celebrant may refuse to solemnise a marriage.
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.
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—about a quarter of people or more, according to the latest census in this country—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.
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.
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.
Senator PRATT (Western Australia) (22:47): 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.
Senator CANAVAN (Queensland—Minister for Resources and Northern Australia) (22:48): 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.
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.
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.
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.
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—supported by the Labor Party and the Greens—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.
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—Emma Alberici on Lateline last night had this misconception—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.
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—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.
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—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.
Senator PATERSON (Victoria) (22:55): 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.
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.
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.
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (22:57): Can I just adopt what Senator Paterson has said and observe, in closing the debate, how ironic it is that several minutes ago the Australian Labor Party voted against amendment (1), which was an amendment to protect religious liberty. They propose now to vote against amendment (2), on the grounds of religious liberty.
The CHAIR: The question is that the amendment (2) on sheet 8333 revised, moved by Senator Brandis, be agreed to.
Progress reported.
The PRESIDENT: Pursuant to order, the Senate is now adjourned.
Senate adjourned at 23:05
The committee divided. [23:02]
(The Chair—Senator Lines)
DOCUMENTS
Tabling
The following documents were tabled by the Clerk pursuant to statute:
[Legislative instruments are identified by a Federal Register of Legislation (FRL) number. An explanatory statement is tabled with an instrument unless otherwise indicated by an asterisk.]
Australian Research Council Act 2001—
Approval of ARC Discovery Early Career Researcher Award Scheme for funding commencing in 2018—Determination No. 167.
Approval of ARC Discovery Indigenous Scheme for funding commencing in 2018—Determination No. 168.
Approval of ARC Learned Academies Special Projects Scheme for funding commencing in 2017—Determination No. 169.
Civil Aviation Act 1988—Civil Aviation Safety Regulations 1998—Exemption – RNP 1 and RNP 2 alternate means of compliance – foreign registered aircraft—CASA EX158/17 [F2017L01523].
Commissioner of Taxation—Public Ruling—Taxation Determination TD 2017/20.
Federal Circuit Court of Australia Act 1999—Federal Circuit Court (Commonwealth Tenancy Disputes) Amendment Instrument 2017 [F2017L01521].
Food Standards Australia New Zealand Act 1991—Australia New Zealand Food Standards Code — Schedule 20 — Maximum residue limits Variation Instrument No. APVMA 12, 2017 [F2017L01522].
Higher Education Support Act 2003—Higher Education Support (Careers Australia Education Institute Pty Ltd (In Liquidation)) VET Provider Approval Revocation 2017 [F2017L01524].
Navigation Act 2012—Marine Orders (Navigation Act) Administrative Amendment Order 2017—AMSA MO 2017/5 [F2017L01336]—Replacement explanatory statement.
Public Governance, Performance and Accountability Act 2013—Commonwealth has acquired shares in WSA Co Limited—22 November 2017.
Tabling
The following documents were tabled pursuant to standing order 61(1)(b):
[Documents presented since the last sitting of the Senate, pursuant to standing order 166, were authorised for publication on the dates indicated]
Documents to be presented by the President
Vacancies in the representation of Tasmania—References to Court of Disputed Returns—Letters from—
President of the Senate to the Principal Registrar, High Court of Australia (Mr Phelan), dated 15 November 2017 [2] [copies].
Principal Registrar, High Court of Australia (Mr Phelan) to the President of the Senate, dated 17 November 2017, and copies of court notices [2].
Auditor-General's reports for 2017-18
No. 16—Performance audit—Administration of the National Broadband Network Satellite Support Scheme: nbn co limited; Department of Communications and the Arts; Department of Finance.
No. 17—Assurance review—Department of Agriculture and Water Resources’ assessment of New South Wales’ protection and use of environmental water under the National Partnership Agreement on Implementing Water Reform in the Murray-Darling Basin: Department of Agriculture and Water Resources.
Government documents
Australian Human Rights Commission—Reports—
No. 116—CR and CS v Commonwealth of Australia (Department of Immigration and Border Protection).
No. 117—MB v Commonwealth of Australia (Department of Immigration and Border Protection).
No. 118—Nine Vietnamese men in immigration detention v Commonwealth of Australia (Department of Immigration and Border Protection).
No. 119—Ms OR on behalf of Mr OS, Miss OP and Master OQ v Commonwealth of Australia (Department of Immigration and Border Protection).
Telecommunications (Interception and Access) Act 1979—Commonwealth Ombudsman’s inspection of the Australian Federal Police—Access to journalist’s telecommunications data without a journalist information warrant, dated October 2017.
Responses to Senate resolutions
Port of Hobart—Cruise ship fuel—Resolution agreed to on 18 October 2017—Letter to the President of the Senate from the Minister for Infrastructure and Transport (Mr Chester), dated 22 November 2017.
COMMITTEES
Report
The following reports and documents were presented and authorised for publication on the dates indicated pursuant to standing order 38(7)(a):
Committee report presented out of sitting for consideration today
Economics References Committee—Non-conforming building products: Protecting Australians from the threat of asbestos—Interim report.