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Tuesday, 28 November 2017
Page: 8968


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?