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Tuesday, 28 November 2017
Page: 9131


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.