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Tuesday, 28 November 2017
Page: 8959


Senator FAWCETT (South AustraliaDeputy 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.