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Tuesday, 28 November 2017
Page: 8970


Senator FAWCETT (South AustraliaDeputy 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.