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Tuesday, 28 November 2017
Page: 9041


Senator PATERSON (Victoria) (17:02): by leave—I, and at the request of Senator Fawcett, move amendments (1) to (10) on sheet 8327 together:

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".

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.

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).

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. Schedule

1, page 5 (after line 12), after item 4, insert: 4ASubsection 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.

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 A New Tax System (Goods and Services Tax) Act 1999; and

(b) a non-entity joint venture within the meaning of section 195-1 of the A New 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 beliefif 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.

Schedule 1, page 10 (after line 6), after item 17, insert:

17A At the end of section 43

Add "(subject to Part VAA)".

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 authorityin 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 authorityin 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.

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 198 6

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.

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 that I have moved in my name and Senator Fawcett's 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.