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Tuesday, 28 November 2017
Page: 9068


Senator JACINTA COLLINS (Victoria) (17:48): I won't be supporting this set of amendments on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, but I do want to take this opportunity to deal with a number of definitional matters that have been raised that are in this general area. Hopefully the Senate will allow me that opportunity. The first of those is in respect to non-denominational religious groups and whether the bill as it's currently struck provides adequately for those religious groups. The current bill exempts ministers of religion and religious marriage celebrants from being required to solemnise same-sex marriages.

A religious marriage celebrant must be a minister of religion, and 'minister of religion' is defined widely in the Marriage Act already in a broad sense where it indicates that:

minister of religion means:

(a) a person recognised by a religious body or a religious organisation as having authority to solemnise marriages in accordance with the rites or customs of the body or organisation; or

(b) in relation to a religious body or a religious organisation in respect of which paragraph (a) is not applicable, a person nominated by:

(i) the head, or the governing authority, in a State or Territory, of that body or organisation; or

(ii) such other person or authority acting on behalf of that body or organisation as is prescribed;

to be an authorised celebrant for the purposes of this Act.

My advice is that this encompasses non-denominational religion groups. The problems and concerns that have been raised should be addressed by the current broad definition in the Marriage Act. If that's not adequately the case, I would hope that this can be something that we can see further resolved in the Ruddock review. But my understanding is that the broad definition within the existing Marriage Act should manage that problem.

The second problem that's been raised with me is in respect of religious facilities. This is the concern that chapels or churches in less traditional environments might suffer from not being adequately provided for in this bill. The current bill exempts bodies established for religious purposes from being required to provide facilities for the purpose of a marriage. My advice is that schools or other bodies can be organisations established for religious purposes, if that purpose is in their constitution. Where it is not clear the extent to which this is the case, organisations could include such purpose in their constitution if they so choose.

This interpretation or advice is not consistent with some suggestions about the Queensland Anti-Discrimination Commission tribunal decision in relation to St Vincent de Paul. The St Vincent de Paul case, I think, is particularly pertinent to our discussions now because, whilst I and Senator Abetz have concerns about some of what has occurred in overseas jurisdictions, this is perhaps one of the very few matters that have come to a decision that may relate to issues that we need to resolve between the Commonwealth and the state tandem antidiscrimination frameworks. It is a very complex area. It is probably an area that's going to test the minds of those in the Ruddock review process. But, as I have said, in relation to religious facilities my understanding is that the federal provisions provide broader scope for organisations to be regarded as organisations established for religious purposes. Indeed, I would be quite concerned if at the federal level such a narrow definition were ever adopted. I don't believe that there are the examples in the Australian jurisdiction that demonstrate that such a narrow definition has or could be adopted. As I said, my advice in relation to religious facilities is that a broad definition should allow the exemptions that are in this bill to ensure that, for example, a chapel in a school does not end up becoming the victim of, let's say, activism to make a point in relation to same-sex marriage.

We canvassed this issue in the second reading discussion. I think that there's quite a significant level of support for ensuring that the extremes of this debate don't continue and that we continue in a philosophy of that Australian ethos I mentioned, which is 'live and let live'. It's one of the things I am proud about being an Australian, that we do have that heritage, that we haven't gone down the same path as the United Kingdom or Canada or the US. Indeed, even, say, the Canadian cases, where they do have a bill of rights and protection for religious freedom, haven't actually delivered the protection needed in some of the cases that other senators have been citing. This is why the process that the Ruddock review will undertake is going to be quite fraught, because we don't necessarily want to follow overseas jurisdictions to get the outcome that we want to be able to apply here.

I think most of us value the community work and dedication that has been provided by organisations such as St Vincent de Paul and organisations that have been delivering education for decades—sorry, hundreds of years—in Australia. It is critical that they be able to continue to operate under the tenets of their faith.

I said in my second-reading contribution—not reported quite accurately, I see, in The Sydney Morning Herald

Senator Abetz: What a surprise!

Senator JACINTA COLLINS: Thank you, Senator Abetz—that, in the context of the Prime Minister deciding to kick this issue down the road, we may have been able to resolve some of the issues with a bit more clarity. I think it's obvious from the earlier debate that there isn't now the numerical support for that. But I hope, very dearly, that the Ruddock review process will ensure that we don't deteriorate in Australia down to a place where an organisation like St Vincent de Paul is regarded as not being a body established for religious purposes. If there's one message I have for that review panel coming out of this discussion, I think, that would be the main one.

In relation to Archbishop Porteous, I noted Senator Paterson took less comfort than others in relation to that matter. My only reflection on that issue would be, unfortunately, that the attempt by Senator Paterson, Senator Fawcett and others to provide provisions in these amendments would equally be legally contestable. So whilst the Porteous case hasn't established any principles because it was withdrawn, I'm not so confident that even necessarily these provisions won't continue legal uncertainty, or indeed be challenged in a way which further complicates our already complex antidiscrimination framework.

I know that in the past there have been attempts to simplify our antidiscrimination framework to deal with its tandem nature and the differences between the state and the federal jurisdictions. It is a very complex and challenging area, but I hope, as a consequence of this debate and the Ruddock review, that the next time we look at a consolidation of an antidiscrimination framework, it's on the basis that we have strong general bipartisan support for religious freedom.