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Tuesday, 28 November 2017
Page: 9125


Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (21:38): I, and also on behalf of Senator Canavan, move government amendment (1) on sheet 8333 revised:

(1) Page 3 (after line 5), after clause 3, insert:

4 Protection of religious freedom

Nothing in this Act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching.

Senator Bernardi: On a point of order. Senator Hanson was on her feet for at least two minutes before you asked Senator Brandis and you made the concession to him. Senator Brandis then pulled the stunt as 'I'm Leader of the Government.' This is not a government bill; it is a private senator's bill. You should do exactly the right thing and ask Senator Hanson to move her amendment.

The TEMPORARY CHAIR ( Senator Leyonhjelm ): That was exactly what I intended to do, but then I was advised by the Clerk and also by the Leader of the Opposition in the Senate that the Leader of the Government has precedence, so I gave the call to the Leader of the Government.

Senator BRANDIS: The first of the two amendments standing in my name and in the name of Senator Canavan is an amendment designed to fulfil the government's commitment at the time of the marriage postal survey to ensure that there be strong protections for religious freedom in any private senator's bill that the government facilitated through the parliament. It provides, very simply:

Nothing in this Act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching.

Let me reiterate what I've said many times in the course of public discussion of this issue. In my view, there is absolutely no inconsistency between marriage equality and religious freedom—none whatsoever. By passing the bill introduced by Senator Smith, as I feel sure this Senate will either tonight or tomorrow, we are making no inroads on religious freedom whatever. I have deliberately refrained from participating in the debate on or, indeed, from voting on the various amendments moved by Senator Fawcett and Senator Paterson not because in my view many of them are not valuable amendments—not all of them but many of them I agree with—but rather because, as I have always said during the course of this debate, the issue before the Australian people during the marriage law postal survey and, therefore, the issue before this parliament today is a very simple proposition: should the law be changed to allow same-sex couples to marry?

The Australian people, as we know, overwhelmingly affirmed that the answer to that question was 'yes' and this chamber, I believe, and the other place, I expect, will be obedient to their wishes and overwhelmingly affirm that the law should be changed to allow same-sex couples to marry. I was of the view, and it remains my position, that that very simple proposition should not be complicated by a broader debate on the appropriate reach of antidiscrimination law. That is a matter for another day.

The Prime Minister has already announced that there will be a review headed by the much respected former Attorney-General, the Hon. Philip Ruddock, to examine the extent and adequacy of religious protections in Australian law. It may be that the Ruddock review identifies that there are inadequacies in religious protection in Australian law, and, if it does, then next year the parliament will deal with them. But, with all due respect to my friends and colleagues Senator Fawcett and Senator Paterson and to those of my colleagues from the government benches who supported their amendments, I think next year, following the Ruddock review, is the time to deal with those issues and today—in the Senate this week and in the House of Representatives next week—is the time to deal with the very straightforward question: should the law be changed to allow same-sex couples to marry?

That having been said, I also believe that, during the debate over the same-sex marriage survey, there were a number of very misleading statements made from the 'no' case that the effect of enacting marriage equality would be to impinge upon and to entrench upon religious freedom. In my view, those statements were wrong. As I said at the start of this contribution, in my view there is no inconsistency, whatsoever, between marriage equality and religious freedom. That is so for a very simple reason: what we are dealing with today, what Senator Smith's bill is dealing with, is the secular definition of marriage—the definition of marriage contained in the Marriage Act.

It has always been the case that we have recognised that there is a secular definition of marriage but also recognised that different churches and different religious faiths may have their own definition of marriage, which is narrower, and that those two propositions stand completely consistent together. Let me give you an example in the case of the church of which I am a member, the Catholic Church. The Catholic Church has always taught that divorce is not recognised by Catholic doctrine, so the Catholic Church teaches that in its schools and the Catholic Church will not conduct the ceremony of marriage according to its rites of liturgy for a couple of whom one or other is divorced. That is inconsistent with the secular definition of marriage in the Marriage Act, because it is narrower, but nobody has ever suggested that there is any inhibition on the Catholic Church teaching, according to its doctrines and tenets and teaching, its own understanding of the meaning of marriage according to canon law. Nobody has suggested that. Equally, when Senator Smith's bill is made law, nobody could possibly suggest that there would be any inhibition on the Catholic Church, any other Christian church or any other religious faith's teaching that, according to its doctrines, tenets and theological convictions, a marriage is between a man and a woman. That is entirely a matter for the church. That reflects the church's definition and the church's understanding of marriage. That is not what we are here concerned with. What we are here concerned with is the secular definition of marriage. So there isn't, as I say, any inconsistency, whatsoever.

You may think that the amendment that I move is strictly unnecessary. But I am concerned that there are many people—I know people who have engaged with me in this discussion—who have been misled by some of the wilder and more extravagant claims made by advocates of the 'no' point of view that by enacting Senator Smith's bill, in some way, there will be an imposition on religious freedom. So I move this amendment to put it absolutely beyond doubt that the effect of this bill will be to make no imposition, no limitation, no inhibition upon religious freedom.

The words I have adopted to describe the right which is protected are words taken straight from article 18.1 of the International Covenant on Civil and Political Rights, which protects the right of a person to manifest his or her religion or belief in worship, observance, practice and teaching. The amendment does not transport into Australian law or enact article 18.1. I am, as colleagues will know, not a supporter of a bill of rights, and this is not the germ of a bill of rights. What it does is adopt some well-understood language of description from an international human rights instrument to describe those aspects of religious freedom that ought to be protected. And, by the qualifying words 'in a lawful manner', the amendment puts it beyond doubt that it doesn't derogate from any other Australian law, because that which is protected is the exercise of a right of worship, observance, practice and teaching only if it is consistent with Australian law, federal and state—only if it takes place in a lawful manner.

So to those who say that we are opening the door to, for instance, Sharia law: if there are any aspects of Sharia law that are not lawful according to Australian law then this provision would ensure that they remain unlawful according to Australian law. Nor does this amendment in any way derogate from federal or state antidiscrimination laws. I want to emphasise that point, because I've heard dishonest claims made during the course of the day that in some way this amendment might have that effect. But because of the qualifying words 'in a lawful manner', it cannot. The words are words of reassurance. To those who may have been caused to have misgivings during the course of the debate, that in some way Senator Smith's bill derogates from religious freedom or somehow limits it: it does not. And if anyone has any doubt about that, the inclusion in the bill of these words will serve to remove that doubt entirely.

Now, I doubt that there would be anybody in this chamber quite so dishonest as to suggest that the inclusion of this amendment was meant to in some way limit or derogate from the effect of Senator Smith's bill. Plainly it does not—unless you accept that religious freedom cannot sit side by side with acceptance of marriage equality. They can sit side by side; they do sit side by side. They are entirely consistent with one another, and this amendment puts that proposition completely beyond doubt.