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Wednesday, 29 November 2017
Page: 9169


Senator LEYONHJELM (New South Wales) (11:29): I move amendment (3) on sheet 8321 revised standing in my name:

(3) Schedule 1, Part 2, page 17 (lines 1 to 29), omit the Part, substitute:

Part 2—Amendment of the Sex Discrimination Act 1984

Sex Discrimination Act 1984

63 After section 38

Insert:

38A Marriage

Nothing in Division 1 or 2, other than section 26, renders it unlawful for a person to discriminate against another person on the ground of the other person's sexual orientation, gender identity, intersex status, marital or relationship status in the course of providing, or offering to provide, goods, services or facilities for, or in connection with:

(a) the solemnisation of a marriage under the Marriage Act 1961; or

(b) the preparation for, or celebration of, such a marriage; or

(c) the preparation for, or celebration of, events associated with such a marriage, including:

   (i) an event announcing or celebrating the engagement of the parties to be married; and

   (ii) an event celebrating the anniversary of the marriage.

[allowing non -government discrimination regarding marriage]

This amendment does three things. First, the amendment preserves the existing exemption from the Sex Discrimination Act for anything done by a person in direct compliance with the Marriage Act 1961—this is subsection 40(2A) of the Sex Discrimination Act. My amendment does this by opposing Senator Smith's bill's repeal of this existing exemption.

Secondly, my amendment rejects the replacement exemption proposed in Senator Smith's bill. The replacement exemption is narrower than the existing exemption. The replacement exemption would only cover refusals to solemnise. The existing exemption covers anything done in direct compliance with the Marriage Act. This includes, for instance, a decision to solemnise a marriage on the condition that a longer notice of intention to marry is given. The replacement exemption would only cover ministers of religion, religious marriage celebrants and chaplains in the Defence Force. The existing exemption covers any person. This could include someone assisting a minister of religion, a religious marriage celebrant or a chaplain in the Defence Force. Senator Smith's bill clearly narrows the exemption from the Sex Discrimination Act. Such a winding back of protections was not in the question that was put to Australian voters. It is not what they voted for. In fact, voters were told there would be no winding back of protections, and whenever an extension of protections has been proposed in this debate it has been voted down on the grounds that this bill should not deal with matters beyond the Marriage Act. If you do not want the existing exemption from the Sex Discrimination Act to be wound back, you need to support my amendment. Currently, there is no other amendment that prevents this winding back of the existing exemption.

However, at the outset I mentioned that my amendment does three things. The third thing it does is insert a new, broad exemption from the Sex Discrimination Act that would cover the same things as the existing exemption but go well beyond that. The new exemption would cover discrimination by any person in the course of providing or offering to provide goods, services or facilities for or in connection with a marriage. This covers a wedding as well as events celebrating an engagement or anniversary. This new exemption does not cover section 26 of the Sex Discrimination Act. Section 26 states that:

It is unlawful for a person who performs any function … under a Commonwealth law or for the purposes of a Commonwealth program … to discriminate … on the ground of … sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding …

As such, my amendment allows people to discriminate in the private sphere but does not allow discrimination by the government which represents us all. I do not argue that there are a significant number of bakers or florists who are inclined to refuse to service a same-sex marriage—indeed, I do not know if there are any—but it is not the role of the government to dictate to such people who they must do business with. I note also that refusing to service a same-sex marriage would be an odd business decision and may well prompt other consumers to boycott that business, which they're free to do.

My amendment may be more relevant to people whose line of work exclusively relates to marriages, such as wedding planners. It could be that people will want to specialise in servicing same-sex marriages. It could even be that the number of people wanting to specialise in servicing same-sex marriages could exceed the number of people wanting to specialise in servicing straight marriages. My amendment does not trample on state rights. If people see issues with state discrimination law, the appropriate forum to address this is the relevant state's parliament. My amendment does not allow discrimination by the Commonwealth. Government represents us all, and the job of public servants is to serve everyone. My amendment allows, in a limited way, individuals to discriminate in the private sphere. This will assist people specialising in servicing same-sex marriages as much as it will assist opponents of same-sex marriage. My amendment is modest, and I commend it to the Senate.

The CHAIR: I remind senators, once again, that advisers are not to be on the floor of the Senate.