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27    Marriage Amendment (Definition and Religious Freedoms) Bill 2017

Order of the day read for the further consideration of the bill in committee of the whole.

 

 

 

In the committee

Consideration resumed of the bill, as amended.

Senator Paterson, also on behalf of Senator Fawcett, moved the following amendments together by leave:

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 marri age 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 engag ing 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:

4A  Subsection 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 S tate 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 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.

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 reason ably 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 Ac t”, 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 authority in 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 authority in 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 writi ng 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 unit s.

     (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 defen ce 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 1986

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.

Debate ensued.

Question—That the amendments be agreed to—put.

A division was called for.

Leave refused : After the Senate had proceeded to divide, Senator Macdonald sought leave to have the question divided. An objection was raised and leave was not granted.

The committee divided—

AYES, 20

Senators—

Abetz

Bushby

Fawcett

O’Sullivan

Anning

Canavan

Fierravanti-Wells

Paterson

Bernardi

Cash

Georgiou

Ruston

Brockman

Cormann

Macdonald

Seselja

Burston

Duniam

McGrath

Williams*

 

 

NOES, 44

Senators—

Bartlett

Gallacher

McCarthy

Rice

Bilyk

Gallagher

McKenzie

Scullion

Birmingham

Griff

McKim

Siewert

Brown

Hanson-Young

Moore

Singh

Cameron

Hinch

O’Neill

Smith

Carr

Hume

Patrick

Steele-John

Chisholm

Ketter

Payne

Sterle

Collins

Kitching

Polley

Urquhart

Dastyari*

Leyonhjelm

Pratt

Watt

Di Natale

Lines

Reynolds

Whish-Wilson

Farrell

McAllister

Rhiannon

Wong

* Tellers

Question negatived.

 

 

 

Statement by Chair of Committees : The Chair of Committees (Senator Lines) made a statement, in response to a point of order raised by Senator Macdonald, to the effect that it is not possible for the chair to divide a question once the committee has proceeded to divide, unless leave is first granted in accordance with standing order 98(3).

 

 

 

Bill, as amended, further debated.

Senator Fawcett, also on behalf of Senator Paterson, moved the following amendments together by leave:

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 ”.

Schedule 1 , item 2 , page 5 (lines 1 to 4) , omit subparagraph ( b )( ii ) of the definition of authorised celebrant , substitute:

                                                 (ii)   an authorised officer.

Schedule  1 , page 5 (after line 4) , after item  2 , insert:

2A  Subsection 5(1)

Insert:

authorised officer means an officer (within the meaning of the Defence Act 1903 ), other than a chaplain, authorised by the Chief of the Defence Force under section 71A to solemnise marri ages under Division 3 of Part V.

Schedule 1 , item 4 , page 5 (lines 9 to 12) , omit all the words from and including officer ”, substitute authorised officer ”.

Schedule  1 , page 5 (after line 17) , after item  5 , insert:

5A  After section 5

Insert:

5AD   Determining when a belief is held etc.

     (1)   For the purposes of this Act, a person 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 that belief) is not fictitious, capricious or an artifice.

     (3)   For the purposes of this Act, if a chaplain or an authorised officer holds 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, 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 chaplain or authorised officer; and

                              (b)  in determining whether the other person is a man or a woman, if the chaplain or authorised officer reason ably 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 chaplain or authorised officer may disregard the current legal status of the other person’s sex or gender, or their gender identity or intersex status.

Schedule  1 , item  6 , page 5 (lines 18 and 19) , omit the item, substitute:

6  Paragraph 21(2)(b)

After “the chaplain ”, insert “or authorised officer ”.

Schedule  1 , item  22 , page 12 (lines 12 and 13) , omit the item, substitute:

22  Subsection 71(1)

After “a chaplain ”, insert “or an authorised officer ”.

Schedule  1 , item  23 , page 12 (line 16) , omit the heading to section  71A , substitute:

71A   Officers authorised to solemnise marriages

Schedule  1 , items 24 and 25, page 12 (lines 20 to 25) , omit the items, substitute:

24  Paragraphs 72(1)(a) and (b)

After “the chaplain ” (wherever occurring), insert “or authorised officer ”.

25  Subsection 72(2)

After “the chaplain ” (wherever occurring), insert “or authorised officer ”.

Schedule 1 , items 27 to 56 , page 12 (line 28) to page 15 (line 22) , omit the items, substitute:

27  Section 74 (heading )

After chaplain ”, insert or authorised officer ”.

28  Subsection 74(1)

After “the chaplain ”, insert “or authorised officer ”.

29  Subsection 74(3)

After “chaplain ”, insert “or authorised officer ”.

30  Section 75 (heading )

After Chaplain ”, insert or authorised officer ”.

31  Section 75

After “A chaplain ”, insert “or authorised officer ”.

32  Section 75

After “the chaplain ”, insert “or authorised officer ”.

33  Subsections 76(1), 77(1) and 78(2)

After “chaplain ”, insert “or authorised officer ”.

34  Section 79 (heading )

After Chaplain ”, insert or authorised officer ”.

35  Section 79

After “A chaplain ”, insert “or authorised officer ”.

36  Section 79

After “the chaplain ”, insert “or authorised officer ”.

37  Subsection 80(1)

After “a chaplain ”, insert “or authorised officer ”.

38  Subsection 80(1)

After “the chaplain ”, insert “or authorised officer ”.

39  Paragraphs 80(2)(a) and (c)

After “the chaplain ”, insert “or authorised officer ”.

40  Subsection 80(4)

After “The chaplain ”, insert “or authorised officer ”.

41  Subsections 80(5) and (6)

After “the chaplain ”, insert “or authorised officer ”.

42  Subsection 80(8)

After “a chaplain ”, insert “or authorised officer ”.

43  Subsection 80(9)

After “the chaplain ” (first occurring), insert “or authorised officer ”.

44  Paragraph 80(9)(b)

After “the chaplain ”, insert “or authorised officer ”.

45  Subsection 80(10)

After “a chaplain ”, insert “or authorised officer ”.

46  Section 81 (heading)

Repeal the heading, substitute:

81   Power to refuse to solemnise marriage

Chaplain or authorised officer may refuse to solemnise marriage on any grounds

47  Section 81

Omit “A chaplain ”, insert “(1) A chaplain or authorised officer ”.

48  Section 81

After “the chaplain ” (wherever occurring), insert “or authorised officer ”.

49  At the end of section 81

Add:

Chaplain may refuse to solemnise marriage on the basis of religious or conscientious beliefs etc.

     (2)   To avoid doubt, a chaplain may refuse to solemnise a marriage despite anything in this Part or any law of a State or Territory, if any of the following applies:

                              (a)  the refusal is consistent with the doctrines, tenets or beliefs of the religion of the chaplain ’s religious body or religious organisation;

                              (b)  the refusal is because of the religious susceptibilities of adherents of that religion;

                               (c)  the chaplain ’s genuine religious or conscientious beliefs do not allow the chaplain to solemnise the marriage.

Authorised officer may refuse to solemnise marriage on the basis of genuine religious or conscientious belief

     (3)   Despite anything in this Part or any law of a State or Territory, an authorised officer may refuse to solemnise a marriage that is not the union of a man and a woman, if:

                              (a)  the officer holds 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; and

                              (b)  the holding by the officer of that belief does not allow the officer to solemnise the marriage.

Grounds for refusal not limited by this section

     (4)   Subsections (2) and (3) do not limit the grounds on which a chaplain or an authorised officer may refuse to solemnise a marriage.

50  Subsection 83(2)

After “a chaplain ”, insert “or authorised officer ”.

51  Section 84 (heading )

After a chaplain ”, insert or authorised officer ”.

52  Paragraph 84(1)(a)

After “a chaplain ”, insert “or authorised officer ”.

53  Paragraphs 84(1)(b) and (c)

After “the chaplain ”, insert “or authorised officer ”.

54  Subsection 84(1)

After “the chaplain ” (last occurring), insert “or authorised officer ”.

55  Paragraph 85(1)(b)

After “a chaplain ”, insert “or authorised officer ”.

56  Paragraph 85(1)(c)

After “the chaplain ”, insert “or authorised officer ”.

56A  Subsection 85(1)

After “the chaplain ” (last occurring), insert “or authorised officer ”.

Schedule  1 , items  59 and 60 , page 16 (lines 1 to 4) , omit the items, substitute:

59  Subsection 99(3)

After “A chaplain ”, insert “or authorised officer ”.

60  Subsection 116(2)

Omit “celebrant or chaplain ” (wherever occurring), substitute “celebrant, chaplain or authorised officer ”.

Schedule  1 , item  62 , page 16 (lines 7 and 8) , omit the item, substitute:

69  Paragraph 119(3)(f)

After “chaplain ”, insert “or authorised officer ”.

Schedule  1 , item  63 , page 17 (after line 24) , after subsection  40 ( 2AB ), insert:

(2AC)  An authorised officer in the Defence Force may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if the circumstances mentioned in subsection 81(3) of the Marriage Act 1961 apply.

Debate ensued.

Question—That the amendments be agreed to—put.

The committee divided—

AYES, 20

Senators—

Abetz

Cash

Fifield

O’Sullivan

Bernardi

Cormann

Georgiou

Paterson

Brockman

Duniam

Hanson

Ruston

Bushby

Fawcett

Macdonald

Seselja

Canavan

Fierravanti-Wells

McGrath

Williams*

 

 

NOES, 42

Senators—

Bartlett

Gallacher

McCarthy

Rice

Bilyk

Gallagher

McKim

Siewert

Birmingham

Griff

Moore

Singh

Brown

Hanson-Young

O’Neill

Smith

Cameron

Hinch

Patrick

Steele-John

Carr

Hume

Payne

Sterle

Chisholm

Ketter

Polley

Urquhart*

Collins

Kitching

Pratt

Watt

Dastyari

Leyonhjelm

Reynolds

Whish-Wilson

Di Natale

Lines

Rhiannon

Wong

Farrell

McAllister

 

* Tellers

Question negatived.

Senator Paterson, also on behalf of Senator Fawcett, moved the following amendments together by leave:

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 5), omit “Part 5”, substitute “Parts 4A, 4B, 4C and 5”.

Schedule  1 , page 5 (after line 17) , after item  5 , insert:

5A  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 marri age 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 child ren 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 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.

5AD   Determining when a belief is held etc.

     (1)   For the purposes of this Act, a person or entity holds a genuine religious or conscientious belief, or genuinely believes, if the holding of the belief (inclusive of the person’s or entity’s 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.

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

88N   Non-discrimination in the allocation of funding

     (1)   Despite any law, it is unlawful for the Commonwealth, a State, a Territory or a government entity to:

                              (a)  decline to provide funding; or

                              (b)  impose a condition on funding that is provided;

that discriminates against a person or an entity because the person or entity:

                               (c)  holds a relevant belief or a relevant marriage belief; or

                              (d)  acts, or refuses or omits to do an act, because the person or entity genuinely believes that the action, refusal or omission is consistent with the relevant marriage belief or relevant belief; or

                               (e)  expresses the relevant marriage belief or relevant belief.

Note:         For paragraph (1)(a), an example of funding is a grant made by the Minister under Part 1A of the Act.

     (3)   In this section:

government entity means:

                              (a)  a government entity (within the meaning of the A New Tax System (Australian Business Number) Act 1999 ); or

                              (b)  an entity established by or under a law of a State or Territory.

88O   Charitable status

     (1)   An entity does not fail to satisfy the requirement in subparagraph (b)(i) of the definition of charity in section 5 of the Charities Act 2013 for the reason that:

                              (a)  the entity holds, expresses or acts upon a relevant marriage belief or a relevant belief; or

                              (b)  the entity refuses, or omits, to do an act because the entity genuinely believes that the action, refusal or omission is consistent with the relevant marriage belief or relevant belief.

     (2)   For the purposes of paragraph (c) of the definition of charity in section 5 of the Charities Act 2013 , a purpose of an entity is not a disqualifying purpose (within the meaning of section 11 of that Act) for the reason that:

                              (a)  the entity has a purpose of engaging in or promoting, or engages in or promotes, activities that the entity genuinely believes are in connection with, or as a consequence of, the entity holding, expressing or acting upon a relevant belief or a relevant marriage belief; and

                              (b)  if it were not for this Part, the activities may be:

                                                  (i)   unlawful or contrary to public policy; or

                                                 (ii)   determined to be unlawful or contrary to public policy.

Schedule  1 , page 19 (after line 13) , after Part  4 , insert:

Part 4A Amendment of the Charities Act 2013

Charities Act 2013

68A  After subsection 12(3)

Insert:

     (4)   For the purposes of this section, disregard the fact that an entity is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984 .

Note 1:      For example, a body that has a purpose of advancing social or public welfare may be registered under subparagraph (1)(c) regardless of whether it is a body established to advance religion under section 37 of the Sex Discrimination Act 1984 . It may be both a body that has a purpose of advancing social or public welfare and a body established for religious purposes under section 37 of the Sex Discrimination Act 1984 , but for the purposes of paragraph (1)(c) regard is not had to its status under section 37 of the Sex Discrimination Act 1984 .

Note 2:      For example, a body that has a purpose of advancing religion may be registered under paragraph (1)(d) regardless of whether it is a body established to advance religion under section 37 of the Sex Discrimination Act 1984 . It may be both a body that has a purpose of advancing religion under paragraph (1)(d) and a body established for religious purposes under section 37 of the Sex Discrimination Act 1984 , but for the purposes of paragraph (1)(d) regard is not had to its status under section 37 of the Sex Discrimination Act 1984 .

Part 4B Amendment of the Income Tax Assessment Act 1997

Income Tax Assessment Act 1997

68B  After subsection 30 -320

Insert:

30-325   Bodies established for religious purposes

             A fund, authority or institution does not fail to satisfy the requirements for endorsement under Division 30 of this Act for the reason that the fund, authority or institution is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984 .

Part 4C Amendment of the Fringe Benefits Tax Assessment Act 1986

Fringe Benefits Tax Assessment Act 1986

68C  After subsection 123C(2)

Insert:

     (3)   An entity does not fail to satisfy the requirements for endorsement in subsection (2) for the reason that the entity is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984 .

68D  After subsection 123D(2)

Insert:

     (3)   An entity does not fail to satisfy the requirements for endorsement in subsection (2) for the reason that the entity is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984 .

Debate ensued.

Document : Senator Smith, by leave, tabled the following document:

Marriage Amendment (Definition and Religious Freedoms) Bill 2017—‘Marriage equality - proposed amendments to the bill are unnecessary’—Media release issued by Justice Connect, dated 28 November 2017.

Debate continued.

Question—That the amendments be agreed to—put.

The committee divided—

AYES, 22

Senators—

Abetz

Cash

Georgiou

O’Sullivan

Bernardi

Cormann

Hanson

Paterson

Brockman

Duniam*

Macdonald

Ruston

Burston

Fawcett

McGrath

Seselja

Bushby

Fierravanti-Wells

McKenzie

Williams

Canavan

Fifield

 

 

 

NOES, 41

Senators—

Bartlett

Gallacher

McCarthy

Rice

Bilyk

Gallagher

McKim

Siewert

Birmingham

Griff

Moore

Singh

Brown

Hanson-Young

O’Neill

Smith

Cameron

Hinch

Patrick

Steele-John

Carr

Hume

Payne

Sterle

Chisholm

Ketter

Polley

Urquhart

Collins

Kitching

Pratt

Watt

Dastyari

Lines

Reynolds

Whish-Wilson

Di Natale

McAllister*

Rhiannon

Wong

Farrell

 

* Tellers

Question negatived.

Senator Fawcett, also on behalf of Senator Paterson, moved the following amendments together by leave:

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 ”.

Schedule  1 , page 17 (before line 4) , before item  63 , insert:

62C  Subsection 37(1)(d)

Repeal the paragraph, substitute:

                              (d)  any other act or practice of a body established for religious purposes, being an act or practice that is consistent with the doctrines, tenets or beliefs of that religion or is because of the religious susceptibilities of adherents of that religion.

62D  At the end of section 37

Add:

     (3)   Despite any law (including any provision of this Act and any law of a State or Territory) a body established for religious purposes includes, and shall be deemed to have always included, without limitation, a body:

                              (a)  that is a:

                                                  (i)   not for profit entity; or

                                                 (ii)   charity under the Charities Act 2013 , including any public benevolent institution (regardless of whether any of the charitable purposes of the entity is advancing religion);

                              (b)  where that body:

                                                  (i)   is established by or under the direction, control or administration of a body established for religious purposes; or

                                                 (ii)   is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; or

                                                (iii)   is a body to which subsection (4) applies.

     (4)   A charity that has a charitable purpose pursuant to the Charities Act 2013 that is not advancing religion may be a body established for religious purposes through advancing that other charitable purpose:

                              (a)  where that other charitable purpose is an effectuation of, conducive to or incidental or ancillary to, and in furtherance or in aid of, the advancement of its religious purpose; or

                              (b)  where the advancement of religion is an effectuation of, conducive to, or incidental or ancillary to, and in furtherance or in aid of, that other charitable purpose.

     (5)   Subsection (4) does not limit the circumstances in which a charity that has a charitable purpose that is not advancing religion may be a body established for religious purposes through advancing that other charitable purpose.

62E  Subsections 38(1), (2) and (3)

Omit “in order to avoid injury to”, substitute “because of”.

62F  After section 38

Insert:

38A   Determining when an act or practice is consistent etc.

     (1)   For the purposes of paragraph 37(1)(d), an act or practice is consistent with the doctrines, tenets or beliefs of that religion if the body established for religious purposes holds a belief that it is consistent with the doctrines, tenets or beliefs of that religion and that belief is not fictitious, capricious or an artifice.

     (2)   For the purposes of paragraph 37(1)(d), an act or practice is because of the religious susceptibilities of adherents of that religion if the body established for religious purposes holds a belief that it is because of the religious susceptibilities of adherents of that religion and that belief is not fictitious, capricious or an artifice.

     (3)   For the purposes of section 38, an act or omission is because of the religious susceptibilities of adherents of that religion or creed if the institution holds a belief that the act or omission is because of the religious susceptibilities of adherents of that religion and that belief is not fictitious, capricious or an artifice.

     (4)   A body or institution holds a doctrine, tenet or belief if it has adopted that doctrine, tenet or belief. Without limiting the foregoing, a body or institution may adopt a doctrine, tenet or belief by:

                              (a)  including the doctrine, tenet or belief in its governing documents, organising principles, statement of beliefs or statement of values; or

                              (b)  adopting principles, beliefs or values of another body or institution which include the doctrine, tenet or belief; or

                               (c)  adopting principles, beliefs or values from a document or source which include the doctrine, tenet or belief; or

                              (d)  acting consistently with that doctrine, tenet or belief.

38B   Sections 37, 38 and 38A are intended to “cover the field”

     (1)   Despite any law, but subject to subsection (3), it is the intention of Parliament that, in order to recognise the protections, rights, privileges and entitlements of a body or institution to which sections 37, 38 or 38A apply, and to ensure that such protections, rights, privileges and entitlements are recognised equally and without discrimination in all States and Territories, sections 37, 38 and 38A operate:

                              (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.

     (2)   For the avoidance of doubt, and without limiting subsection (1), but subject to subsection (3), despite any law, if a protection, right, privilege or entitlement granted, or a limitation provided for under section 37, 38 or 38A 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.

     (3)   The protections, rights, privileges and entitlements of a body or institution to which sections 37, 38 or 38A apply are in addition to the protections, rights, privileges and entitlements provided under any law of the Commonwealth or a State or Territory. Nothing in subsections (1) or (2) shall exclude or limit the operation of the laws of the Commonwealth or a State or a Territory that are more protective of those protections, rights, privileges and entitlements.

Schedule 1, item 63, page 17 (line 27), omit “conforms to”, substitute “is consistent with”.

Schedule 1, item 63, page 17 (line 28), omit “necessary to avoid injury to”, substitute “because of”.

Debate ensued.

Question—That the amendments be agreed to—put.

The committee divided—

AYES, 23

Senators—

Abetz

Cash

Georgiou

O’Sullivan

Bernardi

Cormann

Hanson

Paterson

Brockman

Duniam

Leyonhjelm

Ruston

Burston

Fawcett

Macdonald

Seselja

Bushby*

Fierravanti-Wells

McGrath

Williams

Canavan

Fifield

McKenzie

 

 

 

NOES, 41

Senators—

Bartlett

Gallacher

McCarthy

Rice

Bilyk

Gallagher

McKim

Siewert

Birmingham

Griff

Moore

Singh

Brown

Hanson-Young

O’Neill

Smith

Cameron

Hinch

Patrick

Steele-John

Carr

Hume

Payne

Sterle

Chisholm

Ketter

Polley

Urquhart*

Collins

Kitching

Pratt

Watt

Dastyari

Lines

Reynolds

Whish-Wilson

Di Natale

McAllister

Rhiannon

Wong

Farrell

 

* Tellers

Question negatived.

Senator Brandis, also on behalf of Senator Canavan, moved the following amendment:

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.

Debate ensued.

Question—That the amendment be agreed to—put.

The committee divided—

AYES, 27

Senators—

Abetz

Cormann

Leyonhjelm

Reynolds

Bernardi

Duniam

Macdonald

Ruston

Brandis

Fawcett

McGrath

Ryan

Brockman

Fierravanti-Wells

McKenzie

Scullion

Bushby*

Fifield

O’Sullivan

Seselja

Canavan

Georgiou

Paterson

Williams

Cash

Hume

Payne

 

 

 

NOES, 36

Senators—

Bartlett

Farrell

McAllister

Rice

Bilyk

Gallacher

McCarthy

Siewert

Brown

Gallagher

McKim

Singh

Cameron

Griff

Moore

Steele-John

Carr

Hanson-Young

O’Neill

Sterle

Chisholm

Hinch

Patrick

Urquhart

Collins

Ketter

Polley

Watt

Dastyari*

Kitching

Pratt

Whish-Wilson

Di Natale

Lines

Rhiannon

Wong

* Tellers

Question negatived.

Senator Brandis, also on behalf of Senator Canavan, moved the following amendment:

Schedule 1, item 20, page 10 (line 11) to page 11 (line 10), omit the item, substitute:

20  Section 47

Repeal the section, substitute:

47   Ministers of religion and marri age celebrants may refuse to solemnise marriages

Ministers of religion

     (1)   A minister of religion may refuse to solemnise a marriage despite anything in this Part.

     (2)   In particular, nothing in this Part prevents a minister of religion from:

                              (a)  making it a condition of solemnising a marriage that:

                                                  (i)   notice of the intended marriage is given to the minister earlier than this Act requires; or

                                                 (ii)   additional requirements to those provided by this Act are complied with; and

                              (b)  refusing to solemnise the marriage if the condition is not observed.

     (3)   A minister of religion may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:

                              (a)  the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister’s religious body or religious organisation;

                              (b)  the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;

                               (c)  the minister’s religious beliefs do not allow the minister to solemnise the marriage.

Marriage celebrants

     (4)   A marriage celebrant may refuse to solemnise a marriage, despite anything in this Part, if the marriage celebrant’s religious or conscientious beliefs do not allow the marriage celebrant to solemnise the marriage.

Grounds for refusal not limited by this section

     (5)   This section does not limit the grounds on which a minister of religion or a marriage celebrant may refuse to solemnise a marriage.

Debate ensued.

Question—That the amendment be agreed to—put.

The committee divided—

AYES, 25

Senators—

Abetz

Duniam

Macdonald

Reynolds

Brandis

Fawcett

McGrath

Ruston

Brockman

Fierravanti-Wells

McKenzie

Ryan

Bushby*

Fifield

O’Sullivan

Scullion

Canavan

Georgiou

Paterson

Seselja

Cash

Leyonhjelm

Payne

Williams

Cormann

 

 

 

NOES, 38

Senators—

Bartlett

Farrell

McCarthy

Siewert

Bilyk

Gallacher

McKim

Singh

Birmingham

Gallagher

Moore

Smith

Brown

Griff

O’Neill

Steele-John

Cameron

Hanson-Young

Patrick

Sterle

Carr

Hinch

Polley

Urquhart

Chisholm

Ketter

Pratt

Watt

Collins

Kitching

Rhiannon

Whish-Wilson

Dastyari*

Lines

Rice

Wong

Di Natale

McAllister

 

* Tellers

Question negatived.

 

 

 

After 11 pm : The President resumed the chair and the Chair of Committees (Senator Lines) reported progress.