Covenant clause fix for split on same-sex marriage

New amendment to SSM legislation planned as resentment grows within government and John Howard raises concerns.

Attorney-General George Brandis. Picture: AAP

Attorney-General George Brandis is considering an amendment to the same-sex-marriage legislation that uses an international agreement upholding religious liberty, in a move to placate ­conservative MPs demanding extra protections.

The Weekend Australian can reveal Senator Brandis is looking at incorporating article 18 of the International Covenant on Civil and Political Rights into a bill proposed by West Australian Liberal senator Dean Smith, and backed by Labor and the Greens.

Senator Brandis’s move is considered a circuit breaker that could unite government ranks and win broad parliamentary support for greater religious protections as Malcolm Turnbull faces pressure from conservative MPs to uphold parental rights in same-sex-marriage legislation.

Cabinet minister Matt Canavan — a leading No campaigner — told The Weekend Australian he was “open to supporting the clarification of our pre-existing international human rights obligations as a means of unifying the parliament on these historic changes to the Marriage Act”.

The push from Senator Brandis comes after the UN’s Human Rights Committee, in its sixth periodic report on Australia, sounded its concern about the “lack of direct protection against discrimination on the basis of ­religion at the federal level”.

A coalition of Liberal, Nationals, Labor and crossbench senators are canvassing amendments to Senator Smith’s bill to preserve parental choice, protect faith-based charities and shield individuals from adverse ­consequences for defending ­traditional marriage, but have not reached a consensus.

Growing resentment at the government’s management of the issue has encouraged ­Nationals MPs, led by senator Barry O’Sullivan, to seek out Labor and Greens support for a bill establishing a banking royal commission — a move that ­mimics the tactics used to rally support for Senator Smith’s bill.

Senator Barry O'Sullivan.

“Five million Australians said they didn’t want this (same-sex marriage) and don’t agree with it, so they ought to be able to express their views freely without filling up the courtrooms,” Senator O’Sullivan said.

Senior conservatives including Immigration Minister Peter Dutton and Treasurer Scott Morrison are drawing a line in the sand, ­arguing that key religious protections must not be carved out of the enabling legislation to be held-over for debate in the new year.

The Weekend Australian understands Senator Brandis is ­considering amending Senator Smith’s bill to incorporate word-for-word the first clause of article 18, which states that “everyone shall have the right to freedom of thought, conscience and religion”.

Liberal senator David Fawcett, who led a parliamentary inquiry into legislation for same-sex ­marriage, backed moves to ­enshrine article 18 in law. But he suggested all four of its clauses should be replicated, including the last provision that upholds the “liberty of parents … to ensure the religious and moral education of their children in conformity with their own convictions”.

“Australia has never legislated at a federal level for article 18 and coverage at state level is extremely limited and varies from state to state,” Senator Fawcett said.

“The Human Rights Commission has twice called on the government to legislate for article 18 and the UN has just released their 6th periodic review which has called on us to legislate.”

Former Prime Minister John Howard joins Tarnya Smith on the campaign trail in Queensland. Photo: Annette Dew

John Howard, who was yesterday campaigning with LNP state MP Tarnya Smith in Brisbane, said that although he voted no, he ­respected the view of the people and pushed for parental rights to be protected.

“I expressed the view some weeks ago — and I repeat it today — that the protections proposed in Dean Smith’s bill are not enough,” the former prime minister said. “I am concerned about parental rights. I think parents should have the right to decide how their ­children are educated in the area of sensitive social considerations and gender. I make no bones about that. I also think it’s enormously important that the right of ­religious and faith-based schools and organisations to teach ­according to their beliefs be fully protected.”

Mr Dutton yesterday made clear that he wanted immediate action to ensure proper parental and religious protections in any same-sex-marriage legislation in addition to a debate on the need for a general religious protection. “I want to make sure that proper parental protections are in place,” Mr Dutton said. “Because I do think this Safe Schools movement will use this debate as a launching pad for their next wave.”

The position aligns him with Mr Morrison, the most senior cabinet member to champion ­additional parental safeguards.

ACT Liberal senator Zed ­Seselja said a deferral of religious protections would see the issue fall off the agenda.

“We can’t push it to the never-never because Labor senators and members will not in future have a free vote on any freedoms bill and therefore Labor and the Greens will vote as a block to stop it,” ­Senator Seselja said.

He argued that any legislation needed to include “conscientious objection to Safe Schools-type teachings, anti-detriment protections and broad freedoms for religious organisations for speech”.

West Australian Liberal MP Andrew Hastie warned that a failure to protect the rights of parents to educate children in line with their moral convictions would lessen personal freedoms. He also called for more protections for faith-based organisations.