In this episode of the RawCut Podcast, we explore what happened in this weird year that we experienced. Also, Rhys explains the longest and most bizarre constitutional crisis Australia is currently going through, the citizenship crisis. RawCut thanks, everyone who listened and contributed to the show throughout 2017, and you will be hearing us again in 2018. Disclosure: RawCut was paid by the Member of Parliament (MP) for Mayo, Rebekha Sharkie, to produce video media for the Member of Parliament’s promotional purposes. Opinions expressed on The RawCut Podcast that involve Rebekha Sharkie as MP for Mayo, are not influenced by the services that were required by the MP and the subsequent payment made for them. The MP for Mayo has no editorial control over content produced by RawCut and distributed through RawCut.com.au, social media, and other RawCut branded media outlets. Sources:
The Marriage Amendment (Definition and Religious Freedoms) Bill passed the Senate on November 28. It was then passed in the House of Representatives on Thursday by an overwhelming majority: around 130 MPs voted in favour, just four voted against, and a small number abstained.
Thursday’s lower house vote followed a drawn-out debate in parliament. But prior to the bill being introduced to parliament, the government arranged for the Australian Bureau of Statistics to conduct the Australian Marriage Law Postal Survey.
This voluntary, non-binding expression of opinion came at a cost of around A$100 million. The survey results, released on November 15, showed 61.6% of respondents supported changing the law to allow same-sex marriage.
That evening, Brandis moved a private member’s bill in the Senate to begin the necessary legislative reform.
Liberal senator Dean Smith was the key proponent of this bill. It emerged from a cross-party Senate inquiry which concluded that legislation to permit same-sex marriage should also ensure some protection for religious freedoms.
The substance of the act
The new law changes the definition of marriage in the Marriage Act by removing the words “a man and a woman” and replacing them with “2 people”. This was the minimum required reform to enable same-sex marriage.
However, the bill goes beyond that minimalist change. It will insert a section into the act that reads:
It is an object of this act to create a legal framework:
a) to allow civil celebrants to solemnise marriage, understood as the union of 2 people to the exclusion of all others, voluntarily entered into for life; and
b) to allow ministers of religion to solemnise marriage, respecting the doctrines, tenets and beliefs of their religion, the views of their religious community or their own religious beliefs; and
c) to allow equal access to marriage while protecting religious freedom in relation to marriage.
There are three main features of the marriage reform law that attempt to balance marriage equality with religious freedoms.
First, some gain the capacity to be identified as “religious marriage celebrants”. To meet this definition, a person must be both a registered marriage celebrant and a minister of religion. This category covers people who are not ministers of religion of a recognised denomination, but regardless identify as ministers of religion.
An exceptional case is also permitted for people to identify as religious marriage celebrants even if they are not ministers of religion. The criteria for this case require a person to:
be already registered as a marriage celebrant;
give notice within 90 days of the new law’s assent that they wish to be identified as a religious marriage celebrant;
confirm that this wish is based on their religious beliefs.
Second, the law sets out circumstances in which ministers of religion and religious marriage celebrants can refuse to solemnise marriages. Although the grounds for refusal are not limited to same-sex marriages, these provisions have been included in the bill so that ministers and religious celebrants cannot be required to solemnise same-sex marriages.
Ministers of religion may refuse to solemnise a marriage where any of the following conditions apply:
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.
Religious marriage celebrants may refuse to solemnise a marriage “if the celebrant’s religious beliefs do not allow the celebrant to solemnise the marriage”.
There is a parallel exception for armed forces officers who are authorised to conduct marriage ceremonies.
Third, the law permits bodies established for religious purposes to refuse to make facilities available or provide goods and services in relation to the solemnisation of marriages. The circumstances in which this applies are if the refusal:
a) conforms to the doctrines, tenets or beliefs of the religion of the body; or
b) is necessary to avoid injury to the religious susceptibilities of
adherents of that religion.
So, for example, a same-sex couple could be refused the use of a church or church hall for their wedding ceremony, if that refusal meets the above conditions.
The marriage reform law also makes amendments to the Sex Discrimination Act. These changes ensure that no complaints of unlawful discrimination can be made in relation to refusals to solemnise marriages that are permitted under the Marriage Act.
Soon after the survey results were announced, Treasurer Scott Morrison said that more than 4 million “no” voters were coming to terms with being a minority on the question of same-sex marriage. But, as parliament has recognised, a law serving all Australians did not require elevating the rights of a minority over the rights of all.
A state-recognised institution – marriage – was closed to some members of the population on discriminatory grounds. In attending to that problem, there was no sense in arguing for multiple new forms of discrimination.
It was fortunate that parliament had a well-established bill to consider following the postal survey outcome. This meant that various amendments seeking to extend “protections” for religious freedom did not gain majority support, because most MPs were already satisfied with the Smith bill.
As it is, the new law already goes well beyond what was necessary to permit same-sex marriage. It would have been unconscionable to amend the bill in ways that privileged religious freedom over rights to equality and non-discrimination.
Nevertheless, the debate about the protection of religious freedom will persist. Prior to the passage of the marriage reform bill, Prime Minister Malcolm Turnbull announced an inquiry into “religious freedom protection in Australia”. Chaired by former MP Philip Ruddock, the inquiry is due to report by March 31 next year.
It’s time to vote, this month newcomers to the show Kyle and Zinia talk to Rhys about their opinion on the same-sex marriage survey and what their voting decision is. Plus we take a look at our media with a roundup on the latest from the Community TV switch off and we talk about the recent changes to media law that will change the ownership our media, for better or for worse.
All that and more on this episode of The RawCut Podcast.
Death does not concern us, because as long as we exist, death is not here. And when it does come, we no longer exist.
We are in the midst of two great ethical debates: marriage equality and assisted dying. The results of the marriage equality postal survey will be announced on November 15; meanwhile, the Victorian parliament is this week debating a new law to allow doctor-assisted dying in the last year of life.
What is striking is the volume of the respective public debates. Everyone is talking about marriage equality; very few are discussing assisted dying.
Given that the ethics of assisted dying are more complex than marriage equality, and what happens in Victoria is likely to provide a template for other states, why is it receiving so much less attention?
How fear of death affects public debate
Public ethical debates are fuelled by emotion and psychological biases on both sides. In the case of assisted dying, most of us are not like Epicurus: we fear death. We hate talking about it.
Despite the fact that polls show that 73% of Australians favour assisted dying, it is not clear whether the legislation will pass, although the mood seems to be leaning slightly in favour: 40 out of 87 MPs in the Legislative Assembly told the Herald Sun they would vote yes.
So, there should be an enormous impetus to show MPs the level of public support. But it has been rather muted. Perhaps for similar reasons we post photos of weddings on Facebook, but not funerals: both are important, but only one makes good dinner party conversation.
Terror management theory, evolution and social signalling
Our fear of death might even be linked to our love of marriage, according to terror management theory (TMT). Neuroscientist Claudia Aguirre writes:
When we’re faced with the idea of death, people defensively turn to things they believe will shield them from death, literal or otherwise. Thinking about death also motivates people to indiscriminately uphold and defend their cultural world views, whatever those may be.
TMT has been linked to our development of regulation and rituals around sex.
So, a fundamental commitment to marriage being between a man and a woman may be more of an immovable foundation on which group membership is based to guard against our shared fear of death than an ethical position that can be defended or rebutted on rational grounds.
While fear suppresses talk about dying, marriage equality involves sex. People are intensely interested in love and sex. And sex has been more important than death in evolutionary terms.
As evolved animals, we were only here to survive long enough to reproduce. Reproduction is evolution’s goal, and so practices around its rituals and norms are hugely important in evolutionary and religious terms.
Religions and societies seek to control reproduction. In the Judeo-Christian tradition, sex was to occur within marriage between one man and one woman. Death at an old age is of much less evolutionary significance.
We are social animals, motivated to support our in-group and reject out-group members. Tribalism can help explain our devotion to football teams, for example. We have developed social signalling to show our group which side we are on and maintain trust.
Add to that a status quo bias, and public debates where the topic in question is seen to express something foundational about ourselves can become little more than cheering for our own team.
Anchoring is a psychological bias that means we evaluate how good or bad something is relative to the anchor of existing examples.
In the UK, the 2013 same-sex marriage legislation was fairly uncontroversial. One reason could be that civil partnerships – same-sex marriage in all but name – were created back in 2004. Each step in the UK’s progress towards marriage equality was a short step from the previous state of being.
In contrast, the Australian campaign against same-sex marriage portrays the choice as a paradigm shift in our culture, extending far beyond marriage. Former prime minister Tony Abbott linked the debate to political correctness, gender fluidity and even the date of Australia Day, saying:
This isn’t just about marriage … there are lots and lots of implications here and we’ve got to think them through before we take this big leap into … the dark.
A better approach
For assisted dying to be an appropriate activity for medicine, we should show that death can be an appropriate therapeutic end and in a patient’s best interests. That is, that their life is no longer worth living.
That is an extremely difficult case to prove, and I haven’t seen any good arguments for how to evaluate that. Why wouldn’t we just go on what a competent person says? If a suffering person believes they’re better off dead, they’re probably right.
But here is another way to think about it. The Victorian legislation will provide assistance only to those in the last year of life from a physical illness. They are effectively in the process of dying.
One major objection to the assisted dying bill is that we don’t need it because good palliative care is sufficient. Relief of suffering is very important, and more should be spent on end-of-life planning and palliative care.
But this objection is complicated for several reasons. If palliative care is outstanding, people won’t request assistance in dying. So there is no need to ban it.
More importantly, while palliative care may be able to control pain and suffering, it cannot do everything.
Together with colleagues at Barwon Health and Oxford University, we surveyed 382 people from the general population and 100 attendees at an advance care planning clinic, where people think about and express their values relating to end-of-life care. We didn’t ask them about assisted dying, but we did ask them to rank four factors at the end of life: pain relief, dignity, independence and living as long as possible.
The highest proportion of both groups ranked the relief of pain and suffering as the most important value, followed by maintaining dignity and remaining independent.
Living as long as possible was ranked as most important by the lowest proportion of participants – only 4% of palliative care patients and 2.6% of the general population (30–35% regarded this as either not important or not very important).
People care not only about pain relief, but also about dignity and independence at the end of life. These are much more subjective and less amenable to control by palliative care. So while palliative care can address part of what people care about, it may not be able to address all their values.
Moreover, people can already shorten their lives by more than a year for any medical condition, or no medical condition at all, by refusing to eat and drink by mouth. It takes around ten days to die of thirst. Such people could be given palliative care to relieve their suffering during this period of suicide.
But surely the Victorian law offers a better way to die? As with the palliative care, this kind of death does not provide the dignified death, or the independence, that people value.
As distressing as public debate on heartfelt, emotive issues like assisted dying and marriage equality can be, it is an important collective exercise. Like many other people, I thought the marriage equality survey was a waste of money. But on reflection, this idea maybe misplaced. When the views of one part of the community are deemed politically incorrect and suppressed, they foment, then erupt in a Brexit or a Trump.
Debate is vitally important to democracy. What we should hope is that people engage in these debates with their heads, not their hearts. It will take considerable effort on both sides to overcome the psychological obstacles to finding the most fair and reasonable policy.
As Epicurus also said:
The art of living well and the art of dying well are one.
Julian Savulescu, Uehiro Chair in Practical Ethics, Visiting Professor in Biomedical Ethics, Murdoch Childrens Research Institute and Distinguished Visiting Professor in Law, Melbourne University, University of Oxford
In this episode of The RawCut Podcast Sarah and Rhys take a deep dive into the 2017 budget and its effects on young people and disabled people. Later Mark and Rhys review what happened at the recent constitutional convention in Uluru, for indigenous peoples recognition in the constitution.
All that and more on this episode of The RawCut Podcast.
Around 300 Aboriginal people and Torres Strait Islanders will gather from today at Uluru to hold a First Nations Convention. Running over four days, the meeting is the culmination of 12 regional dialogues held across the country on the constitutional recognition of Indigenous Australians.
At Uluru, delegates from each dialogue will aim to reach consensus on whether and how best to achieve this change.
How did we get here?
The convention is the latest step in the long-running debate on the constitutional recognition of Indigenous Australians. It has been organised by the Referendum Council, a body jointly established by Malcolm Turnbull and Bill Shorten in December 2015. The council is tasked with providing advice on progress and next steps toward constitutional reform.
In facilitating regional dialogues, the Referendum Council has built on two existing reports.
a modification to the wording of the Commonwealth’s lawmaking power in Indigenous affairs;
a constitutional prohibition on racial discrimination; and
the removal of a provision that contemplates states disqualifying people from voting based on their race.
The council also built on the work of a parliamentary committee that reported on the issue in 2015. Like the expert panel, the parliamentary committee consulted extensively with Indigenous peoples and communities, and recommended a similar suite of reforms.
The committee also discussed some options that had emerged since the expert panel’s report. These included a proposal for a body to advise parliament on proposed laws that affect Indigenous people.
What is the significance of the Uluru meeting?
Although the expert panel and the parliamentary committee consulted extensively with Indigenous Australians, they also consulted with non-Indigenous Australians. The views of Indigenous Australians were only a small part of their briefs.
The significance of the Referendum Council process lies in it being the first time Indigenous Australians have been asked to deliberate collectively and report back on what recognition means to them. Through this process, they have “reclaimed the movement towards constitutional recognition”.
Attendance at each dialogue was by invitation. Meetings were capped at 100 participants. 60% of places were reserved for traditional owner groups; 20% for community organisations; and 20% for key individuals. A balance was sought between gender and across age groups. Representation for the Stolen Generations was also key.
The council worked in partnership with a host organisation at each location to ensure the local community was appropriately represented in the process.
The dialogues were conducted as a deliberative forum. Each took place over three days, and included opportunities for large and small group discussions.
The Referendum Council assisted delegates by providing information on the Constitution and the history of constitutional reform. This allowed delegates to discuss and assess different reform options in an informed manner, and to explain what recognition would mean for their communities.
At the end of the three days delegates confirmed a statement of their discussion, and selected ten representatives for the Uluru meeting.
What will be agreed to?
It is impossible to know what the outcome of the convention at Uluru will be. But it appears very likely that a consensus on the need for meaningful and practical reform will emerge.
Writing earlier this month, Jill Gallagher and Nolan Hunter, conveners of the regional dialogues in Melbourne and Broome, noted all of the dialogues so far conducted had:
… rejected a purely symbolic or minimalist model in favour of substantive reform.
Substantive reform is more than a statement of acknowledgement. It may include a prohibition on racial discrimination, and an elected Indigenous body with a constitutional role in relation to laws that affect Indigenous peoples. It may also include support for a treaty or treaties – something progressing alongside constitutional recognition.
Ultimately, as Cheryl Axleby and Klynton Wanganeen, co-convenors of the Adelaide regional dialogue, have explained, substantive constitutional reform:
… is about building a better and fairer Australia as well as making good on past promises – to treat Aboriginal Australians with dignity and respect.
For many Australians, it may be the first time they have heard directly from Indigenous people their views on constitutional recognition.
Following the convention, the Referendum Council will report its final advice on constitutional change to the government and the opposition. Neither the Uluru document nor the Referendum Council report will bind them to any action.
After a considerable process of listening to Indigenous Australians, however, the Uluru statement should inform the model taken to the referendum. This may go further than Turnbull and Shorten are willing to consider right now. But it is difficult to see how doing otherwise would treat Indigenous Australians with dignity and respect.
Ultimately, all Australians need to ask a simple question: is constitutional recognition of Indigenous peoples for the First Australians or for non-Indigenous Australians?
If the former, their views should form the basis for the model. If the latter, then there seems little point in asking them at all.