Monday, 25 June 2012
Legal and Constitutional Affairs Legislation Committee; Report
I present the final report of the Legal and Constitutional Affairs Legislation Committee's inquiry on the Marriage Equality Amendment Bill 2010, together with the Hansard record of proceedings and documents presented to the committee.
Ordered that the report be printed.
by leave: I move:
That the Senate take note of the report.
I stand here very proudly as the Chair of the Senate's Legal and Constitutional Affairs Legislation Committee tabling this report on Senator Hanson-Young's marriage equality bill. This is not a complicated piece of work, by any means, that this committee has undertaken for many years. So it is not difficult and it is not complicated. The issues are not particularly difficult or complicated either but it is certainly an inquiry which has generated national attention, a lot of emotion and has produced for us a tremendous amount of work inside the committee.
I will spend a minute elaborating on that. This inquiry received 79,200 submissions—unprecedented in the history of this parliament. I want to defend it and also place on record my enormous appreciation of and understanding of the workload that that has generated for the committee staff, particularly our secretary, Julie Dennett, and Ann Palmer, who were the two lead people assisting this inquiry by the committee. Seventy-nine thousand two hundred submissions means that whether it was one page, whether it was an email or whether it was a complicated submission from an organisation that went to hundreds of pages, they were all dealt in exactly the same way. They were all handled, registered and entered on a database in each and every same way. They were treated equally by the committee staff and by the committee.
What people are focused on is the arguments in favour of marriage equality and those against. At the end of the day, 46,400 submissions or 59 per cent were in favour of changing the Marriage Act and 32,800 or 41 per cent were not in favour of changing the Marriage Act. I also want to make it abundantly clear that the committee meets and determines for itself the way in which it conducts the inquiry. We determine whether we have public hearings, who we hear from, and, in a democratic way, what submissions will be published and what will not. We made a decision as a committee that we would publish 360 submissions. Of those 125 were from organisations, 116 were from individuals in favour of changing the act, 116 were from individuals not in favour of changing the act and three took a neutral position. The other submissions are on a database that we have kept and stored. Most of them were form letters, many of them were one-liners and many of them were only a couple of paragraphs. Most of them were short and general statements. So I want to make it clear that all submissions were treated equally and the committee determined itself how we conducted the inquiry.
What did we find out and what did we recommend? This will be a defining day in the social fabric and the history of the nation when it comes to equality for same-sex couples. My committee has strongly recommended that we as a parliament should support the Marriage Equality Amendment Bill.
We have recommended that we should now embark on a process of debating in this parliament changes to the Marriage Act. We have recommended that this bill, with a few amendments, should be passed into law. We have recommended that Senator Hanson-Young's bill before us does need a few amendments. We think that the amendments ought to go to a definition that marriage is now between two people, regardless of their sex, to the exclusion of all others voluntarily entered into for life. We were convinced by the submissions put before us and by the evidence that we heard in Melbourne and Sydney that now is the time for this country to amend the Marriage Act, that now is the time for this country to move on and to accept that same-sex couples do, to the exclusion of all others and in a voluntary nature, decide to live with each other for the rest of their lives because they are so deeply in love with each other. We believe this is the last barrier to end that discrimination against those couples.
We also believe, although some would argue that marriage is a perfect fit between a man and a woman and it is designed for the sole reason of having children, that for a whole lot of people in this country marriage is not that. Marriage is not solely that. Marriage is because they want to live with each other forever because they are in love.
I also place on record my thoughts for Shelley Argent, for the families in this country who do have members of their family who identify as being gay, lesbian or homosexual. As a society we do need to now accept that marriage—and given what marriage once was tens or hundreds of years ago—is made of a different fabric in this country today. I also place this on record for people like Neil Halliday, a friend of mine, and my sister-in-law: I commend this report to you both.
I rise to speak as one of the senators who took part in this inquiry but who signed the dissenting report which has been tabled today. I do so because, although I am a very strong supporter of the Senate committee system and the value of that process, I believe that this inquiry was not one of the Senate committee system's finest moments. This issue has been much raked over by other organs of this parliament, other committees, in the past. I do not believe that this iteration of the same-sex marriage issue has greatly added to the volume of knowledge about this issue.
I was very surprised to read in the majority report such an emphatic affirmation in favour of same-sex marriage. I was surprised because the evidence facing the inquiry was complex and diverse. The starting points of many of the senators who took part in this inquiry were also very diverse, even within similar party groupings in the Senate. So it is surprising and frankly a little disappointing to see that the majority report so emphatically, even stridently, call for the advent of same-sex marriage in Australia. I think that the nuances of the evidence, the subtleties of the arguments, that were put to that inquiry were not fully reflected in the way in which this report has been framed.
The dissenting report makes clear that the tone of the majority report was unnecessarily dismissive of much of the contrary evidence presented to the inquiry and that at some points the report almost becomes proselytising in its tone. I point to the fact that the first of the four recommendations made by the inquiry was a recommendation that all political parties in the parliament should allow their members a conscience vote on this issue. The Senate referred this issue to the Legal and Constitutional Affairs Legislation Committee to consider the merits or otherwise of the bill. For the majority report to recommend how parties should deal with this matter is an outrageously political comment in the course of what ought to have been a dispassionate examination of the evidence before the committee. That recommendation does the Senate committee no credit.
The minority on this committee believed that we cannot advance an argument for so-called equality in marriage when there are so many other areas where most of us would say that it is not appropriate to provide for an equality of access to marriage. We all have limits in this respect, but where those limits should be drawn is unclear from the majority report.
We also believe fundamentally that a recommendation in favour of legislating now for Senator Hanson-Young's bill represents a serious breach of trust by this parliament with the Australian people. In this chamber, the overwhelming majority of us went to the last election promising that our vote would be used on the floor of this chamber to support a traditional definition of marriage as the union of a man and a woman. But today the Australian Labor Party has decided to change its position and, as a consequence, has rushed headlong by at least a majority to embrace a change of policy and provide for that legislation to facilitate that change of policy to be put and passed by the parliament. I do not lightly put aside what I promised to the electorate at the last election. Like the other members elected for the ACT at the last election, I promised to preserve a traditional definition of marriage. But today I find myself the only member representing the ACT who maintains that position. That is not a good way for this parliament to exercise its rights based on the mandate given to us by the Australian people. For that reason alone, I believe it is grossly inappropriate for the parliament to support the recommendation of the committee to pass this legislation.
I rise to speak to this motion to take note of the report by the Senate Legal and Constitutional Affairs Legislation Committee on the Marriage Equality Amendment Bill 2010 that was handed down today. First of all, I would like to thank the committee chair, Senator Crossin, for how this committee inquiry was conducted. This issue has been hotly debated in this place for a number of years. This issue brings about a high level of emotion from all sides in relation to whether we support the idea of equality in law when it comes to marriage. I believe that the committee conducted itself extremely well in those circumstances. I speak in strong favour of the majority report that has been handed down today. It is time that we saw this place rid our federal laws of discrimination against same-sex couples simply because they love each other and happen to be of the same gender. It is time for us to get rid of discrimination in this country against any couple who love each other and want to see their relationship recognised in federal law regardless of their sexuality or gender.
The submissions to this inquiry were overwhelmingly in support of this position. The submissions were thoughtful and personal in many aspects; others were not as personal as they were based on fact and based on basic understanding of fairness under the rule of law. Many of the submissions spoke about how Australians want leadership to rid this country of the discrimination that currently exists within the Marriage Act, to allow the love between two people regardless of their gender, regardless of their sexuality, and to treat them equally.
Through the course of this inquiry, we saw world leaders change their views when it comes to marriage equality. During this inquiry, we saw Barack Obama in the United States change his view to now support marriage equality. When he announced that his position had changed, he spoke about how he had gone through a very long and thoughtful process to come to that position and how, in the end, treating people equally was always going to be better than treating people unequally simply because they happen to be in love with somebody of the same gender. We have seen John Key in New Zealand, as a conservative, change his view to support marriage equality.
I am a strong supporter of the institution of marriage. I believe it is an important institution in our society and that it is why it is underpinned by federal legislation. I believe it gives security and stability to families and to individuals in their partnerships. It helps to build that strong support that ultimately benefits our community and our society. That is my personal view, and I believe that more people, if they want to enter into that commitment, should be legally able to. I also acknowledge that there are various religious groups that want to be able to continue to make decisions about the marriages that they endorse from a religious perspective. Churches and various other religious groups already do this in so many ways. They make decisions on a daily basis about who they will and will not marry and what values they put on recognising, from a religious perspective, their relationships. This bill, particularly with the recommended amendment of strengthening and putting beyond doubt their ability to do that, will not in any way prevent religious organisations from continuing to make their own mark on relationships as they see fit. But over 63 per cent of Australian marriages are conducted by civil celebrants, recognised under federal law, and this committee is saying that, if you love the person you are in a relationship with and you want to see that relationship committed to, that relationship should be able to be recognised under the federal Marriage Act if that is the choice of that couple.
We know that in this place many individual members of parliament have undertaken that journey of change for themselves. We have seen members in this place, as well as in the other, change their view about this issue, and it has been down to the hard work and very honest representations from individuals who have been directly affected by this issue and the current discrimination. Mums and dads have continuously visited our offices across this parliament, particularly over the past two years, and said that they want the same rights for their adult children, regardless of their sexuality or of the person they love. Shelley Argent is one whom Senator Crossin mentioned. She ought to be nominated as Australian mother of the year for her amazing advocacy for her gay son to have equal rights under the law. Geoff Thomas, a Vietnam veteran who fought for the rights of our country, now wants his son to have the right to be equal under Australian law. He also made very passionate representations to members of parliament. But many, many thousands of individuals have written to their members of parliament or to this committee, asking for the discrimination in our current Marriage Act to be removed. Regardless of whom you love and regardless of their gender, if you want to have that relationship recognised in law, this committee is saying that it should happen and that we should rid the law of this discrimination.
The recommendations and the majority report are supported by voices across the chamber. For the first time in this parliament's history, we see members from the Labor Party, the coalition and the Greens agreeing that this type of discrimination must come to an end, must be removed. It is inevitable that we see this reform happen. It is inevitable, but we need true leadership from our leaders in this place to make these recommendations become reality. That means voices within this place feeling free to speak up and state their position, but also the Leader of the Opposition and our Prime Minister recognising that, at the end of the day, giving Australians equal access, equal rights, under the law cannot be a bad thing. It must be a good thing to ensure that everyone is treated equally under the law, regardless of their sexuality or gender. The sky has not fallen in on those countries around the world which have taken the step to rid their laws of discrimination and allowed marriage equality to happen. Indeed, the sun is shining more brightly. We see more people wanting to support the important institution of marriage. We see families having the support to have their relationship recognised equally under the law. We know that young lesbian and gay Australians struggle every day with feeling as though they are second-class citizens. During the inquiry into this bill—and it is referenced in this report—even the former Justice of the High Court Michael Kirby, a remarkable man who rose to the top of the legal profession, stated clearly to the inquiry that he still felt like he was a second-class citizen because the law discriminated— (Time expired)
I am most delighted today to stand here and support the report of the Senate Legal and Constitutional Affairs Legislation Committee on the Marriage Equality Amendment Bill 2010. I would like to thank the chair, all members of the committee and indeed all those who gave evidence and made submissions to this inquiry so that we could have a robust debate.
As the report highlights, marriage is an important institution in our nation. It is an important institution that many couples who are currently excluded from feel strongly that they would like to participate in. It is important to note that it is not just same-sex couples who are excluded from this institution; the exclusion affects people whose biological sex cannot be clearly classified as male or female. It also affects couples who may identify as opposite sex but where one partner is transgender and has been unable to have their gender legally recognised.
It also affects married couples, including some with children, where a partner has transitioned from one gender to another and has been unable to have their gender legally recognised because to do so they would first be required to divorce and break up their family. Such things in this day and age are simply ridiculous.
So many couples gave heartfelt evidence to our committee about their marriages which have not had the legal recognition that they deserve but, nevertheless, the couple have celebrated a lifelong special commitment between themselves and their family and they would like the same legal recognition as other couples.
As this report shows, marriage is far more than a promise of love between two people. It is about public and legal recognition of couples who have a mutual commitment to a shared life. It is also about the recognition of their children and their wider family. If marriage is so important in our society, I simply do not understand why people would want to exclude relationships that are marriage-like in every way from being recognised.
I note that the LGBTI Health Alliance argued in our inquiry:
Marriage is positively associated with a large number of outcomes including better mental and physical health for adults, improved cognitive … physical well-being for children, and greater economic advantage for family members … marriage affords social recognition and thereby improves health, socioeconomic achievement, civic participation and involvement with extended family members …
Personally I have to admit that some of the so-called evidence put forward at our hearings made me somewhat upset and angry. Some anti-marriage-equality advocates attacked what they saw as homosexual lifestyles that they argued were promiscuous, at the same time as excluding the very same people from an institution that is seen to engender stability and commitment for couples. It simply makes no sense. If you are pro marriage, it makes no sense to be anti marriage equality. Allowing all couples to marry, regardless of their sex, sexual orientation or gender identity will only, in my view, strengthen the importance of marriage.
It is important to note that the committee firmly recommended that all parties allow senators in this place a conscience vote on this important matter. I strongly believe in the committee's recommendations that the Marriage Equality Amendment Bill be amended as suggested by our committee report and passed into law.
The coalition authors of the dissenting report of the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the Marriage Equality Amendment Bill 2010 are disappointed that the committee majority has seen fit to recommend support for the bill. Coalition senators believe passage of this bill would represent a major breach of trust by the Australian parliament, the overwhelming majority of whose members were elected at the 2010 federal election on a platform of support for the traditional definition of marriage as being the union of a man and a woman. Coalition senators also found that the conduct of this inquiry and the resultant majority report sells short the well-earned reputation of Senate committee reports that has been carefully nurtured over the years.
Marriage is and has been recognised as a vital societal institution. In recent times, marriage has been seen by some as an institution that confers only rights rather than the countervailing obligations that are always attached to the conferral of rights. Coalition senators noted the concentration on rights as opposed to obligations by submitters favouring change.
The committee during its inquiry heard evidence from a wide range of witnesses. In the main, the evidence of these witnesses fell into two categories: either for or against same-sex marriage. Whilst these views have been in the public domain for a long time, the evidence of both parties shows one thing in common, and that is the issue of the constitutionality of the proposed bill and whether the word 'marriage' as presently defined was intended to extend to same-sex marriage, polygamy and perhaps other, yet to be determined, circumstances.
In this regard, despite the protestations of the Australian Greens, the evidence of former High Court judge Michael Kirby supports the contention that this bill will have potential consequences for the future recognition of other forms of relationships. When questioned at the committee hearing in Sydney, Mr Kirby said:
The question that is before the parliament at the moment is the question of equality for homosexual people. There may be, in some future time, some other question.
In relation to the issue of constitutionality, I personally have a view based on the evidence given to the committee, which is outlined in the coalition senators' report. However, as the issue of marriage equality is divisive and strikes at the heart of our religious, social and cultural roots, it is clear that the parliament should stop wasting its valuable parliamentary time and resources and seriously consider putting the constitutional issue to the test by seeking the views of the Australian people by referendum, which was clearly a matter contemplated by the founding fathers, who provided for such a circumstance by including section 128 in the Constitution. If the Greens and Labor are so sure of public support for same-sex marriage, they should have no issue at all with this.
Despite the constitutional confusion, it can, however, be definitively said that the refusal to allow homosexuals to marry under the Marriage Act is not a breach of their human rights. This is confirmed by the decision of the UN Human Rights Committee, when considering the provisions of the International Covenant on Civil and Political Rights 1966, and by the European Court of Human Rights, when considering the provisions of the European Convention on Human Rights, which have firmly rejected the spurious claim that marriage is a universal human right and that same-sex couples have a right to marry because their mutual commitment is just as strong as that of husbands and wives. The Marriage Equality Amendment Bill 2010 seeks to fundamentally change what is agreed by all parties to be a vital legal and social institution. It is the view of coalition senators on the committee that it would not be prudent for any party to allow its passage without first seeking a mandate from the Australian people. Coalition senators on the committee have therefore recommended that the Senate reject the Marriage Equality Amendment Bill 2010. I seek leave to continue my remarks.