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Legal and Constitutional Affairs Legislation Committee - 21/08/2014 - Recognition of Foreign Marriages Bill 2014

CROOME, Mr Rodney, National Director, Australian Marriage Equality

HORNER, Mr Jed, Policy and Projects Officer, New South Wales Gay and Lesbian Rights Lobby

IRLAM, Mr Corey Brian, Co-convenor, Victorian Gay and Lesbian Rights Lobby

KOONIN, Dr Justin, Co-convenor, New South Wales Gay and Lesbian Rights Lobby

MULCAHY, Mr Sean, Associate Committee Member, Victorian Gay and Lesbian Rights Lobby

Evidence from Mr Horner and Dr Koonin was taken via teleconference—

Committee met at 09:06

CHAIR ( Senator Ian Macdonald ): I declare open this meeting of the Senate Legal and Constitutional Affairs Legislation Committee. The committee is inquiring into the Recognition of Foreign Marriages Bill 2014. The committee proceedings today will follow the program as circulated. These are public proceedings, being broadcast live via the web. The committee may agree to a request to have evidence heard in camera and may determine that certain evidence should be heard in camera.

Witnesses should be aware that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of the evidence given to a committee, and such action may be treated by the Senate as contempt. It is a contempt to give false or misleading evidence to the committee. The committee prefers evidence to be given in public, but under Senate resolutions witnesses have the right to request to be heard in private session. It is important that all witnesses give the committee notice that they intend to ask to give evidence in camera. If a witness objects to answering any question they must state the ground upon which the objection is taken, and the committee will determine whether or not it will insist on an answer.

I welcome the witnesses and thank them for their submissions. The normal practice of Senate committees is to ask for a brief opening statement from those who wish to make one and then proceed to questions. Who would like to start? Perhaps Mr Croome.

Mr Croome : Ten years ago last week, the federal parliament passed amendments to the Marriage Act which made it clear that marriage in Australia would be between a man and a woman and that overseas marriages between members of the same sex would not be recognised in Australian law. Those amendments were in part prompted by two same-sex couples from Melbourne who had a few months earlier been married in Canada under provincial marriage law that allowed same-sex couples to marry and returned to Australia and asked the Federal Court for their marriages to be recognised in Australia. Since then, we know that at least 1,300 Australian same-sex couples have married overseas. That was the figure recorded in the 2011 census. More than likely, there are many more than that. We know that at least 300 of those have been married in New Zealand. Of course, because of the 2004 amendments, the moment that those couples step back through Australian customs they are no longer legally married in the eyes of the Australian government. The absurdity of this situation was highlighted last month when Australian same-sex couples with British passports began to marry in British consulates in this country, and the moment they stepped outside that consulate they were no longer legally married and were considered legal strangers.

This situation affects many more people than simply the couples who marry overseas. It affects their families and it affects their friends. This was highlighted for me recently when I attended the marriage of two of my friends in Auckland. As we know, same-sex couples are allowed to marry in New Zealand. They had wished to marry at home in Hobart but were not able to. So, for the sake of their two children and for the sake of providing those children with the stability, security and affirmation that comes with marriage, they decided that they would marry in New Zealand. I attended the wedding along with 40 of their other friends and colleagues, most of whom were heterosexual, and most of whom work at Cadbury's in Claremont in Hobart. We picked ourselves up, flew to Auckland to see the two men say 'I do' and then flew home. Amongst the attendees at the wedding, the witnesses to those solemn vows, there was a sense of disbelief that we would all go to so much trouble and the couple would spend so much money and go to so much effort for a marriage that was not recognised in their home country. But, of course, we still all did it.

For Australian Marriage Equality, this issue is fundamentally about respect. It is about respecting the solemn vows of a lifelong commitment that couples make under the laws of foreign countries. I believe that anyone who says that they respect the institution of marriage, who respects the benefits that attach to marriage and the responsibilities and the sacrifices, should support the law respecting these marriages by recognising them fully as marriages in Australian law.

As well as important values like respect, this issue is also about practical benefits. If couples who are married overseas were to be recognised in Australian law as married couples, then they would not need to jump through the legal hoops that are attached to the recognition of de facto couples, they would not need to prove their relationship status if they were challenged—as is often the case for same-sex couples, unfortunately—and they would also have all the benefits, recognition, rights and responsibilities that adhere to marriage in Australian law.

In our submission, we also point out some of the inconsistencies that arise because of the failure of Australian law to recognise overseas same-sex marriages—not the least of which, it occurs to me as someone who lives in Tasmania, is that overseas same-sex marriages are recognised already in state law, including the law of my home state, as effectively civil partnerships. In Tasmanian law, they are called deeds of relationship. So a same-sex couple married overseas, like the couple I mentioned earlier, when they return to Tasmania are recognised automatically as being in deeds of relationship. They have all of the same rights as spousal entitlements as married couples in state law. And because of their recognition as registered partners in Tasmania, in effect they have many of the same rights and responsibilities as married couples in federal law because they are recognised automatically as de facto partners—because they are in a state deed of relationship, because they are in a New Zealand marriage. It just seems to me an absurd that that couple, in order to receive some kind of spousal recognition in federal law, have to go through that legal circuit of marrying in New Zealand, being recognised in Tasmanian law and then in effect being recognised in federal law. Wouldn't it make it much simpler and less prone to problems for them simply to be recognised as married, in the Marriage Act, by virtue of their New Zealand marriage?

In our submissions we also talk about the impact of marriage equality overseas, the positive impacts that marriage equality has had in terms of same-sex partners, the children of same-sex partners and the institution of marriage and the positive economic impacts of marriage equality. I will not go into them because they are all quite well spelt out in our submission.

One thing we also deal with that I would like to briefly mentioned is the view of some—and I read this in some of the other submissions that have been made to the inquiry—about the so-called unintended consequences of allowing same-sex couples to marry or recognising overseas same-sex marriages. We deal at length about these so-called unintended consequences, which are mainly negative consequences and are mainly talked about by groups such as the Australian Christian Lobby, but I will just focus on two. One is religious freedom. In its submission the Australian Christian Lobby talks about examples of religious freedom being violated through the recognition of same-sex marriages. It cites six examples in its submission, four of which took place in jurisdictions without marriage equality.

Another one of the unintended consequences is the so-called slippery slope to the recognition of other relationships like polygamous relationships. In the world at the moment marriage equality prevails in almost 20 jurisdictions, the combined population of which is hundreds and hundreds of millions of people, and yet the Australian Christian Lobby can only find one example where there was legal recognition of a polygamous relationship in a country that does not otherwise have that cultural tradition. That was where one man has entered into a relationship with two women in the Netherlands under a so-called cohabitation agreement. A cohabitation agreement of the kind that has been entered into in the Netherlands does not exist in Australia; it is a peculiarly Dutch institution. And what we are talking about is a heterosexual relationship, not a same-sex relationship. We could just as easily say that heterosexual marriage led to the recognition of this polygamous relationship.

Having looked through all of these unintended consequences, it is my view that not only are they not unintended but they are not even consequences of marriage equality. I urge you to look very carefully at these arguments made by the Australian Christian Lobby and others about so-called unintended consequences and to consider as well the views of the Australian people—and this is the final point I will make. Last month the Sydney based research company Crosby/Textor did an in-depth survey of a thousand Australians on their attitudes to same-sex marriage. It found not only that 72 per cent of Australians support marriage equality—or, in the words of the question, allowing same-sex couples to marry—but also that these so-called unintended consequences do not resonate with the Australian people. It found that only 22 per cent of Australians believed that same-sex marriage would devalue traditional marriages; that only 17 per cent of Australians believed that there is a slippery slope that would lead to issues like polygamy; and that only 16 per cent of Australians believed that allowing same-sex marriage will lead to some people losing their religious freedoms. The Australian Christian lobby may fear these unintended consequences, but clearly the Australian people do not. Thank you.

CHAIR: Mr Mulcahy or Mr Irlam, do either of you wish to make an opening statement? No? Or our friends on the phone from New South Wales?

Dr Koonin : Happy to move to questions.

Senator JACINTA COLLINS: I have possibly only one question: what would you submit has changed since the Senate last dealt with this matter?

Mr Croome : What has changed is that an increasing number of Australian couples are marrying overseas, particularly in jurisdictions that are very similar to Australia's and where a large number of Australians reside, and that includes New Zealand and Britain. So, the problem that already existed has magnified, because New Zealand is close, and many couples are able to travel there to marry, much more easily than they can travel to the United States or Canada or Western Europe. And Australians with British passports can marry in consulates, so they can actually marry here—it is much easier for them. So, the problem has been magnified. What has not changed, of course, is the indignity of not having your solemn vows of lifelong commitment recognised when you return home.

Senator JACINTA COLLINS: Do those jurisdictions you referred to provide different domestic as opposed to international legislative arrangements?

Mr Croome : I am not sure what you mean.

Senator JACINTA COLLINS: New Zealand, for instance, recognises same-sex marriage as well as presumably recognising same-sex marriages that have occurred overseas.

Mr Croome : Yes.

Senator JACINTA COLLINS: Whereas what is being proposed here is that we progress with recognition of international same-sex marriages, which would be different to our domestic arrangements.

Mr Croome : Yes. There are two points, I guess. It is not unprecedented. There are other countries that recognise in various ways overseas same-sex marriages without allowing them to be solemnised under their own law. In Israel, courts can allow overseas same-sex marriages to be recognised in domestic law upon application.

Senator JACINTA COLLINS: In a different way to a civil union?

Mr Croome : Yes, I understand that to be the case. And, as we have said in our submission, under Australian law some foreign marriages that would not be solemnised in Australia are recognised for various purposes, including polygamous marriages.

Senator HANSON-YOUNG: I guess my question goes on from Senator Collins's question: what do you say to people who say, 'If we want this, why don't we just have full marriage equality and then deal with everything at once'?

Mr Croome : Yes! Why don't we? Of course. This would be dealt with by amendments to the Marriage Act that would allow same-sex couples to marry in Australia. But to those who say, 'Why don't we wait until then?' or 'What's the point of dealing with this separately?' I guess I have two responses. Firstly, we can deal with this separately; there are no constitutional barriers to dealing with this issue. One of the reasons, certainly in my experience, that same-sex couples marry overseas is that they have a sense of urgency. The partners might be ageing and wish to marry before they die, or they may have children to whom they wish to provide the benefits of marriage before those children grow up, which was the case with the couple I mentioned earlier who married in Auckland. They would much prefer to marry under Australian law, but they cannot wait. And I think we should respect the fact that they cannot wait and that it is urgent for them to marry. We should not be saying to them, 'You need to wait until the Australian parliament works its way towards this larger reform.' Why wouldn't we say to them: 'You have gone to the trouble and you obviously have important reasons for marrying overseas. We will respect that. You are in a legal marriage. We will respect that'?

I do get a bit emotional on this point, because I know same-sex partners for whom there was nothing more important than tying the knot. I know them at home in Tasmania, where they desperately wanted to marry under state laws that did not pass. And then federal reform failed again, and they have since died, and they will never have that chance. There is nothing that can bring that back. So, if couples feel that need and they marry overseas, I think we should respect that and give them the respect that their vows deserve.

Dr Koonin : Perhaps I could add a brief comment to what Mr Croome has already said. This bill has merits in its own rights for the reasons Mr Croome describes. Our position on full marriage equality is well known, and if and when a bill came before parliament again I think it would be clear that we would support it. Nevertheless, that is not a reason to provide support to those couples who have married overseas. We were asked to comment on whether we support this bill, and yes we do support this bill. And if another bill comes before parliament we will very likely support it again.

CHAIR: We are aware from your submission, of course, that you do support this. But thanks for that. Mr Irlam?

Mr Irlam : Perhaps I could just go to some practical reasons that we should do this bill now. Looking at submission 33 from the National LGBTI Health Alliance, I just want to read a paragraph from Appendix B:

Our foreign marriage was not recognised for my Australian partner visa application and thus we were held to a more rigorous standard than man-woman couples, having to provide extensive proof of a de facto relationship. For example, this included providing extensive documentation that we had lived together for 2 years, whereas man-woman married couples were exempt from this requirement. This discriminatory experience was distressing for me and my husband, and made us question our decision to move to Australia.

And they go on to talk about being highly skilled and recognised in their field—we had a bit of a brain drain from that.

Outside of the great state of Tasmania, where overseas marriages are recognised through the state relationships scheme, we have a situation—for the whole mainland—whereby somebody who enters into an overseas same-sex marriage does not have an avenue to be recognised automatically in Australian law, either at a state level or at a federal level. That is a bit of a history lesson that you all probably went through when we did the 2008 law reforms. We created the definition of 'de fact partner'. You can enter into a de facto partnership either by a registered relationship or through a de facto relationship. The only recognised registered relationships are state based schemes, and the only option for a couple living in Tasmania is to be in an overseas marriage or any other form of relationship register—recognised through Tasmania, and it goes up to federal law.

So, given that the government is, rightly so, very heavy on red tape and wants to reduce red tape, why are we making these couples who have already proven their relationship to have to dig up the last two years of their life to be able to prove that de facto status? Why aren't we just recognising these as marriages so that they can have that access to immigration, so they can have that automatic recognition under state and territory laws because they do not have to (a) live under one roof, (b) be together for a period of time, (c) collect a whole bunch of documentation, (d) prove that they were renting from a certain date so that they can establish the start point of their relationship? The whole reason Australia has gone through the de facto and then registered relationships and marriages to regulate is so that it is an easier process for them, and we are just making it harder for same-sex couples.

CHAIR: Could you just repeat what you said about the visa issue?

Mr Irlam : Sure. So under a visa entry—

CHAIR: Into Australia?

Mr Irlam : So one couple might be from the UK and the other couple might be from Australia.

CHAIR: From where?

Mr Irlam : From Australia, so one couple is migrating under a spousal visa entering Australia.

Senator CAROL BROWN: You mean one of the couple?

Mr Irlam : One partner of the couple, sorry. Thank you. The spousal visa requirements if you are in a registered relationship or a marriage are waived of any time limit. If you are in a de facto relationship or the law only recognises you as a de facto relationship, which is how the law would treat these same-sex couples who are married overseas, they have to be together for two years and have to be able to prove the existence of the relationship. It is a much higher burden that they are placed with than a married couple.

Senator HANSON-YOUNG: What do you think the response from the Australian community broadly is on this? We know that polls are suggesting that more and more people are becoming supporters of overall marriage equality. If you read a number of the submissions to this inquiry you would be led to believe that somehow Australians have a fear of the slippery slope.

Mr Croome : As I said, the research results do not bear that out. There is simply no fear there of the so-called unintended consequences. The research I mentioned before from Crosby/Textor has a statistical marginal error of plus or minus two per cent. They asked their 1,000 respondents: do you believe the institution of marriage would be under threat if same-sex couples were allowed to marry? And a tiny minority said yes. They asked: do you believe that children need both a mother and a father and legalising same-sex marriage would break that down? Again, a tiny minority agreed. They asked: do you believe same-sex marriages will devalue traditional marriages? A tiny minority agreed. As I said earlier, they asked: do you believe that religious freedoms would be at stake or it is a slippery slope? And a tiny minority agreed. The Australian people do not believe that performing same-sex marriages in Australia or recognising them from overseas would have any of the unintended consequences that groups like the Australian Christian Lobby talk about.

I understand there are people of faith who fear what this reform might mean because it is something that has not come to Australia yet. I guess we would all repeat our assurance that we have given again and again that we believe that ministers of religion should not be compelled to marry same-sex couples under any circumstances. Faith communities should not be forced to recognise—

CHAIR: I am glad you raised that because I was going to ask that before, although it is not particularly germane to our inquiry. Isn't that then discriminatory?

Mr Irlam : I do not think it is. I think that the faith based community has always been separated in the Marriage Act to say that, if you are entering into a civil ceremony, you have to do this set of words and do this legal hoop and, if you are in a religious ceremony, you have to follow your doctrines.

CHAIR: If a same-sex couple go to a church and say, 'I want you to marry me,' and the church says: 'No, I do not want to do that. It is contrary to our beliefs.' They would not get into trouble with the discrimination commissioner under the antidiscrimination laws?

Mr Irlam : Again there is equal treatment provided in the Marriage Act to enter into a marriage either through a civil ceremony or through a religious ceremony based on the doctrines of that religion.

CHAIR: But that is not answering my question.

Mr Irlam : Likewise, there are exemptions in the antidiscrimination law based on the doctrines of that religion. So what I would say to you is to allow religions that do allow it under their doctrine—and there are some out there; Quakers et cetera—but not require anybody to have to do something that is against that doctrine. The Marriage Act has always had a very strong—

CHAIR: You are saying to me that if a same-sex couple went to a church and said, 'I want you to marry me,' and the church said no, they would not be in default of some law or provision in Australia?

Mr Irlam : That is correct.

Dr Koonin : I refer you to section 37 of the Sex Discrimination Act. Section 37(d) grants that nothing in the act affects:

any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

So I think the exemption for religious practices is quite clear under federal anti-discrimination law.

Senator CAROL BROWN: I would suggest that it already happens with heterosexual marriages as well.

Mr Croome : Exactly. There is currently a provision in the Marriage Act that means that religious ministers do not have to solemnise any marriages they do not want to solemnise. A Catholic priest, as a celebrant, would not have to marry two people who were divorced or remarrying.

CHAIR: So hypothetically, if it were legal, if all the churches collectively decided they were not going to do it, the only option then is a civil marriage?

Senator HANSON-YOUNG: Which the majority of marriages in Australia are, right?

Mr Croome : Yes. The only option would be a civil marriage. Under the legislation as it currently exists, plus the extra safeguards for faith communities that have been proposed in all of the bills that have been put forward, there would be no possibility that a church or a faith community would be forced to solemnise—no, not at all. That provision, because it was the will of parliament and it was in the Marriage Act, would override any anti-discrimination provisions.

Mr Irlam : Can I just emphasise that I would strongly deter the Senate from legislating to prevent some of those religions who do want to marry same-sex couples from being able to do so, just because the majority of them do not.

CHAIR: That was not the question. It was a hypothetical, which as a good chairman I should not have allowed, but it was my own, so I did.

Senator JACINTA COLLINS: I will remember that principle!

Senator HANSON-YOUNG: That was actually the question I was going to go to next, Chair, so I am okay with that. What I want to get to—Mr Croome, you did mention this—is that it is not just a situation of people travelling overseas. We also now have a circumstance where people are marrying in consulates. This is all fairly new and relatively recent. Do we have any statistics about the number of couples who are expressing interest in marrying in consulates, or who have? What information is available to couples so they know that, even if they do that, it does not necessarily at the moment give legal status to that relationship?

Mr Croome : We know that about 300 Australian same-sex couples have gone to the trouble of marrying in New Zealand. That was in the first year or so, so we would expect that at least that number of same-sex couples would marry in British consulates because it is much more convenient and we know that many Australians have British passports or a British origin. We are talking about many hundreds of couples in the first year. I know of many already.

It is a very good point that you raise about letting people know exactly what this means. One issue that has come up for us is we have had contact from same-sex couples who have been married under British law or in other countries and have said: 'When we fill out an official Australian form, should we say that we are married or not? We believe we are married and we took those vows, but is that a false declaration? Are we breaking the law?' I do not know if there is any information out there for those couples about that situation.

CHAIR: What? A British couple?

Mr Croome : An Australian couple married under British law filling out an Australian form.

CHAIR: How can they be an Australian couple if they are married under British law?

Mr Croome : They have got British passports, but they are Australian citizens or Australian residents.

Unidentified speaker: Dual citizenship.

CHAIR: British citizens and Australian citizens.

Mr Croome : Yes. If they fill out an Australian form saying they are married, is that a false declaration? All of these problems come up and there is no information there except what we may be able to provide. There is no information from the Australian government about what it means.

Another difficult situation that has arisen since the advent of British consular marriages is that there are a number of couples that we are aware of who have British passports who have applied to marry in British consulates—this was in Sydney and in Brisbane—only to discover they could not because they were in state registered relationships. Australian state registered relationships are recognised under the British Civil Partnership Act as British civil partnerships and you cannot be in a British marriage if you are in a British civil partnership. So they are faced with a choice of either staying in their Australian state civil partnership or registered relationship and having, through that, a set of entitlements that accrue under Australian law or dissolving that so they can enter into a British marriage, which is only recognised as a state registered relationship in one state, Tasmania, and not in any of the others. No-one should have to face the choice of having substantive rights through having an Australian certificate or having the dignity and respect of a marriage but none of the rights. Those couples are being forced to make that choice right now. An easy solution to that would be to recognise overseas same-sex marriages.

Mr Irlam : It is not just about the symbolism of the British side of it; it is also about a couple who perhaps live in the UK for one year and then move to Australia. Do they have access under that UK scheme because they are under a UK marriage or do they have to flip-flop every time they move countries, because they are travelling? These are practical examples of the problems caused by this bill.

I think the secretariat beat me to the bullet to point out the Attorney-General's Department submission on the issue of the wording in the bill in relation to the consulate scenario. I would urge the committee to think about an amendment to the bill to address that issue and a number of others they raise.

Senator CAROL BROWN: First of all, do you have a copy of the survey that you have been quoting from?

Mr Croome : Yes.

Senator CAROL BROWN: Can we have that table for the committee?

Mr Croome : Yes.

CHAIR: Who was it done for? Who commissioned it?

Mr Croome : Australian Marriage Equality commissioned it from Crosby Textor. I can provide—

CHAIR: That is you?

Mr Croome : Yes, that is us.

CHAIR: It is up to you whether you make it available.

Mr Croome : I am happy to make it available so that you can see all the stats.

CHAIR: Thanks for that.

Senator CAROL BROWN: What improvements would you recommend to the bill to cover off some of the concerns that you have already raised?

Mr Irlam : Sure, there are four quick things—actually, five now because you have consulate definitions. There is also the issue with the wording around 'solemnised in a foreign country'. Some states and territories of that country may be the governing body for marriage—for example, the United States. So you might want to use language like 'solemnised under foreign law' or 'solemnised outside of Australia'. That would address both the consulate issue and the state based marriage laws in other countries. There is a little bit of a question challenge, if you like, around the High Court case last year recognising that somebody might not be a man or a woman in law, and using the terms, 'man and man' and 'woman and woman' in the definition may not be inclusive of intersex and trans people. I am not a legal expert, but I urge you to seek advice around the best set of words or to make a clarification that it is meant to be inclusive. It could be as simple as saying 'any two people'.

CHAIR: We have a witness who will probably address that issue. Thank you.

Mr Irlam : In 88B(4) there is a reference to section 5(1) of the act, which refers to the definition of man and woman, so you might want to look at repealing 88B(4), otherwise, even though you remove 88EA, it still refers back to a definition of man and woman governing the recognition of foreign marriage, therefore making the bill null and void. That is it in bullet points.

Senator CAROL BROWN: Thank you. Just the way I like it.

Dr Koonin : I would like to make a small comment on 88B. It seems that it would be necessary to repeal 88B(4) an order for the bill not to be null and void. You might want to check if that is in fact the position. I am not a lawyer, but is that enough to render this bill operational? Arguably, subsection 5(1) could still apply.

Senator CAROL BROWN: Thank you. I would now like to go to the slippery slope argument that you briefly mentioned, Mr Croome, in your opening statement. There is mention, obviously, through some of the submissions that we will be talking about today. You already said to the committee that there are countries that do not allow same-sex marriage under their domestic law but nevertheless recognise foreign same-sex marriages. Are you aware of any evidence that this recognition has impacted on the validity of marriage? In a country that does not allow same-sex marriage but recognises foreign same-sex marriage, what impact has there been on society?

Mr Croome : I gave the example of Israel. I am not aware of any change to the definition of marriage in Israel or the estimation in which that institution is held. I am sure if you were to invite representatives of that country—where I think marriages are solemnised to a high degree still in a religious context—I think they would say that marriage continues to go on as it always has.

Mr Irlam : Could I just also point out that every single lesbian, gay, bisexual, transgender and intersex reform for the last 30 years we have been having this discussion on things always has an attack of slippery slope attached to it, and not one of those predictions have ever come true in those 30 years.

Senator CAROL BROWN: I have one last question, as many of the things that I wanted to ask have been answered. A number of the submissions that oppose this legislation claim that the recognition of same-sex marriage is harmful and will have harmful impact on families and children. Your supplementary submission highlights some of the evidence that refutes this argument, but I particularly want to go to the fact that a number of submissions cite research by Professor Patrick Parkinson entitled For Kid's Sake. Can you expand on your response to this interpretation of Professor Parkinson's research?

Mr Croome : Professor Parkinson's research was issued a couple of years ago, I think. Professor Parkinson did not do any actual hands-on research himself; he reviewed the research that was available. If we look at the studies that he looked at, what we find is that children have disadvantageous parenting outcomes if there is discontinuity or instability in their upbringing, which can be occasioned by any number of different things—divorce of parents or whatever it might be. A small number of studies that he cited included some children raised at some point by same-sex couples. You will see that in some cases those children experienced disruption in their upbringing because their parents may have been in a heterosexual relationship and then they broke up and their parent entered a same-sex relationship. But it was not the fact that it was a same-sex relationship that was the issue here; it was the discontinuity and disruption in their upbringing.

I believe that what his study shows is that instability is an issue for children—not same-sex parenting. Same-sex parents can provide just as much stability and continuity in upbringing as anyone else and, if that stability and continuity is there, the outcomes are the same. All of the other studies into this issue which we deal with to some extent in our submission show the same thing—that the parenting outcomes of children raised by same-sex couples are the same—if not on some measures, better—than children raised by opposite-sex couples. Like I said, the issue that Patrick Parkinson was actually looking at was instability in upbringing not family formation.

Mr Irlam : Can I also just refer the committee to submission No. 30 from the Australian Psychological Society and their opening conclusion paragraph that refers to Professor Parkinson's study and says:

Furthermore, there is evidence to indicate the value of marriage in providing stability to children (Parkinson, 2011). If we accept such evidence of the benefits of marriage in supporting mental health and family stability, depriving some families of those benefits clearly amounts to discrimination.

If it is good enough that the heterosexual norm should be that a marriage relationship is the best environment to raise a child then it is good enough to ensure that these children who you are not talking about today, who you have no jurisdictional governance over because it is a state law, who are created, who are legally recognised and who exist in same-sex families, should be provided with the exact same best fit model that others are arguing for.

CHAIR: We are talking about marriage as it is currently defined.

Mr Irlam : Based on what principles that constitute the best environment?

CHAIR: I do not know. I am not making the argument, but the—

Mr Horner : There is the recent report by the Australian Institute of Family Studies which provides a comprehensive overview of research in this area. I am happy to provide that to the committee. Again, I would stress the points that Mr Croome and Mr Irlam have already made about children in same-sex couples achieving the same outcomes if not more favourable ones. Again, it is from a reputable body. It is worth consulting in relation to some of the questions that Professor Parkinson raises.

CHAIR: We are running out of time. Can I just raise a couple of issues very quickly. What do you say to the argument that, if this bill is passed, you then create a discrimination between same-sex couples in Australia, who cannot get married—

Mr Irlam : Politics is incremental.

CHAIR: So you are saying: 'Fix it in Australia.' That is your answer?

Mr Irlam : We will get there.

CHAIR: Yes, but that is not quite the question. If this bill is passed, there is a discrimination set up.

Mr Irlam : Discrimination exists today where those couples are not recognised in anything other than de facto relationships. It is a step forwards in the process.

Unidentified speaker: I would also refer back to Dr Koonin's statement that this reform that we are talking about today, this bill, stands on its own merits. It does have its own merits in terms of recognising these existing marriages. We are not talking about creating new marriages; we are just recognising existing marriages. This creates a distinction, of course, but we need to be focusing on the merits of this particular bill.

CHAIR: Mr Croome, I think it was you who made the statement that one of your concerns is that solemn vows of lifelong commitment by those who are married overseas are not recognised. This is a personal view, but quite frankly I do not care whether anyone recognises my solemn vows of lifelong commitment to my wife. It is a matter between me and my wife, and what other people recognise or do not recognise is not of any interest to me at all. What would you say to that?

Mr Croome : Would you feel the same way if you went to New Zealand and when you got there you and your wife, after your long, happy marriage, were considered legal strangers? Would that affect you?

CHAIR: If there was some tangible way we were treated as strangers, but I cannot—

Mr Croome : If you did not have any marital rights in New Zealand, if people did not regard you as husband and wife?

CHAIR: As I say, this is a very personal view, but I could not care less what other people—

Mr Croome : If people questioned your right to visit her in hospital and make medical decisions if she fell ill?

Senator CAROL BROWN: I think the point is, though, that people treat marriage differently. For others it is something that they need to do and want to do with someone they love, and they want it recognised. That is the point of getting married.

Mr Irlam : It is. To get a feeling for what it is like, I will give you a challenge for a week. I want you to go to the party circuit with your wife and I want you to introduce her as your girlfriend to people you do not know and see what the reaction is and how you feel about the differences.

CHAIR: There would be genuine disbelief that someone as old as me could have a girlfriend! But, anyhow, I take your point.

Mr Irlam : Why would there be any difference to the genuine disbelief that a same-sex couple of your same age could only be boyfriends, could not be husbands? What is the difference?

CHAIR: I am not quite sure that I am following.

Mr Irlam : If you believe that there would be genuine disbelief that somebody your age could have a girlfriend, I would argue to you there is the same genuine disbelief that a married couple recognised overseas who have been together for 40 years, who happen to be in a same-sex relationship, could genuinely be referred to as just boyfriends.

CHAIR: I do not agree with that. The other comment you made was about the benefits, responsibilities and sacrifices that married people have that people in a civil union do not have. Can you just explain again to me, and I suspect it has been mentioned, just what benefits, responsibilities and sacrifices do married people have that those in a civil, legal union do not have?

Mr Croome : First, of course, I would have to say that the quality of one's relationship is not determined by whether one is married or not, and I did not mean to suggest that. Relationships can involve deep commitment and sacrifice and all the rest regardless of whether there is a marriage certificate. But there are certain associations and cultural expectations associated with marriage that you are making a commitment for life, which is not a commitment that you make if you enter a registered relationship or a civil union. Marriage provides us with a universal language of love and commitment that everyone understands, which is not the case with a civil union. Everyone understands what a husband is, what a wife is. Everyone understands what a—

CHAIR: But there are many heterosexual couples—I mean we go through periods, it seems to be changing a bit now again, but in the eighties, nineties, early 2000s, there were a lot of heterosexual couples—that never bothered to get married and did not really believe in it, but they had children, had a lifelong relationship and they were happy. Whether they were introduced as my girlfriend or my partner or what did not really matter to them. They knew what they were like with each other and that was it.

Mr Croome : Like I said, I am not suggesting that their relationship is lesser. I guess the final point I would make about them is that they had a choice.

CHAIR: Yes, okay, well that is—

Senator CAROL BROWN: The other part of that question, really, is the effect on same-sex couples that cannot get married. And, secondly, those that have been married in other countries are not recognised, and the effect on them. That, I think, is a much more important question.

CHAIR: Mr Mulcahy, you wanted to say something.

Mr Mulcahy : As to the practical benefits that recognition of overseas same-sex marriages would provide, I draw the committee back to the earlier comments by Mr Irlam about spousal visas. If overseas same-sex marriages are not recognised as marriages under federal law, a couple that undergoes an overseas same-sex marriage would then—if they were wishing to obtain the spousal visa—have to prove that they are in a de facto relationship under federal law. Now this would mean that they would have to go through, as Mr Irlam pointed out, all of the evidential burdens of proving that they are in a de facto relationship. If we recognise overseas same-sex marriages as marriages under Australian federal law, then they will be able to obtain a spousal visa without having to go through the evidential burden of proving that they are, in fact, in a relationship. So that is one clear area where recognition of overseas same-sex marriages provides a strong practical benefit for couples that have done so.

Mr Irlam : I also mentioned that there are a number of state laws.

CHAIR: I am not familiar with these laws. But if you have a civil union, don't you get the equivalent of a marriage certificate, which you would simply produce to the immigration officials?

Mr Mulcahy : If you have a civil union in Australia?


Mr Mulcahy : Yes. The problem is that you cannot enter into a civil union in Australia if you are already married or vice versa. Somebody who is going overseas to the UK, for example, as Rodney pointed out earlier, because the UK scheme recognises the Australian based state schemes as a civil partnership under UK law. That is the first point. Second point: UK law of same-sex marriages will not allow you to enter into a same-sex marriage if you are under a recognised UK civil partnership. Yes? Therefore, if you have a reason—because your partner is from the UK, because you are travelling over there, because you are going to work there for three months, whatever it might be—to enter into that UK marriage, beyond just the symbolism of somebody wanting to recognise it as a marriage, you would not be able to because of that recognition in Australian law. On the flip side, to remove yourself from the register in Australia will mean that you do not have any access to automatic entitlements under Australian law. So you are dammed if you do, dammed if you don't, depending on your situation and how that changes.

Mr Irlam : The issue here, Senator, is that basically, when we amended the 85 federal laws, on the legal statutes it is not much of a problem; it is all good because we are recognising everybody equally as de facto partners, defined as a registered relationship or a de facto relationship. When you then start getting into the regulations for those particular laws, there are a series of additional burdens that are attached to a de facto partnership that are not attached to a registered relationship.

CHAIR: Okay. Not that I disbelieve you, but I will just ask the secretary to put some questions on notice for the immigration department and perhaps send them the transcript of your evidence and see if they have a comment to make.

Mr Irlam : Yes, and I might do a supplementary submission to you with some things to help with that.

CHAIR: Okay. You are a lawyer, are you?

Mr Irlam : No, I was just intimately involved in the 85 law reform changes.

CHAIR: Okay. We really are over time, but does anyone have any burning final questions? Sydney people: did you want to say anything new that has not been said?

Dr Koonin : I think we have said enough. Thank you for your time, senators.

CHAIR: Thank you all for your—

Mr Irlam : Senator, can I just say one last thing to you all?

CHAIR: Yes, sure.

Mr Irlam : As you think about writing your report and making your recommendations, I want you to think of your elderly mother and whether she was at your wedding, and think of the elderly mothers of all the same-sex couples who want to make sure they are there for their weddings as well.

CHAIR: But can't they attend the civil union?

Mr Irlam : Is it a marriage? Is it a thing that an 86-year-old woman understands?


Mr Irlam : Is it the social norm? If we look at all the sociology reports, they say people who are married live longer together, they create stronger bonds with their family and their community, it is socially understood internationally. Civil unions are proven not to be understood internationally. You do not access benefits.

Senator HANSON-YOUNG: Apart from the fact that we do not have [inaudible] civil unions.

Mr Croome : Which is why so many countries have moved on from civil unions and now allow marriage equality. There is only one state in Australia where you can actually enter a civil union through an official ceremony that a mother could attend, and that is Tasmania. None of the others do.

Mr Irlam : And, if you live in WA, the Northern Territory or South Australia, you do not have civil unions, so you do not have the option.

CHAIR: This is not a debate; it is an inquiry. But attitudes do change. My friends whom I was talking about before, who live together and have children, never got married. Coming from a small country town in North Queensland 30 years ago, I thought that was awful! Thirty years later, they are there and happier perhaps than even my wife and I.

Mr Irlam : Ten years ago, less than 40 per cent of Australians supported same-sex marriage. Now it is 72 per cent. Things do change.

CHAIR: Well—we are politicians; we understand polls and the questions you ask and the impact of them! Anyhow. Thank you very, very much. I found that useful. I am sure the rest of the committee has as well.

Mr Irlam : Thanks.