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Wednesday, 16 June 2004
Page: 30507


Ms ROXON (1:30 PM) —Let me say from the outset in this debate that Labor respects and acknowledges that happy and loving relationships can be found in many forms in our diverse community. No one section of our community—families with a mum and a dad, single-parent families, blended families or couples, whether gay or straight—has a monopoly on commitment and no one type of family or relationship has a monopoly on the desire for stable and supportive relationships.

We know that commitment, care, companionship and a desire for happiness can go across all different forms of families in Australia. So it is unfortunate that much of the debate that has surrounded the Marriage Legislation Amendment Bill 2004, although having little to do with the actual terms of the bill, has often smacked of intolerance and prejudice. This may have been the Prime Minister's intention, but I do not believe that this reflects the thinking of most Australians. In fact, most of us know how hard it is to find a life partner and happiness and how precious it is to nurture and support those relationships once we do.

What I think has been lost in this debate about changes to the Marriage Act is that many people in Australia live in long-term, committed relationships but are not married. In fact, nearly one-third of people over the age of 15 are not married, nor have they ever been married, but many of those five million people are in long-term relationships. Australians not only tolerate but welcome, support and barely bat an eyelid at de facto couples living in our community. With very few exceptions, de facto couples and their families get the rights and recognition of their married neighbours. Clearly marriage has remained the choice of the majority of Australians, but it is not the only form of relationship recognised or supported in our community.

Many thousands of Australian couples each year choose to get married by making a public declaration—recognised by our state and often undertaken by a service in church—of love and commitment between each other. In 2001 there were 103,100 marriages registered across Australia, with more than half being performed by civil celebrants and 47 per cent being performed by ministers of religion. Sadly, we also know that the likelihood of divorce is increasing, with 55,300 divorces being registered in that same year of 2001—the highest number in 20 years.

Despite these changing trends in marriage and divorce rates, marriage has remained a robust institution in Australia. In our country marriage has always been a heterosexual institution and has always been recognised as such by our common law. To very many Australians marriage is a vital social and religious institution and has particular significance for its structural role in the raising of a family. It must be acknowledged that these strong views in our community are an important reason for retaining marriage as it is.

Unlike in some other countries, there has been very little debate in Australia so far about the need to change marriage in any way. In fact, most discussion and correspondence to public representatives like me tend to focus on better ways to support families of whatever nature, on how to encourage people to get married and on ideas people have on keeping relationships intact. There is much more focus on tolerance and the removal of discrimination than there is on the nature of marriage.

It was not until this bill was proposed by the government that calls were made more widely for marriage to be broadened to encompass same-sex couples. There has not been extensive community debate or consultation about this issue and it would be fair to say that there are many Australians who strongly object to the idea. There is no consensus in the gay and lesbian community about it either. In truth, though, I think this bill is not driven by a belief that marriage is an institution under attack but more by the Prime Minister's determination to shore up his leadership by responding to a demand from 30 backbenchers who may otherwise have caused trouble for him. He clearly wanted to make a symbolic statement about his family values rather than put money or much needed support into families who might otherwise be worthy of his attention in upholding his ideas of family values. Yet all he is effectively doing with this bill is spelling out what is already part of our law in a gesture that was crafted to offend members of the gay and lesbian community.

In contrast, Labor has a strong record of delivering same-sex law reforms that actually benefit gay and lesbian individuals and couples at the state level and is committed to doing so federally if it wins the election. Labor is proud of the work it has undertaken within the party, particularly with Rainbow Labor, and with the broader community over the last year. We have developed a policy that commits Labor to comprehensive, long-term reform in recognising same-sex couples. It is not our intention, and it was not our intention prior to the introduction of this bill, to alter the meaning of marriage; rather, we want to take up the more pressing issues raised with us as priorities and pursue reform to ensure that same-sex couples get the recognition of heterosexual de facto couples. These broader reforms will be the subject of an amendment to be moved in the consideration in detail stage by my colleague, the member for Sydney, who has a passionate commitment to justice and fair treatment for same-sex couples.

Labor's commitment to a full audit of Commonwealth legislation and the removal of discriminatory provisions across areas such as superannuation, taxation, veterans affairs, social security and much more is the most comprehensive package of same-sex reforms ever put forward by a major party. We are also committed to legislating anti-vilification and anti-harassment measures. The Howard government has no such plan and no such intention to address the discrimination that happens in everyday life for same-sex couples. The Howard government is happy to put forward this sort of legislation in a manner that might actually make prejudice and harassment worse rather than better—a promotion of intolerance which surely would not be the aim of any real leader in our community.

Labor does not want a bill that in the main spells out the existing common law, perhaps unnecessarily, and does not want this bill to divert from the broader cause of promoting tolerance in our community and preventing discrimination against same-sex couples. To fight on the issue of radically changing the definition of marriage when it is so contested in the community would risk setting back the cause of same-sex law reform extensively.

In relation to intercountry adoption, the government seeks to change the current law and make the Commonwealth responsible for an issue that, to date, it has not had within its purview. Accordingly, Labor will not support that part of the Marriage Legislation Amendment Bill 2004, and I will move an amendment during the consideration in detail stage to remove schedule 2—the schedule which deals with intercountry adoptions—from this bill.

The government has also indicated that it is prepared to look at the issue of equal treatment for superannuation benefits for same-sex couples, a longstanding policy of the Labor Party, and we welcome the government's conversion to this long-overdue cause. We question, though, why this part of the government's announced changes is not part of the bill before us in the House being debated today. Why is it that we still have not seen any proposed legislation dealing with superannuation? Why is it still in the drafting stage and not being introduced alongside the bill that we are debating? The government has already said its changes will go beyond same-sex couples to those in interdependent relationships, and we question whether this is causing some of the delay and why it is that the government cannot adopt the simple change that we have proposed for so long.

For several years, the government have refused to let parliament consider and debate a bill put forward by the Labor member for Grayndler in relation to giving same-sex couples equal treatment under superannuation legislation. The Labor Party first introduced a private member's bill on this matter in 1998, six years ago, and the government have never let it be debated. Despite their recent announcement that they would support this policy change, the government again voted against this bill on 3 June 2004. My colleagues the members for Melbourne Ports and for Grayndler will move amendments in the consideration in detail stage of the debate—a fitting recognition of the work that they and others have done in the party over many years to bring this issue to public attention.

I will now turn to the provisions of the bill in detail and move my second reading amendment, making clear Labor's position on this bill and on same-sex law reform issues more generally. The provisions of the bill, as I have already flagged, deal with three major changes: firstly, to insert a definition of marriage that states that marriage is between a man and woman; secondly, to prohibit the recognition of foreign same-sex marriages in Australia; and, thirdly, to prohibit same-sex couples from adopting children from overseas. I move:

That all words after “That” be omitted with a view to substituting the following words:

“whilst not declining to give the Bill a second reading the House:

(1) opposes the proposals related to inter-country adoption as unwarranted and unjust interference by the Commonwealth into an area already tightly regulated by States and Territories and within their legislative responsibility; and

(2) notes Labor's strong stance against discrimination on the grounds of sexuality, and, in particular, Labor's;

(a) recognition and acknowledgement of same sex couples and their right to be full and active members of our community, free from discrimination and vilification;

(b) commitment to an audit of all Commonwealth legislation following which legislative measures that are discriminatory on the basis of sexuality will be removed, thus ensuring equivalent status for same sex couples and de facto heterosexual couples; and

(3) particularly notes Labor's long-standing commitment to removing discrimination against same sex couples by implementing measures already proposed by Labor to remove discrimination in the area of superannuation”.

This amendment clearly sets out Labor's view on each of these matters.

Let me turn first to the definition of marriage. It is clear that the first provision of this bill expressly clarifies and confirms the existing common-law position that Australia recognises the institution of marriage as being a union between a man and a woman. This country has never accepted the notion, either through the parliament or through the courts, that marriage is anything other than an institution recognising the union of a man and a woman. Currently, the Marriage Act 1961 does not include a specific definition of marriage in the definition provisions. However, the words to be used by celebrants in undertaking a marriage are prescribed and state that marriage is a union between a man and a woman. This can be found in section 46 of the act. Similarly, the Family Law Act 1975 requires the Family Court to perform its function having regard to:

... the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others ...

Various courts and tribunals have affirmed that this is the legal meaning of marriage in Australia, and, whilst the relevant clause in the bill is probably unnecessary and might be seen by many to be provocative, it is not actually taking away anyone's existing rights. Late last year the federal Labor caucus, in endorsing our package of the other reforms that I have referred to, agreed to keep marriage as it is commonly understood: between a man and a woman. In these circumstances, we cannot oppose the government's bill in this regard.

The second change proposed by the government goes to the recognition of same-sex marriages undertaken overseas in jurisdictions that allow and recognise same-sex marriage. Consistent with our decision to retain marriage as an institution between men and women, we could not support Australians going overseas to marry, seeking to bypass Australian law. Accordingly, we will also not oppose this provision. I do flag, however, some concerns that citizens of other countries, who are lawfully married in their own countries and who may then come to Australia later—either in other circumstances or through immigration—are likely to be caught in this provision. We will ask the Senate committee to which we will refer this bill to consider the consequences of this, along with the other issues that we believe need to be dealt with.

It is true that in recent times some countries overseas have moved to legalise same-sex marriages and that ceremonies have taken place in Canada, the United States and European countries. Even though some Australians may have chosen to go overseas and participate in these marriage ceremonies, it was clear to them at the time that these marriages were being conducted under the laws of another country, and there was no suggestion that this would automatically lead to recognition of their marriage when they returned to Australia.

The third major provision deals with intercountry adoption by same-sex couples. This is an amendment to the Family Law Act. It prohibits intercountry adoption by Australian same-sex couples and confirms the government's fundamental opposition to any same-sex adoption. Labor agrees that adoption is a complex issue but does not believe that a blanket ban at the federal level is the best way to ensure that the interests of the child will always be given top priority. It is simply wrong to suggest that an orphaned child in a Third World country could never be better off with loving, gay parents in Australia who have passed all the rigorous checking and scrutiny required by the process for adoption. The reality is that almost no overseas countries allow such adoption, and most Australian states do not allow it either.

This interference by the Commonwealth ignores the fact that—even by the government's own admission on numerous occasions, including when it announced the detail of this bill—both the policy development and the administration in relation to adoption matters is the responsibility of state and territory governments. In fact in 1998, when the Joint Standing Committee on Treaties considered whether or not to ratify the Hague convention on intercountry adoption, the Howard government agreed that, in ratifying this agreement, it would be most appropriate for state and territory governments to retain responsibility for adoption policies and procedures. There was no suggestion back in 1998—or since that time—that the Commonwealth should take a more active role in determining who should and should not be eligible to apply for intercountry adoptions. The comprehensive and rigorous testing procedures that are currently in place and covered by state and territory laws and regulations all require a thorough screening of all applicants seeking adoption of children, both here in Australia and overseas. The parliament might also note that there have never been any designated gay adoptions in Australia. Some known child adoptions may have been made to gay adoptive parents, but as records are not kept this is impossible to confirm.

The government itself acknowledges that it does not have power to override the states in this area and has decided not to intervene in the ACT. However, because this provision deals with adoption from overseas, the government claims that reliance on the Hague Convention on Protection and Cooperation in Respect of Intercountry Adoption gives it some power in this regard, even though the states still administer the process. Clearly this provision will intervene in the area acknowledged by the government to be within state control. Supporting this provision would create confusion and inconsistency. It should also be noted, as I have mentioned briefly before, that there are currently no countries with which Australia has bilateral agreements on adoption that permit adoption to same-sex couples in any case. The Attorney-General's assertion last month in parliament that Labor is somehow trying to prioritise overseas adoption to same-sex couples, over adoption to opposite-sex couples, is completely inaccurate and simply silly.

I foreshadow that Labor will move an amendment to this bill in the consideration in detail stage, to omit this provision from the bill. We will be moving an amendment opposing the provision on the grounds that it is an inappropriate use of Commonwealth power and an unnecessary interference in the state and territory government role of running our country's adoption programs. When the issue arose in the ACT, our leader, Mark Latham, stated that adoption laws are clearly the province of state and territory governments and that the issue of adoption should be governed by the best interest of the child on a case-by-case basis. The blanket ban being proposed by the government would not allow any case-by-case assessment. The suggestion that opposing this provision will bring down the entire intercountry adoption regime for Australian couples is completely without basis, and I am sure the Attorney-General—and I am glad he is here today—knows that.

The Attorney also knows—or should do if he has been properly briefed by his own staff and departmental officers—that there are very small numbers of children available for intercountry adoption and very long waiting lists of Australian couples wishing to adopt. The countries with which we currently have agreements do not allow adoption by same-sex couples, and until they change their policies there is no likelihood of same-sex couples in Australia ever being considered for adoption under these programs. Therefore, for all the grief and vilification this proposal brings to existing Australian same-sex couples who are successfully raising children and leading happy family lives, there would be little or no practical impact from passing the government proposal to prohibit intercountry adoption.

My second reading amendment to this bill, which will be seconded by my colleague the member for Brisbane, who also has a strong interest in this area, makes clear that the Labor Party wants the provisions relating to superannuation benefits for same-sex couples to be included as part of the current bill, rather than as an add-on at some point in time, in the future—a point in time that may never happen, based on past form of this government. The gay and lesbian community was promised a package of measures by the Prime Minister, with superannuation included as part of that package. In fact, it was the only part of the package that would have any real and immediate impact; however, it is the one part that the government has not yet delivered on. We understand that it may come into the parliament sometime in this sitting, but Labor is not prepared to hold its breath.

Therefore, I would also like to foreshadow a number of alternative amendments on superannuation: one seeks to include our suggested superannuation changes directly into this bill; failing that, the other seeks to delay the commencement of this bill before us today until the superannuation provisions are put in place, whether in another piece of legislation or in this one. This will mean that the government's proposed changes to the Marriage Act will not come into effect until they deliver on their promise to deliver equality to same-sex couples in relation to their superannuation benefits. This is a fair deal and would hold the Prime Minister and this government to their original commitment.

In conclusion, it is clear that this bill has come from a Prime Minister who has nothing else to put on the agenda of the parliament. That he is prepared, in order to bring forward this bill, to halt public debate on such issues of substantial importance to the Australian community as workplace relations, health, family payments, education, definitions of charitable organisations and a whole raft of other pieces of legislation just shows how desperate the government has become. In the absence of any real agenda to support the families of Australia, we have a bill with two provisions that confirm the existing law and one that interferes with a matter that is clearly the responsibility of the states and territories.

Our response is that we will not be opposing the measures to confirm the existing definition of marriage and to only recognise those foreign marriages that meet this definition, but we will be opposing the measures to prohibit intercountry adoption. We will also be referring the full bill to a Senate committee so that the community can have its say on the bill before it goes to a vote in the Senate. On an issue concerning such an important social matter, we believe that the views of more than 30 government backbenchers need to be heard. As I have said during my speech, Labor will also be moving a number of amendments in the consideration in detail stage of the debate. They will cover the following issues: that the provisions of the legislation be enacted only once the beneficial provisions of the superannuation bill have passed; that schedule 2 of this bill relating to the issue of intercountry adoption by same-sex couples be removed; and, as an alternative policy, that the provisions of Labor's superannuation for same-sex couples bill, as first introduced to this House by the member for Grayndler in 1998, be moved as an amendment to this bill.

I urge the government, if it is serious about providing equal access to superannuation benefits to same-sex couples, to support the Labor amendments to this bill. By refusing to support our amendments, the government will just be proving that it is not really committed to broadening the superannuation schemes and that it never intended for these measures to be delivered as part of a package. Similarly, I urge members of the government to support our amendments in relation to intercountry adoption. In doing so, they should take heed of the Prime Minister's own acknowledgement at the press conference when he announced this package and said, `adoptions in this country are governed by state law'. This is clear in the Constitution and in its current practice, and unless the government wants to completely rewrite the country's adoption laws and procedures, not to mention tinker with the Constitution, this role should properly remain with the states and territories.

Labor remains a party committed to families and supports the choice of couples to marry or live in other committed relationships. We would all do well in this House to consider how we can support and encourage long-term relationships, particularly for the benefit of children that might be in them, and not be too distracted by this diversion, which has very little practical impact and could cause much harm and offence to many members of the community. I urge support for the second reading amendment moved in my name and foreshadow the amendments that will be moved at the consideration in detail stage of the debate.


The DEPUTY SPEAKER (Mr Jenkins)—Is the amendment seconded?


Mr Bevis —I second the amendment and reserve my right to speak at a later time.