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Wednesday, 16 June 2004
Page: 30560


Mr STEPHEN SMITH (5:11 PM) —Today I wish to speak briefly on the Marriage Legislation Amendment Bill 2004. My starting point is that the Prime Minister has caused this legislation to be introduced, but his intention is not a public policy intention. His intention here is not to improve the public policy framework; his intention here is a cynical one, to seek to achieve a cynical political purpose, and it should be treated in that fashion.

I accept that it is certainly the case that there would be strong views on this matter—strong views, genuinely held, in the community; strong views that are firmly put in different directions. Where strong views are firmly put and genuinely held they are entitled to be respected, just as we—as individuals, as a community, as a parliament and as a nation—should respect the genuine choices of life and lifestyle that people make. There is no monopoly, no mortgage, on the model by which people choose to live their lives together in a stable, long-term, caring, loving relationship, whether it is marriage in accordance with the Marriage Act, whether it is a bona fide, domestic, de facto relationship between a heterosexual couple or whether it is a loving, long-term, stable, caring relationship between a homosexual same-sex couple. There is no mortgage or monopoly on it. On that basis, it is my view that, as individuals, policy makers, parliamentarians and members of our local and general communities, our approach should respect that that is the case.

I also believe, and believe strongly, that marriage in Australian society has traditionally been recognised as an exclusive heterosexual institution: the union between a man and a woman. The Marriage Act 1961 reflects that, whilst it does not necessarily define it as such; the Family Law Act 1975 reflects that, whilst it does not necessarily define it as such; and it is unquestionably the case, in my view, that the common law reflects that. So I agree that, from an institutional point of view, there is no difficulty with defining marriage—if you want to—as an exclusive institution for a relationship between a man and woman. I have no difficulty with that. As a consequence, I have no difficulty with that part of the legislation, even if one puts to one side the motives of the Prime Minister in this matter.

Equally, I have no difficulty with the vital role that the institution of marriage has played in Australia in our history since European settlement; in our history, formally as a Commonwealth since Federation; or indeed in the modern Australia which started with our post-World War II migration program. Marriage has been a vital institution in our society—initially, exclusively, largely for childbearing, but also for other genuine community purposes: for stability in the community and stability in society.

While on one hand marriage as an institution has always been exclusive in the way in which I have described it, it has also been the cause of discrimination. Perversely, in some respects, it has been the cause of discrimination because either you are in it or you have been outside it. Because you may have been within the institution of marriage, the causes of discrimination are probably not generally appreciated. It has been those discriminations that have flowed from being outside the institution that have been more widely recognised and have seen changes in state and Commonwealth law in the last 20 years or so.

In historical terms, it was not all that long ago in my own state of Western Australia that if you were a woman and you were employed by the education department of Western Australia as a teacher to further the educational interests of children and you decided to get married, you were compelled to resign your position. So a woman in Western Australia who was employed by the education department as a teacher, who was bettering the educational interests of children, was compelled to resign and cease being employed in that vital capacity merely upon entering the institution of marriage. That is discrimination for being within the institution. Fortunately, that was removed a number of years ago.

More generally appreciated is the discrimination which comes from not being within the institution. Historically, that has been recognised as the discrimination which is attended to a woman who has been a de facto, rather than a de jure, spouse—that is, a woman who has been in a bona fide domestic heterosexual relationship with a man. As a consequence of not being within the institution, discrimination has flowed. Discrimination has flowed in a property sense, in a will and probate sense, in the administration of a deceased estate's sense and in a social security sense. So a number of discriminations flowed to a woman for being a de facto spouse—a relationship not recognised by the nation state, as was the institution of marriage. Fortunately, it has been the case since the seventies that most of those discriminations which were almost invariably state based, or based in state legislation, have been systematically removed by the enactment of antidiscrimination legislation at the state and Commonwealth levels.

If you had been a child of a bona fide domestic heterosexual relationship—a de facto relationship rather than one recognised by the institution of marriage—all forms of discrimination attended you. It has not always been the case that the phrase, `You bastard,' has been a term of endearment. The mere fact of being outside the institution of marriage has been the cause of discrimination mostly against women but also against children—boys or girls—and men. Fortunately, we have removed most of those discriminations from state and Commonwealth statutes.

One of the discriminations which used to attend to men was only removed last year in my own state. If you were a man in Western Australia and were in a bona fide domestic relationship with a woman, if you had all the trappings of marriage—a joint mortgage and children—but you were not within the institution of marriage, and if you were unfortunate and your wife predeceased you prior to your children becoming 18 or 21, as the case previously was, you were obliged to approach the Supreme Court of Western Australia and secure an order from that court to give you custody of your children, whether or not that custody was disputed. That was only recently—in 2003—removed from the law of Western Australia. Whilst the institution of marriage has been a vital institution in Australian society, the fact of being in it or the fact of being out of it has caused gross discriminations against men, women and children in the history of our nation.

More recently, as these discriminations against heterosexual de facto couples have been removed, we have moved to the discrimination against homosexual couples or same-sex couples. That is why in this case I make the removal of discrimination not only my starting point but also my end point: it is the first and last public policy priority. If you look at the discrimination which has been attended to homosexual couples, same-sex couples, in recent years, as parliamentarians, individuals and members of the community we have come to appreciate the discrimination which is attended upon those people in the long-term, stable, loving, caring relationships that they choose. To his great credit, my good friend and colleague the member for Grayndler has harassed this chamber to seek to remove the discrimination in the superannuation area which is attended upon same-sex couples. To its credit, the previous Labor administration in a number of areas sought to relieve the discriminatory burden. In my current shadow ministry portfolio, we have seen the introduction of interdependent spouse visas to enable same-sex couples not to be discriminated against when it comes to the migration regime of our nation.

Because of my priority—the removal of discrimination—I absolutely and strongly support paragraphs 2 and 3 of the second reading amendment which state:

(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;

That will remove the discrimination which as a community we have become more appreciative of in recent years and which was attended upon de facto heterosexual couples in previous years.

So far as the issue of adoption is concerned, it is so well-known these days that the number of adoptions is so small that I see no reason to remove adoption from the case-by-case assessment of our state and territory jurisdictions. What the Prime Minister is doing in this case is straining to find a Commonwealth head of power to inveigle the Commonwealth into an arrangement in that area, not to better the public policy framework but to make a cynical political point.

I think it is incumbent upon us as individuals, members of our own communities—local and national—and members of this parliament to accept that there are different models for long-term, caring, loving relationships. Some of those relationships have been and can be recognised by the state. Some of those relationships have been, can be and are recognised by the church or churches. Some of those relationships are recognised by the community in a formal or informal sense. I think it is absolutely important, whether one of those relationships is or is not recognised by the state, that it is not the vehicle for discrimination—that its presence or absence is not the vehicle for discrimination. That is why it is incumbent upon us, in my view, to make our highest public policy priority the removal of those discriminations, and the vast bulk of that discrimination now attends to same-sex couples.

Once this parliament and the state and territory parliaments have done that then, from a personal point of view, I have no objection to those people who say, `We'd like to have a conversation about some form of civil recognition of same-sex couples who want to publicly show that they are in a long-term, stable relationship outside the institution of marriage.' From a personal point of view I have no objection to that, if only because it might actually be helpful as a point of evidence as to the existence of a long-term, stable, bona fide domestic relationship. But the highest priority in this issue is from the standpoint of a sensible public policy framework, not from the standpoint of a cheap, cynical political manoeuvre. The priority in this issue is to stand up and say that the institution of marriage—both being in it and outside of it—has, historically in Australian society, whilst serving us well as a vital institution, advertently or inadvertently been the cause of discrimination against people who happen to choose a different model of the relationship that they want to share with a long-term, loving partner. In my view, the obligation is upon us to remove those discriminations without fear and without favour.