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Wednesday, 16 June 2004
Page: 30570

Mr DANBY (6:05 PM) —I rise to speak on the Marriage Legislation Amendment Bill 2004, which was introduced by the Attorney-General on 27 May. The bill contains a number of provisions. The first provision is to amend the Marriage Act to define marriage as `the union of a man and a woman, to the exclusion of all others, voluntarily entered into for life'. The second provision is to amend the Marriage Act to confirm that unions between same-sex couples that are solemnised overseas will not be recognised as marriages in Australia. The third provision is to amend the Family Law Act to prevent same-sex couples from being put forward as prospective adoptive parents under any international agreement or arrangement relating to the adoption of children to which Australia is a party.

The Attorney-General told the House that the purpose of this bill is to give effect to the government's commitment to protect the institution of marriage. I think everyone understands that, by introducing such legislation only a few months before a federal election, the government is really trying to protect itself. It is trying to protect its hold on regional seats where it imagined it could exploit social issues like same-sex marriage to divert attention from its record in health, education, child care and aged care, which are the issues Australian families really care about.

I do not believe that this bill responds to any real sentiment in the Australian community that the institutions of marriage and family need protecting against the `horrid spectre' of same-sex marriage. People in my electorate are asking, `Protect them against what?' I have yet to see any explanation of how discriminating against gay men and lesbians strengthens marriage or the family. Families in my electorate do not feel any threat from their gay and lesbian friends and neighbours. They rightly suspect that this bill is a stunt—a diversion from the issues that I have just mentioned, a diversion from this government's policies which really are damaging Australian families.

Same-sex marriage is not currently recognised by Australian law. If the government's proposed amendment to the Marriage Act is passed, it will still not be recognised. In other words, the amendment will make no difference to Australian law. The only effect the bill has is to preclude the possibility that the courts may at some time in the future decide to overturn the current common law definition of marriage. Same-sex unions are, however, recognised in the American state of Massachusetts, in three Canadian provinces and in some European countries. No doubt this trend will continue. There is a possibility that Australian citizens in same-sex relationships could travel to these countries and be legally married there. They could then return to Australia and seek recognition of these marriages through the courts.

Over the past 20 years we have seen a great evolution in the Australian community's attitude towards marriage and the family. We have seen the widespread acceptance of divorce, of lone parents, of couples living together and having children without being formally married and of blended families. These things are now accepted by most Australians. Attitudes toward same-sex relationships have also changed. From being something that was kept secret, same-sex relationships are now widely accepted in the Australian community. Many well-known people in Australian public life, including members of this parliament, have same-sex partners.

As a result, we have seen a process of removal of legal discrimination against same-sex couples in all of the Australian states and territories—even Tasmania—under governments of both political persuasions. In Victoria, we saw the Bracks government in its first term carry out a comprehensive reform of state law, which had the effect of putting same-sex relationships on the same legal footing as de facto heterosexual couples in all areas except adoption and access to artificial reproductive technology.

These reforms did not happen by accident. Melbourne has a vibrant gay and lesbian community and a dedicated gay and lesbian rights movement. Many of its leaders live in or close to my electorate. Some of them live in the electorate of the member for Higgins, and I think he should pay more attention to them. That movement worked for many years to achieve legal quality at both state and federal levels. I want to acknowledge in this House the work of Jamie Gardiner, Chris Gill, David McCarthy, Lyn Morgain, Adam Pickvance and many others who have devoted so much time and effort to the advancement of their community and to persuading their friends, in a most intelligent, persistent and articulate way.

As a result of their work in educating the Victorian community over a long period of time, the extensive changes which the Bracks government proposed met with almost no public opposition and were passed by a legislative council which at that time was controlled by the Liberal and National parties. We have seen similar changes of public attitudes in other states, most notably Tasmania. As a result of the work of the Tasmanian gay and lesbian rights movement—supported of course by many other people, such as the honourable member for Denison, who is owed great credit for the work he undertook there—there has been a revolution in attitudes in that state, where only a few years ago homosexual acts carried a penalty of 20 years in prison. Talk about going back to the days of Oscar Wilde.

This brings me back to same-sex marriage. Five years ago this issue was not on the agenda of the gay and lesbian rights movement. Many gay and lesbian activists took the view that marriage was a heterosexual, indeed patriarchal, institution which gay men and lesbians should have nothing to do with. There was certainly no consensus that extending the definition of marriage to include same-sex relationships was a desirable thing or an objective which gay and lesbian rights movements should spend their time on.

This has changed over the past few years, mainly as a result of the impact of events in the United States. There has always been more support in the American gay and lesbian community for same-sex marriage than there has been in Australia. Since marriage law in the US is decided at state level, liberal states such as Vermont and Massachusetts began to move towards changing their laws. The American Republican Party then decided to exploit this issue as a wedge against the Democrats, culminating in President Bush's suggestion of amending the US constitution to ban same-sex marriages and, indeed, all kinds of legal recognition for same-sex couples across the country. Same-sex marriage has thus become a hot-button political issue in the United States, perhaps as the Prime Minister and some elements in the government would like it to be in Australia. This is why the issue of same-sex marriage is being raised in Australia—because of the political flow-on effects, because some of the people who give the government political advice think this could be used as a wedge issue.

Just because an issue has been raised elsewhere, that does not mean it can or should be acted upon immediately. I do not believe that the Australian community is ready to see the definition of marriage change. This will not change until the gay and lesbian rights movement do the kind of educational work around this issue that they have successfully done around other issues over the past 35 years, starting with decriminalisation in the 1960s. It is not for me to tell the gay and lesbian community what their objectives should be. But, if they have now decided that same-sex marriage is a desirable objective, they need to persuade the Australian people of this.

We are here to represent the people and, while we sometimes rightly seek to lead public opinion, I am not in favour of passing laws which the majority of the Australian people are not ready to accept—or not ready to accept yet—nor am I in favour of major changes to the law being brought about by the courts without the people being able to have a say. This just leads to populist resentment against elitist decision making which ignores public opinion. When the Australian people indicate that they are not opposed to the legal recognition of same-sex marriage, it will be time for their elected representatives in this parliament to change the law accordingly. But I have to say to my friends in the gay and lesbian community that we are not quite in that position yet.

But the gay and lesbian community may yet have grounds to be grateful to the Prime Minister and the Attorney-General, because they have now taken a non-issue and turned it into a real issue. The legal and civic status of same-sex couples is now being debated in the national parliament of Australia, in the media and, presumably, at barbeques all over Australia—weather permitting, of course, at this time of the year. Everybody can see how blatantly the government is appealing to prejudice in trying to use the bogey of same-sex marriage as an election wedge. Australians who did not previously support same-sex marriage may now reconsider, on the grounds that anything the Prime Minister or the government oppose so vehemently must have something going for it.

Let us be clear: there has been no backflip or backdown by the Labor Party on this issue. The legal recognition of same-sex marriage is not Labor Party policy and never has been. The issue was fully debated at our national conference in January and our policy was reconfirmed. This has been our consistent position, as the government knows perfectly well.

The government's proposed changes to the Family Law Act are another matter. They would have the effect of prohibiting same-sex couples from adopting children from overseas countries under any circumstances. This is in a different category to the amendments to the Marriage Act. While those changes are purely symbolic, the adoption issue affects the lives of real people, particularly children—for whom I would have thought all members of this House would have primary concern in issues like this, rather than try to make political issues out of them.

It is hard to see why this has suddenly become such an urgent issue that it requires legislation a few months or a few weeks before a federal election. Again the suspicion is raised that this is just another pre-election stunt designed to divide the community and arouse prejudice at a time when the government does not want the electorate thinking about the real issues on which the election will be fought.

Adoption law has traditionally been a matter for the states and territories. Why has this suddenly become an issue for the federal government? What evidence is there that there is a significant issue with same-sex couples adopting children from overseas? The dominant consideration in relation to any adoption should be the welfare of the child. That is a matter that should be determined by the competent authorities, not imposed by a blanket prohibition by the government acting out of crude political self-interest. If it is in the best interests of a particular child that they be adopted by a same-sex couple, what right has the government to prohibit that? We will be opposing this provision in the government's bill.

Finally, Labor will be voting in the Senate to refer this bill to a Senate inquiry. This will allow all sections of the community to have their say. I hope that this will advance community understanding of the issue of same-sex relationships and their place in the community. I urge everybody who has a stake in this issue to make a submission to that inquiry, which I believe would not have happened without the work of the opposition.

In the recent media and community debate about this bill there has been almost no focus on the fact that the Howard government would also keep in place a range of other discriminatory laws. Labor has made a commitment to a comprehensive reform of Commonwealth laws for same-sex couples. This would involve an audit of all Commonwealth legislation. The purpose of the audit would be to identify where, amongst the thousands of pieces of Commonwealth legislation, discrimination against same-sex couples exists. Labor will then amend the legislation to remove such discrimination.

Labor is also committed to introducing antivilification and antiharassment laws, as well as stronger protection against discrimination on the ground of sexuality. A re-elected Howard government would retain all of the discriminatory legislation and, as we see here today, would be prepared to introduce further discrimination, such as the prohibition of intercountry adoption by same-sex couples regardless of the interests of the children. It would be a blanket ban with no interpretation of individual circumstances, which I think is unconscionable.

Labor have already identified the legislation requiring change, which includes the Workplace Relations Act, the Income Tax Act, superannuation laws, immigration and citizenship laws, the Social Security Act and Defence Force legislation, and we expect that there will be many more pieces of law that will need to be amended once the full audit is completed. I know that some of my constituents are disappointed that the opposition are not opposing the amendments to the Marriage Act, although they have welcomed our opposition to the government's interference in adoption law and the prospect of a Senate inquiry into all aspects of the issues raised by the legislation. I know they will also welcome the fact that the Labor Party are committed to delivering wide-ranging same-sex law reform.

At some stage I will be moving amendments that are particularly dear to my heart. Since I became a member of this parliament, the member for Grayndler, Mr Albanese, and I have been insisting that the government pass same-sex superannuation laws, and we are going to call on this government to stand and deliver. When the government first foreshadowed this legislation they made a great deal of the fact that they were going to amend the superannuation provisions to allow same-sex couples and various other categories of couples to pass their superannuation on to each other. They have advanced the wedge legislation, but there is no sign of the superannuation equality part of this legislation.

We are going to ask this government to drop its political hypocrisy and show some fair standards. I used to think that the Liberal party was the party of property and would insist that people who had accumulated savings, wealth and property be entitled to pass them on to any person that they determined. In my view this is a great piece of hypocrisy which this parliament has allowed to exist for too many years. We still do not see any evidence of the government coming up with the amendments on superannuation that would resolve this issue. A divisive political issue has been advanced but there are none of the proposed amendments on superannuation. I have outlined the Labor Party's attitude to marriage and to the adoption provisions and I will be appearing later in this debate to make it clear that we are going to hold the government to account on the issue of delivering on superannuation for same-sex couples.