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Thursday, 17 June 2004
Page: 30720

Dr LAWRENCE (9:38 AM) —I am going to speak only briefly on the Marriage Legislation Amendment Bill 2004 today, but I do want to make a modest observation about the comments by the previous speaker, the member for Paterson. Everybody respects religious belief; indeed, it is part of our culture and tradition that we do, and we are tolerant of others' religious beliefs and practices. But we have, since the inception of this country, been very clear about the need to separate church and state. It comes too with our tradition from the United Kingdom. Legislation in this parliament should be capable of being abided by and understood by all citizens, regardless of their religious beliefs. It certainly is not appropriate either to use Christianity as a justification for certain acts in this parliament or to claim that such a definition of marriage stems solely from a Christian tradition, because it does not.

However, that was not the principal point that I was going to make in this debate, we need to look at marriage as an evolving institution—because it is. It is not an institution that, as some people have described it, has been the same for thousands and thousands of years; it simply has not. There have been different forms of marriage across cultures and across time. And marriage, if you look at the history of it, did not evolve initially as a solely Christian institution. It exists in many cultures and has taken forms that really had more to do with the disposition of property and inheritance than with the specific blessing of a relationship by some religious organisation.

So let us look at the nature of marriage if we are going to talk about defining it in legislation. Let us look at how it has evolved over time and some of the more curious practices that until recently were embraced by some of our predecessors. For instance, there are examples in Christianity of polygamy—I do not think there has been any polyandry, but there have certainly been polygamous arrangements—continuing to this day in certain parts of the United States, although I know there are attempts being made to reduce the frequency of such arrangements. They have existed even within the Christian tradition and they certainly exist in other cultures and have over time. I do not think any of us would necessarily want to suggest that Australians open up those possibilities; I simply make those observations to suggest that the notion of marriage as an unchanging institution with a single definition is incorrect.

Indeed, if you go back through the history of marriage as an institution you will find—I think this is correct; I have not been able to fully check it, but the research seems adequate—that between the fifth and the 14th centuries, for instance, the Roman Catholic Church conducted special ceremonies to bless same-sex unions which were almost identical to those they used to bless heterosexual unions at the time. At the very least these were spiritual if not sexual unions—it is not altogether clear—but there existed a form of ritual even within the Catholic Church. I think it is worth noting that for a long time there were explicit prohibitions too about who could marry which we would no longer consider acceptable. In the 11th century, for instance, Pope Alexander issued a decree prohibiting marriages between couples who were more closely related than sixth cousins. So there were explicit prohibitions against what we would not regard as close relations getting married.

As we know from Thomas Hardy's wonderful book, from the 1690s to the 1870s wife sale was common in rural and small town England. Wives were so regarded as property that a husband could actually sell his wife. All he had to do to divorce her before the sale was to present her at an appropriate gathering with a rope around her neck, and offer her in public for sale to another man. So these are some of the precursors, if you like, to the institution of marriage. For a long time, of course, marriage was a strictly civil institution in some places, and religion was not involved at all. In Australia that is still the case. For many people marriage is an entirely secular arrangement. There is no religious ceremony, nor is there required to be.

I think it is also worth remembering that for a very long time there were certain groups of people apart from cousins who could not marry in certain parts of the world. Until recently, in South Africa an interracial marriage was considered illegal, as it was in the United States of America. In 1662 in Virginia there was a fine for fornication between interracial people, and marriage between African-Americans and other Americans was all but outlawed in most of the southern United States. Under English common law and all the laws derived from it, married women had very few rights to property and little capacity for entering into agreements or arrangements, which they now can do.

I make those points simply to illustrate that this notion that marriage is an entirely religious institution with a simple definition which everybody understands is not the case. We have seen arranged marriages supplanted over time by marriages based on affection and sentiment rather than the economic concerns of the parties involved. For a long time too, many marriages required the consent of parents, something that for the most part is no longer required. In some countries today marriages are still formed between very young people, people we would regard as children. I think it is also worth pointing out that that was the case in our own tradition until reasonably recently, and very young people often entered into what were effectively prearranged marriages—which required the consent of parents, it has to be said, but which we would regard almost as equivalent to child abuse.

In all the cultures around the world, including in the West, marriage evolved as a practical device to form alliances between families. It was really about considerations of property, sometimes of religion, and of complementary abilities. These were essentially arrangements of convenience. Although respectful love was supposed to develop in those circumstances, neither sexual nor romantic love was initially the basis for marriage. Indeed, some would argue that, to the extent that that has become the basis for marriage, marriage has become a less stable institution. I do not necessarily endorse that view, but you will hear it argued. Fathers had legal rights in the past to give or withhold consent and, as I say, often entered into economic negotiations about these arrangements. Even in the Western tradition, the bride usually brought some form of dowry and the groom was expected to provide land, tools and the like to support her and the children.

Marriage in English law, generally speaking, subsumed the legal being of the wife into that of the husband. So the idea of marriage being between equal partners is a very recent innovation. Married women until my lifetime were often discriminated against explicitly, even in employment in this country and in their capacity to enter into independent financial arrangements, to take out loans and the like. In the sixties, it was still commonplace in most state departments of education to require women to resign when they got married—to give up their permanency. Many of them then became permanently temporary, with effects on their superannuation that are still flowing through today. The university I went to in the sixties and seventies actually required women who wanted to marry to get the permission of their head of department if they wanted to remain permanent. So the idea of a woman as an equal partner in marriage is a very recent idea in law and in practice in our own community.

By the mid-19th century, sentimental doctrines of romantic love came to prevail but Victorian marriages, like those I have just referred to, still demanded strict fulfilment of gender specific roles centred around family responsibilities. I know that there are some people who still have that idea of marriage and that in some people's views the woman's role is clearly defined in religious doctrine and any departure from it is to be frowned upon. Indeed, I sometimes think that is the Prime Minister's view of the relationships between men and women in marriage in this country. But the sexual revolution in the second part of the last century changed all of that and weakened the connection between sex and marriage. I am often surprised to hear people talk about marriage as though its sole purpose today is for the procreation and support of children, when we all know that there are many satisfactory marriages—marriages undertaken in good faith—where there are no children, either by choice or because that is the way matters have evolved.

So I want to point out that, in the context of debating the definition of marriage, we should be very careful. That is why our predecessors did not put it in the legislation—so as not to pre-empt arrangements that people may enter into and not to deny people certain rights, privileges and understandings that would apply if we allowed the institution to evolve through the common law. The argument that we hear from the conservative side, and we heard it from the previous speaker, is that marriage has endured for thousands of years—it has, but not in the form that we would recognise—and that it is a bedrock institution and should not be changed. I hope I have demonstrated at least in part that that is not the case. The reality is that between cultures and over time the meaning and form of marriage have changed dramatically, as I have described.

I think you will find that Australians understand that, because Australians enter into a great variety of relationships of longstanding commitment. Sometimes they are marriages conducted under the auspices of particular churches or religious traditions complete, in the case of a Catholic service with a mass, or an Anglican communion service or an appropriate Jewish religious ceremony. But many Australians go through secular marriages conducted in their own backyard or homes with family present, and they make a vow and commitment to one another, hoping it will be a union that lasts for a lifetime but knowing realistically that the divorce figures belie that fact—that many Australians, both those who have been through the religious ceremony and those who have been through the secular ceremony, end up separating at some point, going about their lives and needing arrangements through our divorce courts. So, in reality, marriage is not for life, and many people understand that well or have certainly come to believe it, even if they are hopeful at the point of being married.

Australians attitudes are also much more flexible. They do not necessarily see marriage as an institution that they need to enter into in order to show commitment to one another or to have children. There are a great many people who live in stable, longstanding relationships without ever entering into marriage. Many of those people have been discriminated against in law, and it is a matter of record that Labor governments around the country are trying to ensure that de facto couples get the same rights and entitlements as those who enter into marriage as described in this legislation. Then there are the people for whom marriage is now to be denied, and I understand that the common law for the moment effectively precludes marriage between homosexual couples. However, Australians are not so certain that that is necessarily a good thing. The most comprehensive survey of social attitudes on this question found that 65 per cent of people under 35 years of age in Australia would happily describe same-sex couples with children as a family—and 56 per cent of people between 35 and 45 years of age have the same attitude. These Australians recognise that a same-sex couple with children is a family. They do not have any trouble with that at all. I am not sure about the older group. I imagine they would be more conservative on this question, but I think we need to put our debate in the context of what the citizens of this country regard as reasonable.

When it comes to the specific provisions of this bill, my concern is that we are sending a message to gay and lesbian couples in this community—couples who have longstanding relationships—that theirs are effectively second-rate relationships, that they are to be seen as unworthy in some respect and not to be accorded the respect that this parliament gives to people who are in a married relationship. I have to say that, no matter how you look at the proposals that this legislation embodies, they have a nasty political whiff about them, because the Howard government has shown itself capable on many occasions of pulling out an issue that it regards as likely to divide the community and to result in the expression of certain prejudices for its own political advantage. You have to ask: why are we debating this right now? This government has been in office since 1996. It has had many opportunities to open up this question to the wider community. There has not been a debate in Australia about gay marriages. There has been a debate in the United States about gay marriages and, as in other things, this Prime Minister finds it attractive to follow along behind the American conservatives. I think that is very unseemly. It is not fair to the Australian community, because when you are making changes of the kind described in this legislation you really do need a mandate, the community does need an opportunity to discuss it and you need to think about the protection of minority rights and interests and how best to do that. We should debate what marriage should mean in a secular society, respecting people's religious beliefs and the equality that should apply to being a citizen in this country. We are effectively enshrining in legislation a form of discrimination which most of us would want to see eliminated in other forms of—

Mr McGauran —So you will vote against it?

Dr LAWRENCE —No. I am saying that this is a very political act. We have not had the debate necessary in the community. The minister may find it convenient to use a minority of gay and lesbian couples in the community as a weapon in a political strategy. I think that is an obscene thing to do and I am very disappointed that there are members on the other side—I am sure of good faith—who are prepared to go down this path. We need a proper discussion and I am pleased as I understand that is likely to occur, in part, in the Senate. Issues about adoption and so on flow really from this attempt to make gay and lesbian couples, in a sense, abandon any aspirations they may have in formulating a relationship.

Ultimately that may be what the Australian people decide. It may be that, after proper debate about the pros and cons of these arrangements, they would accede to what is existing common law. But to close the door in the way that this government is proposing as a political strategy I think does raise questions about its good faith. Frankly, I have no difficulty at all in seeing this as just another form of `divide and conquer'. You sow seeds of bias, prejudice and discrimination out in the community, just scatter them around a bit, and then allow them to grow for your political benefit. It is a very nasty tactic. I have seen this government do it with Indigenous people. It has tried it before with lesbian couples in relation to the IVF debate. It has done it with asylum seekers. In my view, history will judge this Prime Minister very harshly for having implemented this strategy so comprehensively and so often in Australian political life since 1996.

It is always easy to find people or groups in the community that you do not like or that you know others do not like and to engage them politically on the basis of their dislike for that particular group. This is not about protecting the institution of marriage. As I understand it, there is no suggestion in the law that it is under challenge. There are no cases, as far as I know, specifically challenging this matter, although there may be some in prospect. If this legislation passes, people who have entered into marriages in other countries—gay and lesbian couples—will find they are not recognised here; and they are to be prevented from undertaking adoptions as well.

As I say, these things need to be fully debated: what is in the interests of a child; what are the best circumstances for children from other countries to come into our country to begin their lives anew, many of them from very tragic circumstances? The message to the gay and lesbian community is a very cruel one. It basically says that members of the government regard their relationships as second rate and that they regard them as inappropriate partners for one another. We all know that sexual preference is something that most of the rest of the world regards as a basis for discrimination that should not exist and there are all sorts of legislation and international agreements to prevent it. So they are being told, `You are not worthy of entering into longterm relationships. The fact that you want to marry is not seen as a vote of confidence in marriage but as some form of perversion. And your desire to bring up children in families'—families that many Australians recognise as reasonable—`is one that we repudiate.' That is what this parliament would effectively be saying to members of the gay and lesbian community. That in my view is discrimination front and centre and it is a very cruel way of treating a minority group in our community.

It is an easy thing to find these minority groups and beat them up. It is not politically very smart but can be very effective. But I am pleased to say on this occasion that the Australian community has reacted to the government's strategy of using gay and lesbian people as a political weapon while caring not one bit about their feelings. Like many, I have had a large number of emails from both constituents and people around Australia expressing their hurt feelings, as much as anything—people saying, `I am writing to you about the proposed ban on gay marriage and overseas adoption. I cannot begin to tell you how disappointed and shocked I am.' Other people talk about the pain that they have suffered having children in communities and now being faced with discrimination against them in a way they thought they had overcome—their children at school effectively having to live with the idea that Mr Howard and the government are opposed to their parents.

Dr LAWRENCE —We are doing no more at this stage than ensuring that this matter is properly debated—and we will do that. This bill has been developed in spite and malice. This bill has been developed out of a desire to exploit an easily exploited minority in our community. This bill is an appalling abuse of this parliament. In my view, the ministers responsible and the Prime Minister should be held to account for exploiting people who are not in a position to defend themselves against this attack. Frankly, I am one of those people who are very dismayed that our Prime Minister has stooped so low—although I am dismayed, I am not surprised.