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Thursday, 17 June 2004
Page: 30729

Mr KING (10:20 AM) —Without doubt, the family is the bedrock of our society. But it is true to say that the way in which families are established has changed quite substantially over the years. Whilst I for one am delighted to be able to say in this House that I enjoy a loving and close relationship with my wife of some 20 years and our three children, I recognise that there are others who have formed different relationships and established families of a different kind. The Marriage Legislation Amendment Bill 2004 will not prevent such families being established in the future. It does not close the avenues by which families may be established and founded. What it does is limit, restrict or exclude those who may enter a family relationship through a formal marriage.

A couple of things which might be said to be beneficial come from this bill and the cognate legislation. The first is that the financial arrangements, particularly the definition of interdependence, will change so that those who establish gay relationships will not be discriminated against in Commonwealth fiscal and revenue relationships. That has been the undertaking in relation to the cognate legislation, and I am informed by a member of the government that this legislation will be taken through the Senate with legislation which presently rests there. So I am looking forward to having that ensure that all discrimination against gay couples that are properly established and appropriately defined—in accordance, perhaps, with the definition in the migration regulations—will cease.

In regard to this legislation in relation to the definition of marriage, it is interesting to look back to what Senator Gorton, during the carriage of the bill for the 1961 Marriage Act, said about this question. He said:

... in our view it is best to leave to the common law the definition or the evolution of the meaning of `marriage' as it relates to marriages in foreign countries and to use this bill to stipulate the conditions with which marriage in Australia has to comply if it is to be a valid marriage.

It is important that our churches are very closely involved in the definition of marriage and what is acceptable. I for one agree that in our society marriage is, according to the current law and according to the accepted tenets, the union of a man and a woman in a long and loving relationship.

But it may be that this legislation is going to defeat its own purposes. The attempt to exclusively define marriage itself gives rise to the recognition that section 51(xxi) of the Constitution gives rise to a power to exclude certain people from marriage in such a way that another parliament could redefine marriage and include those people. One of the reasons that the wisdom of the parliament of 1961 should prevail is that it may be that future societies will change the definition of marriage. One of the purposes of an evolving society is—in my view, anyway—to ensure the family, which is the bedrock of our society, remains as such.

It is possible that the definition of marriage in this legislation is going to give rise to constitutional challenges. We know that Justice McHugh in a recent case in the High Court and Justice Brennan in Fisher and Fisher and in another case, Hyde v. Hyde and Woodmansee, have made observations which suggest that the definition of marriage in the Constitution may in fact have some evolutionary nature.

I do not have time to go into those issues at the moment, as interesting as they are. But I will say this: those constitutional and personal matters give rise to the consideration that, in my view, the bill before the House ought to be a matter of conscience. I am disappointed that this legislation is not a vote of conscience, because on a matter as personal as the nature of marriage many different views will be acknowledged and it is only appropriate that such a course be taken. Nonetheless, that is not the case, so one has to deal with the matter as it stands.

I have also raised the concern that the exclusive definition of marriage and the way that it has been done may render illegal de facto relationships because of the impact that the public law may have upon the definition in the common law of what an accepted de facto relationship is. I refer to the decision of the Court of Appeal in New South Wales in the matter of Seidler v. Schallhofer, in which Justice Hutley, Justice Hope and Justice Reynolds acknowledged that an agreement to enter into a de facto relationship is not, as a result of evolving law, unlawful. If we start fiddling with the definition of marriage that may have some unfortunate implications for other sorts of established relationships, and that is a matter of some concern.

My time has run out, I regret to say, in accordance with today's permitted debating time. I am concerned about the definition exclusively put in this fashion. I have a significant number of established, happy and long-term gay couples in my electorate. I would not wish in any way it be thought that there was anything to be said offensively against the establishment of such families. On the other hand, I also recognise that the institution of marriage as it is is part of our society and is part of that bedrock which I mentioned earlier: namely, the established family.