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Thursday, 17 June 2004
Page: 30731


Mr ANDREN (10:28 AM) —Firstly, I would like to acknowledge the very wise and knowledgeable contribution from the member for Wentworth, and particularly the concerns he has noted over the definition of marriage in this legislation. The Marriage Legislation Amendment Bill 2004 amends both the Marriage Act and the Family Law Act in relation to same-sex couples and is the primary part of a wider government policy in regard to the rights of same-sex couples in Australia.

The amendment to the Marriage Act 1961 clearly defines what constitutes a marriage for the purposes of the act. A marriage is determined to be the union of a man and woman to the exclusion of all others voluntarily entered into for life. This intention is clear in the act as it stands in section 46(1), which deals with certain statements that must be made by a marriage celebrant. This amendment presents no departure from the act's current function. I support the inclusion of this definition of marriage. The act has served its purpose to date, and this amendment will in no way detract from its function. This amendment to the Marriage Act no more discriminates against certain groups in our society than the intention of the act as it stands already does.

I do believe that if there is, as the Attorney-General stated in his second reading speech, `significant community concern about the possible erosion of the institution of marriage' there are better ways to focus our efforts to protect the institution than banning people from joining it. We could start by tackling the causes of marriage breakdowns in this country. I believe that our time in this place would be much better served if we were concentrating on social dysfunction and the breakdown of relationships rather than finding ways to discourage a lifelong bonding between people in whatever context. As far as I can see, if this place were to allow same-sex marriages, the end result would have no effect on the incidence of heterosexual marriages and heterosexual couples willing to contribute to the survival of the species.

The amendments to the Family Law Act 1975 effectively ban same-sex couples from adopting children from overseas and prohibit any person from facilitating the adoption of a child from overseas by a same-sex couple. This seems in the most part to be aimed at preventing immigration officers issuing the necessary visas for any children adopted by same-sex couples to enter Australia. This is borne out somewhat by the comment on the adoption issue attributed to the Attorney-General in an article in a recent Canberra Times: that `it was up to the federal government, not the states and territories, to decide who entered the country'. This suggests that the government approaches adoption from an immigration perspective rather than on the ability of a couple or a person to care for and nurture a child. Or perhaps it is more indicative of where the federal government has identified an opening to inject its influence into the area of adoption that is administered by the states and territories.

The government's amendment will prohibit a same-sex couple from an overseas adoption by making it against the law for any entry visa to be issued in these circumstances, even though a specific state or territory may have deemed the couple eligible to adopt. This is not to suggest that there will be a flood of same-sex couples adopting children from overseas. The states and territories apply eligibility criteria equally to domestic and overseas adoptions—and we need to keep in mind that they are hardly uniform in their approach. The Australian Capital Territory, Western Australia and Tasmania adoption laws consider same-sex couples eligible to adopt. This is applied in much the same way to de facto heterosexual couples, usually with certain conditions to ascertain the stability of the relationship and the commitment of the prospective adoptive parents. However, New South Wales, South Australia, Victoria, Queensland and the Northern Territory do not allow same-sex couples to adopt children. Their respective adoption acts basically determine that `a couple', whether married or de facto, refers to a relationship between a man and a woman. In fact, the Queensland act also excludes heterosexual de facto couples, although this is under review.

So, despite the fact that the majority of states already subscribe to the federal government's approach on same-sex adoptions—and in fact do so to a greater degree, as they ban domestic adoptions by same-sex couples—the government have decided that it is necessary to close the loophole available to these couples in Western Australia, the ACT and Tasmania, and then only half close it, as they cannot ban domestic same-sex adoptions in these states without being accused of infringing states rights. And the government do not want the focus of this debate skewed from same-sex couples to states rights.

This policy is full of holes. Even in those states and territories where same-sex couples are banned from adopting, there remains an indirect mechanism for a same-sex couple to adopt, as most allow single persons to adopt—albeit in special circumstances. One partner of a same-sex couple could well take this approach. However rare a successful adoption in these circumstances may be, the opportunity legally remains. This is policy on the run, and the government is scraping the bottom of its wedge politics barrel. If the government were truly committed to the protection of the institutions of marriage and the family from the perceived threat from same-sex couples, surely it should have taken the time to draft federal template legislation for a uniform national approach to adoption, complete with its exclusion of same-sex couples, and bring the states and territories under control and have the full debate that this issue certainly requires instead of attacking it from this piecemeal and political perspective. Instead, we have an inconsistent patchwork policy, with the Commonwealth exerting its leverage on the states and territories through its responsibility for immigration law.

The final part of this policy package highlights this inconsistency even further. The government's changes to the tax treatment of inherited superannuation for same-sex couples—bringing them into line with married and de facto couples—are to be moved in the choice of superannuation bill in the other place. This is a thinly veiled attempt to distract attention from the obvious incongruity of banning a same-sex marriage on one hand whilst, on the other hand, recognising that the strength of commitment in such relationships can be equal to that of any married or de facto heterosexual couple. This is a double standard of epic proportions—and I need only look as far as the Treasurer's recent address at the National Day of Thanksgiving at Scots Church in Melbourne to see this. The Treasurer spoke of the `tradition that underlies our society—respect for individuals, tolerance within a framework of law and mutual respect'. He also said, `A government should never get into religious endeavours.' On both counts raised by the Treasurer, the Prime Minister obviously disagrees—judging by this legislation.

I support the amendments to the Marriage Act 1961. As I said earlier, I do not feel these amendments change the operation of that act in any way. I support the government's changes to policy on tax treatment of superannuation for same-sex couples. I do not support interfering in states or territories rights, except in the most extreme circumstances—as with the former mandatory sentencing laws in the Northern Territory. The adoption changes are not borne of extreme circumstances, and adoption should remain the domain of the states, where the best interests of children are well protected.