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Thursday, 17 June 2004
Page: 30739


Mr ANTHONY SMITH (11:04 AM) —The Marriage Legislation Amendment Bill 2004 contains important amendments to the Marriage Act which, as previous speakers on this side of the House have outlined in some detail, seek not to introduce a major change but rather to confirm and reaffirm the legal understanding and definition of marriage in Australia. The Marriage Act 1961, as previous speakers have said, does not specifically stipulate a definition of marriage, and the Attorney pointed this out in his second reading speech when introducing this amending legislation.

Of course, as he indicated, the reasons for that lack of a specific definition relate mainly to the fact that some 43 years ago, when the Marriage Act was enacted, the need for such a specific black-and-white definition would, I am sure we would all agree, have seemed largely unnecessary to those framing the legislation and to the members of parliament who passed it during that period. However, the intention of the Marriage Act 1961 was clear, as the Attorney pointed out—that is, that marriage is between a man and a woman. That is the intention of the act. That has always been the strong understanding of the act in the Australian community. No-one has doubted that. No-one in Australia, I think, doubts that situation today—no-one doubts that, when the Marriage Act 1961 was framed and the legislation was drawn, that was indeed the unambiguous intention of those framing the legislation.

I make that point because even those opposite would not challenge that fact, despite their difference with this side of the parliament, as we have heard from the member for Sydney. Even those opposite would not challenge the fact that the Marriage Act 1961 had a clear intention based on the public understanding that marriage is between a man and a woman. As the Attorney outlined, much of the act indirectly confirms this, but the specific legal definition is not there and that is precisely why we seek through this amending legislation to introduce a formalised definition into the act so that the issue is beyond any doubt whatsoever. And the reason we seek to do that is quite simple: while the current legislation remains as it is, it is potentially open to challenge from those seeking to have same-sex marriages recognised under the Marriage Act.

Previous speakers from the other side have made the bizarre claim this morning that this amending legislation is both unnecessary and divisive. They say it is unnecessary because it simply affirms the current law, but it is divisive because it does so. How something which affirms and puts beyond doubt the universal understanding of the current law, which has been on the national statute books for 43 years, can be divisive is really beyond me. What it says about those opposite is that, if they find the amendment that affirms and confirms the current statute divisive, they must think the current law itself is divisive—they must think the Marriage Act is divisive. There can be no other option. If they honestly think an amendment to confirm an existing statute is divisive, they must think that statute itself is divisive.

As I indicated, those opposite also think that this amendment is unnecessary because, whilst the Marriage Act 1961 lacks that specific definition of marriage, common law and court-made law make clear what the current statute does not. How a member of this House—in fact, how a member of any house in a democratically elected parliament—can stand in a prime law-making chamber such as this and say that it is unnecessary for a law to be updated, it is unnecessary for a loophole to be closed or it is unnecessary for the parliament to act, because common law or court-made law has it covered, is very illustrative. What it illustrates is what we have seen throughout this debate over the last 24 hours—that is, there is a difference between the approach from our side of the House and the approach from those opposite. We believe parliaments elected by the people should make these decisions primarily, not judges and courts elected by no-one.

We have seen judicial activism in other democracies such as the US, and previous speakers, including the member for Aston, articulated that very clearly. We believe it is the role of our parliament to clarify the issue. We do not believe it is the role of the national parliament to acknowledge that there is a gap or a flaw in the existing legislation and then to sit and wonder what a court might do in the future, when we know the legislation itself requires amendment. We on this side of the House believe it is our role to ensure our laws reflect the intention with which they were passed. It is right and proper in this House and in the other place in this parliament that we exercise our duty, our responsibility and our democratic mandate to remove that doubt and to confirm the intention of this parliament—and confirm the will of the Australian people.

The public expect nothing less of us. Not only do they expect us to make laws that do the best for Australia but they also rightly expect that, where a deficiency arises, where a loophole appears or where there is a problem with an existing law, we act to fix it—that we do not do what some opposite seem to prefer, which is to ignore it or to wait until a problem arises elsewhere or the legislation itself is subject to challenge or called into question, and then for us to scramble around and try to come in after the event and overturn a court decision. The public expect us to act exactly as we are acting today through this piece of legislation. To those who say it is unnecessary, I say there is never a problem with a parliament confirming their intention; that is precisely our role. And, when it comes to this important issue of marriage, that is exactly what we are doing.

This bill reconfirms the definition of marriage, but in doing so it also affirms the fundamental importance of marriage in our society. We seek not just to defend that institution but also to promote it. Of course, no-one is suggesting that there are not meaningful relationships outside marriage, but the point is they do not constitute marriage. Marriage is between a man and a woman. It is the bedrock of our society, it is a fundamental reason for the success of our society and it will be a fundamental ingredient to the future success of our country and the wider society in the years ahead. In passing this amending bill, the parliament is doing precisely what it should be doing.

In closing, I want to refer briefly to the fact that, at the same time the Attorney announced these changes to the Marriage Act, the government also announced it was amending the tax treatment of superannuation to introduce a new concept of financial interdependency, whereby the definition of a `dependant' for the purposes of paying superannuation death benefits will now include a person in an interdependent relationship. For many in the community, including but not only those in same-sex relationships, this amendment removes what they saw as a very practical barrier, where superannuation assets were treated less generously for those who were not married or in a recognised de facto relationship. Now the situation will be identical. The reason I raise that is that on that very practical, sensible level the tax laws are being amended to equalise treatment for all those in financially interdependent relationships.

Contrary to the views of those opposite, the vast majority of Australians will not see this legislation as divisive or confrontational; they will rightfully see it as something the parliament should be doing, and I think they will rightfully see it as legislation that should be clarified and probably should have been clarified some time ago.