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Thursday, 17 June 2004
Page: 30741


Mr ORGAN (11:13 AM) —I rise today to speak to the Marriage Legislation Amendment Bill 2004 with much sadness, for it is a bill I would have hoped would never appear in this place. I should say at the outset that the Greens oppose this bill. We object to such blatantly discriminatory legislation being brought before the parliament and we oppose the discrimination against individual Australians based upon their sexuality. The bill before us has two main purposes: firstly, to define marriage in the Marriage Act and therefore `delegitimise' same-sex marriages which may take place either overseas or in Australia and, secondly, to prevent same-sex couples from adopting children from overseas countries. The bill raises complex and controversial issues relating to the definition of marriage, the recognition of validly contracted foreign marriages for the purposes of Australian domestic law, and adoption by same-sex couples.

The government has stated that this bill is necessary because of significant community concern about the possible erosion of the institution of marriage. But where is the evidence for that? It is obvious that there is homophobia out there in the community, but to say that gay marriage will erode the institution of marriage is rubbish. This is not the reason for this bill at all. The reality is otherwise. The government has admitted during this debate that the bill aims to head off court challenges in regard to the recognition of overseas marriages. We only have to look back to the Prime Minister's comments of August last year that gay marriages `do nothing to support the survival of the species' to realise where the government is coming from.

As I said, the Greens are fundamentally opposed to the position taken by the Prime Minister and the government on these matters. The Greens have developed detailed policy positions on the many issues facing lesbian, gay, bisexual, transgender and intersex people in Australia. I suggest that members of the House visit our web site and read those policies. There are many issues in there, and it would be very informative. These policies were developed over many years in close consultation with the community. The issue of marriage is just one of the many elements of discrimination these people face on a daily basis in this country. The Greens do not believe that allowing members of the LGBTI community to marry fundamentally undermines marriage. Indeed, such a desire can surely only strengthen it. If two people wish to make a public declaration of their love and longterm commitment, then their gender is irrelevant. We should remember that we are dealing here with the emotions, feelings and relationships of ordinary Australians. I am sure that there are many here in this place who feel that such issues should not be politicised, but they are being politicised.

It is obvious that there is a degree of homophobia behind the position taken by the government. Homophobia, for the members' interest, is defined as a fear of homosexuals, be they male, female or transgender, and is usually linked with hostility towards them. But I ask: why the fear? There is no reason for it, and there is no reason for the bill before us, apart from a desire to discriminate against ordinary Australians based upon their sexuality. A desire to commit to spend your life with another person and to have that commitment publicly recognised is an important tradition in our current social and cultural context. The government and opposition both suggest that we should blatantly discriminate in the area of marriage. How would people react if the parliament suggested that two people could not marry because of the colour of their skin or because of different religious beliefs? Members would say: `What an outrageous suggestion.' Yet we are clearly faced with discriminatory legislation here today. This is despite the fact that on 24 August 2001 the Prime Minister stated:

... people shouldn't be the subject of discrimination if they choose a particular lifestyle.

... ... ...

... I don't think people should be in any way penalised or discriminated against if they are homosexual. I mean I certainly don't practice any kind of discrimination against people on the grounds that they're homosexual, I think that is unfair.

This is inexcusable hypocrisy, for this bill clearly discriminates against homosexuals in our community. It is, in the words of the Prime Minister, therefore unfair. Has the Prime Minister's position changed since 2001? Does he now believe that we should actively discriminate against homosexuals—against the LGBTI community? Obviously the answer is yes, and this bill is evidence of that.

We have heard many worthy speeches in this debate, especially from this side of the House, on the issues of the history and status of marriage, on LGBTI relationships, on discrimination and on related issues in this country and overseas. The members for Gellibrand, Grayndler, Melbourne Ports and Fremantle covered these issues eloquently and in much detail, and I agree with many of their statements. It is therefore disheartening that the opposition will not be opposing this bill in total—that they will not be supporting those thousands of Australians in the gay community who want to live as a married couple, whether it be called a civil union or some other term, and who do not want to be discriminated against because of this. These people are not single; they are not living in de facto relationships. They are, for all intents and purposes, living in relationships as a married couple. We cannot stand here in this place and deny that. The ABS tells us that there were almost 20,000 such couples in Australia at the last census and that those numbers were probably substantially less than the real figures due to the nature of the census form, so we are talking about some 40,000 Australians at least.

At this point, it might be useful to make reference to an Alan Ramsey article which appeared in the Sydney Morning Herald on 29 May this year and which outlined just one aspect of the government's highly problematic approach towards recognition of same-sex partners. Ramsey outlined the case of Colin Hollis, a former Labor MP from the Illawarra, who went to New York to represent the Australian parliament at the United Nations in the same year the member for Makin took her now infamous study tour. Ramsey wrote:

... the besieged Howard Government now argues, in panic, that what Draper did four years ago was entirely proper and “within the rules”, while it insisted in July 2000 that Hollis must pay the air fare of his live-in partner of 36 years to go with him, even though his partner, a bloke, so scrupulously met all the rules of an MP's “nominee” that Janette Howard hosted him one year at her annual afternoon tea at The Lodge for MPs' “spouses and partners”.

How's that for hypocrisy fit to choke.

Ramsay's article quoted Colin Hollis directly on this issue. Mr Hollis said:

We took out a $10,000 bank loan and paid for Gordon's ticket ourselves. ... But what was so galling was the other MP who was going to the UN ... took his wife ... and they had their fares paid, yet while I met all the guidelines of a `genuine domestic relationship'—I mean, 36 years we've been together, joint bank accounts, joint ownership of our home, joint names on the bills, everything—I gave all this documentary evidence to the Department of Finance. ... They just wouldn't have it. ... everyone else has taken their partner on this trip over the years ... because you're away several months. Everyone, but not us.

Hollis took his case to the Human Rights and Equal Opportunity Commission in 2001 but lost on the strict definition of `spouse' in the legislation. Again, the government fought Hollis all the way. This blatant discrimination is an affront to fair-minded people everywhere.

For centuries, gay and lesbian people have made a phenomenal contribution to our society in all fields of endeavour. To suggest that by acknowledging gays and lesbians in marriage we will fundamentally erode the institution, and ultimately society, is ridiculous. To suggest that gays and lesbians cannot raise children with the same successful result as heterosexual people is also ridiculous. As we are all well aware, every family is different. If the government are so concerned about children having parents of different sexes perhaps they feel that single mothers or single fathers should have their children taken away from them. To judge a person's parenting ability with such a broad brush on the basis of their sexuality is ludicrous. And to suggest that these relationships are not worthy of the recognition of marriage is also ridiculous.

As I have suggested, the contribution of gay and lesbian people to our community has been enormous. Despite this, we still seem to be determined to discriminate. Some are willing to give in to the rantings and ravings of homophobes. For centuries many gay and lesbian people have been forced to hide their sexuality through fear of discrimination. Let us make no mistake: this legislation sets their cause backward—back to the fifties, I would suggest, a time period that the Prime Minister is obviously very comfortable with. I believe that acknowledgment and acceptance of the legitimacy of gay and lesbian people and of their love is inevitable; the community is very much supportive of that. But the government and opposition are today making that journey that much harder.

Graham Willett, in 2000, published a book called Living Out Loud: A History of Gay and Lesbian Activism in Australia. A description of this work by Paul Sendziuk, from the Department of History at Monash University, in 2001, provides a brief overview of gay and lesbian rights and cultural acceptance in Australia—and I think it is worth bringing this to the attention of the House. According to Sendziuk, Willett provides a chronological narrative which traces the construction of a homosexual `community' and the movement towards gay `liberation' and homosexual law reform in Australia. The book's three parts titled `Living', `Out' and `Loud' broadly characterise the emergence of homosexual visibility and vibrancy between 1950 and the present day. It surveys the so-called camp scene in the 1950s, a decade in which fear of violence and arrest stifled homosexual life and any ideas of political action—and we do not want to return to those days at all.

Although fear of bashing, employment discrimination and arrest kept most homosexual activities hidden, this did not prevent homosexual men or women from finding each other. By the late 1960s decriminalisation was on the minds of politicians, the clergy, newspaper editors and liberal reformers, both male and female. Not surprisingly, given the history of repression and violence, homosexuals were not among the many voicing their dissent publicly. As Dennis Altman has contended and Willett echoes, the arguments of these small `l' liberals were propelled by the emerging discourse of multiculturalism, which would also come to have a dramatic impact on public policy and attitudes concerning Indigenous people and immigrants.

The first gay rights organisations—the Daughters of Bilitis and the Campaign Against Moral Persecution, CAMP—were established in this country in 1970 and, from that point on, political activism became a permanent part of Australian homosexual life. These organisations and their leaders gave the inspiration for thousands of people—gay and straight—to become politically involved. Willett keenly relates the way in which they organised community meetings, established single--issue lobby groups and ran for parliament on a policy platform of gay rights. He also notes their opposition, the leading voice of which was the Reverend Fred Nile, a member of parliament in New South Wales, and his Festival of Light organisation. In the transition from `Out' to `Loud', Willett explains how homosexual activity between consenting adults was first decriminalised in 1975 under the Dunstan Labor government in South Australia, to be followed by reform of Commonwealth and Victorian legislation in 1978 and 1980 respectively. He also charts the growing support for the `gay agenda' in the community and the way in which a visible and vibrant homosexual community—nurtured by gay businesses, gay press, gay bars and sporting competitions—emerged in Australia's two largest cities. The author cautions however against assuming that the experience of Sydney and Melbourne gay men and lesbians and other members of the community was shared by their brothers and sisters in rural areas and provincial cities, some of which even now have still to form `communities' of homosexual men and women in any real sense.

I have certainly been made aware of the homophobia that has existed in the community in my electorate of Cunningham. Vile letters to the editor on this issue have appeared in the Illawarra Mercury since the Prime Minister raised the issue last year, and recently in response to my same-sex relationships bill—though I should point out to the House that the letters in support of gay marriage and gay rights have far outweighed the homophobic. This legislation does nothing to progress the rights of gay and lesbian people in this country; indeed, it deals them a blow. At present there is no definition of `marriage' in either the Marriage Act or the Family Law Act 1975. The issue of defining `marriage' in the Marriage Act was raised when the Marriage Bill was being debated in the Senate when it was first introduced in 1961. A Country Party senator unsuccessfully proposed that marriage should be defined and made a number of suggestions including:

... `marriage' means the union of one man with one woman for life to the exclusion of all others, such union being contracted in the manner provided in this Act ...

and:

... `marriage' means the voluntary union of one man with one woman, for life to the exclusion of all others ...

The last amendment was put to the vote and defeated by 40 votes to eight. While it can be argued that for the purposes of Australian law `marriage' does not include unions between persons of the same sex, it is also true that our understanding of who can contract a valid marriage under Australian domestic law is changing. For example, the Full Family Court was recently asked to make a declaration that a marriage between a post-operative transsexual person, `Kevin', who had been born female and a woman, `Jennifer', was a valid marriage. Both a single family court judge and later the Full Family Court declared the marriage valid. The Commonwealth intervened in the first proceedings and then appealed the single-judge decision to the full Family Court.

The amendments contained in schedule 1 of the bill will also mean that marriages between same-sex couples validly contracted overseas will not be recognised for the purposes of the Marriage Act. There have been newspaper reports in recent months that some Australian same-sex couples who have married overseas may seek a declaration from the Family Court that their marriages are valid in Australia. A number of overseas jurisdictions now allow same-sex partners to marry or enter civil unions.

Australia is a party to the Hague convention. Under article 9, the convention obliges Australia to recognise marriages validly entered into in foreign states. However, article 14 provides:

A Contracting State may refuse to recognize the validity of a marriage where such recognition is manifestly incompatible with its public policy (ordre public).

Same-sex marriages are not specified in the convention as marriages to which the convention does not apply, nor are they listed as an exception to the general obligation to recognise foreign marriages that are set out. Countries where gay marriage is allowed and where registered partnerships or civil unions are granted include the Netherlands, Belgium, Canada and the United States, where, this year, Massachusetts was the first US state to allow gay marriages. Countries considering gay marriage legislation include Spain, France and Sweden; while US states considering gay marriage legislation include California, New York, Rhode Island and Vermont.

It is an unfair and ridiculous situation that same-sex relationships all over this country—despite their longevity, despite their passion and love and despite their profound commitment—must be treated as `different' relationships. Australia has an opportunity here to be one of the most progressive and forward thinking in the world in relation to a whole range of issues, the recognition of same-sex relationships being just one of them. However, the government and opposition bury their heads in the sand, refusing to accept and support same-sex relationships as a normal part of Australian life in 2004. For this reason I cannot support this bill and I condemn the government for bringing it before the House.