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Thursday, 20 September 2012
Page: 7446


Senator STEPHENS (New South Wales) (10:05): I begin by saying I certainly believe this is a debate about national leadership. I very much believe that. The debate about same-sex marriage is about the function and purpose of the law in relation to marriage. It is not a discussion that goes to personal motivation and attitudes, as much as those supporting the bill would like it to be. Earlier this week you might recall that we debated the issue of the role of the state in the protection of the national interest in personal privacy. The state has a role to play there just as it has in this instance.

Like everybody who has spoken in this debate, I believe that every person in Australia deserves the right to have their needs met fairly and without discrimination. We have all come to this debate with values, experiences and ideals, and they have been contested across the chamber. Most people have made very worthy contributions to this debate, and I particularly want to commend Senator Dean Smith on his contribution.

I note the New South Wales government has signalled that it will introduce a similar bill into the New South Wales parliament in the event that the bill before us does not pass into law. I can only say that my experience of people contacting me from my home state of New South Wales has overwhelmingly been to ask my support for maintaining the status of marriage as it is currently defined in the act. It is significant, too, that everywhere same-sex marriage has been debated it starts with a focus on the issues of fairness, rights and justice and with majority support. But then people soon start to realise that there are deeper issues involved.

We have heard many claims, including the claims this morning, in the debate that the current law unfairly singles out people in same-sex relationships by not allowing them to have the same status as people who are married. That this is a denial of a 'right' that perpetuates discrimination, homophobia and depression is simply not true. What is true is that prejudice, fear and discrimination are not the results of the absence of legislation. They exist, despite the fact that the federal law in Australia has already been changed to give same-sex partners the same legal rights as those who are married and, as we have heard this morning, an increasing number of states to register their unions. There were 84 pieces of legislation amended in 2008. The Marriage Act is the only remaining piece of legislation, so that is not an issue of substantive discrimination. The remaining issue is, as I said, the definition of marriage.

Changing the law so that marriage includes same-sex unions would be a change to what marriage means to society. Marriage has a place in the law because a relationship between a man and a woman is the kind of relationship that may produce children. That is why marriage is linked to children; it is for the sake of children, protecting their identity and their care by their parents. The state would have no interest in the permanence and exclusivity of marriage if it were not for the fact that marriage may produce children.

I have spoken here, in the past, about the challenges that the use of reproductive technology, in separating reproduction from the biological relationship between a woman and a man, has created. In that situation, the law determines a child's parents if circumstances arise that might create any ambiguity. There are people in this chamber who have had personal experience of that. And, of course, I acknowledge these days that there are many different kinds of households who nurturing children, including those that could only have occurred through the use of reproductive technologies. We have heard passionate stories about them in this debate.

In all circumstances where children are nurtured, it is the state that has an ultimate in loco parentis interest in the welfare of children. It is for that reason that the state is involved in legislating to ensure the identity and status of children. In the same way, the state has an interest in marriage because the relationship between a man and a woman is capable of generating children. The state has an interest in the exclusiveness and the permanency of marriage because it needs to protect the identity and status of any children who result from the marriage, in the first instance, and to preserve their rights to know and to have access to both biological parents. The state supports marriage because children may result from it, and the state lacks a reason to legislate to promote relationships that do not produce children. So altering the definition of marriage to include relationships that are not the kind of relationship to generate children removes the primary basis and justification for the state's interest in marriage.

If children happen to be in a same-sex household, nothing actually alters the fact that they will always have come from outside that relationship, as loving as it may be, either through an earlier relationship or through the use of some other biological parent or some technology. If the law were to be changed so that marriage included same-sex relationships, then marriage would no longer be about children. It would be about adults only. That is the passionate argument that we have been hearing from people on both sides of the debate. It would be about putting the desires and wants of adults above the needs, wants and interests of children.

Through the state, society discourages married people from failing their obligations to each other and, hence, to their children, through property settlement requirements and child support arrangements, and it monitors these. The state records the births of children, the deaths of their natural parents and marital dissolution, all in the best interests of children. Similarly, the state tracks the complexities of assisted reproductive technology, the use of donors and surrogates, again for the sake of children.

I know that emotions run very, very high in this debate. I know that the senators who have spoken so passionately and personally about their desire for marriage equality are very genuine in their relationships and in their advocacy for change. My personal view, however, is that the traditional concept of marriage is consistently found across cultures throughout history. Marriage has always been understood in every society throughout recorded human history as being between a man and a woman. These arguments are not negated by marriage breakdown, the early death of a parent, the adoption of children, de facto relationships or the practice of step-parenting. We all acknowledge that we do not live in a perfect world, but, frankly, tragedy just does not justify the redefinition of marriage.

Gay couples in New South Wales, Victoria, Tasmania and the ACT are able to register their same-sex partnerships on a relationships register that provides public recognition and affirmation of their relationships. The move for same-sex marriage is therefore largely ideological because, as Senator Smith said: 'The right is to have our relationship recognised, the right is not to marriage.' No-one is done a real injustice when we positively honour and uphold marriage as it is currently understood. In a liberal democracy, people can form other types of relationships; but 'marriage' is a term reserved for a particular kind of relationship that brings with it obligations to people beyond the two parties. No-one is disadvantaged when a society retains a distinctive name for these lifelong, faithful, exclusive and potentially procreative relationships between men and women.

I have to say, though, that the drafters of the bill go to lengths to explain that this bill protects religious freedom by permitting a minister of religion, a person authorised under a state or territory law or a marriage celebrant to perform a marriage between same-sex couples and will permit that marriage to be recognised in Australian law. They want us to know that amendments to section 47 of the act will reinforce the existing provisions that ensure that a minister of religion is under no obligation to solemnise a marriage where the parties to that marriage are of the same sex. Frankly, that completely misunderstands the concerns of those seeking to support the status quo. The ethical considerations, the rights of children and the support for societal institutions provide the basis of genuine concerns about the consequences of such a bill passing into law.

While those who support the bill have accused people like me of discrimination, of cowardice and of homophobia, there continue to be community concerns about the notion of same-sex marriage and I am happy to represent those concerns in this debate. There are though sociological, anthropological, historical and bioethical issues at play here. These are all as legitimate as the spiritual and religious arguments that we have heard through the debate. I will not be supporting the bill.