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Thursday, 20 September 2012
Page: 7448


Senator HUMPHRIES (Australian Capital Territory) (10:15): I want to start by addressing the very unfortunate comments of Senator Whish-Wilson in this debate where he attempted to attribute the comments the other night of Senator Bernardi to the Liberal Party as a whole. I would have thought it was extremely obvious with what has happened in the last 24 hours that Senator Bernardi did not speak for the Liberal Party when it came to this legislation. So for Senator Whish-Wilson to in some way suggest that a vote for the Liberal Party represents a vote for the comments made by Senator Bernardi is disingenuous in the extreme.

I have three reasons to oppose this legislation but there is one reason that I am not opposed to this legislation. That is one ground I do not rely upon to oppose this legislation. I do not oppose it on the basis of some personal view about the appropriateness or otherwise of a same-sex relationship, whether acknowledged in the law or not. Like I think everybody in this place, I have gay friends and acquaintances. In the past I have employed gay members of staff. Nothing that I say in the course of this debate should be taken as a reflection on the value of their relationships. I rejoice that I live in a liberal democratic country where people have the freedom to make choices about their lifestyles and, as a small as well as large 'l' liberal, I wish that it will ever be so. That freedom is very important. But it has been said in this debate—both today and previously, and I heard Senator Stephens make this point—that the question here is not about the recognition at law of a same-sex relationship, the question is whether that ought to be elevated to the point of marriage.

It may surprise some advocates for this legislation that not all gay people believe that same-sex marriage is necessary for them to feel validated in their relationships. The arguments I put for my opposition to this legislation are, firstly, I am concerned about the legal confusion that remains as the basis for this legislation. I sat through at least part of the inquiry into the legislation through the Senate Legal and Constitutional Affairs Legislation Committee as its deputy chair. I asked a number of witnesses with a legal background what was the constitutional basis on which the federal parliament might legislate for marriage.

Of course, the argument here is that in 1900, when the Constitution was put together, no doubt the men in beards who largely were responsible for that process would have assumed without even thinking about it that the Commonwealth power in section 51 of the Constitution over marriage was a power over the marriage of a man and a woman. So the question arises as to whether, if this concept has changed now to something other than the marriage of a man and a woman, the Constitution still confers power on the Commonwealth to make such a law. I am not only one raising this legal confusion at the present time. I see that a number of state parliaments have been entertaining legislation to enact laws with respect to same-sex marriage. Clearly at least in their view there is an argument that that power does not belong to the Commonwealth. The Gilbert and Tobin Centre of Public Law, in the course of the inquiry, said that the case for the Commonwealth having the power to legislate for same-sex marriage was arguable but subject to some doubt. Other witnesses said flatly that there was no power for the Commonwealth to do this.

Normally if the Commonwealth proceeds to enact a law which is proven subsequently not to be well based constitutionally, the consequences can be messy but not irretrievable. When the Malaysian solution was struck down by the High Court, the greatest harm that was done was to the pride of the minister and, with respect, not much else flowed from that fact.

But in this case there is a very different set of circumstances that arise because if people undertake the act of being married under a law of the Commonwealth which is subsequently found not to be a valid law those marriages obviously fail. I think it is unacceptable for the Commonwealth to put people in the position of undertaking a ceremony of marriage when we do not know whether that act is in fact underpinned by the law of the land. This matter could be resolved by an amendment to the Constitution and I would invite those who advocate for same-sex marriage to consider proposing such an amendment to make it clear that that power exists. But in the meantime it is unsafe to pass legislation which may not survive challenge in the High Court because of the implications for those who undertake the ceremony believing that they may have a legal right to undertake a marriage.

The second point is one that has been picked up by earlier comments, that we are now dealing only with the symbolism of this relationship, not with the substance of rights. For many centuries the church administered marriage and the church conferred rights on people by virtue of their decision to marry each other. In recent centuries the state became involved because it saw that some people were being denied rights that could only be conferred by marriage, and a state version of marriage was enacted. In much more recent years the state has decided to remove the special attributes and rights that are attributable to a marriage and confer them on other sorts of relationships, such as people in de facto heterosexual relationships and, indeed, other forms of relationships including same-sex relationships.

I asked witnesses before the Senate inquiry if they could identify any rights which a person in a same-sex relationship did not enjoy today with respect to such things as superannuation or anything else that were enjoyed by a person in a married relationship and the witnesses indicated they needed to take the question on notice to go and find something that they considered might not put people in the same position. In fact, substantively we have removed discrimination on that basis. So the only thing that remains is the symbolism of the title 'marriage'. I believe that the state should now return that institution back to religion, back to the churches who administer it. If the state wants to sanctify or sanction or give special status to other relationships, it should find another term for that. It should leave marriage in the purview of the church, or religion to be more precise, where it belonged for at least a millennium.

Finally, I want to address an issue which has been raised in the course of the debate particularly by the Greens. It is the criticism of the fact that the coalition has not afforded members and senators a conscience vote on this issue. I want to remind senators that until a few months ago it was the position of both major parties — perhaps it was the position of the Greens as well; I am not entirely sure — that there should be a party position on this issue to which every elected member of that party had to subscribe by virtue of being a parliamentary representative of that party. From 2003 at least, I think, that was the position of the Australian Labor Party. At the last election every member of the Labor Party stood for election on the basis that they were using their vote in the federal parliament to ensure that a traditional definition of marriage, as between a man and a woman, would remain.

I accept the Labor Party has changed its position. I regret that on reasons of keeping faith with the electors but that is a matter for them. But I do not wear criticism from the Australian Greens about that matter because they know that if the Labor Party imposed a party line on this matter and did not allow a conscience vote in all likelihood the position of the Australian Labor Party would be that they would support unanimously — so every man and every woman in the parliamentary party would be voting in favour of — same-sex marriage, because that clearly is the majority viewpoint within the Australian Labor Party. It was reportedly only the intervention of the Prime Minister at the Labor Party conference earlier this year, which was heading towards a party line in favour of same-sex marriage, that prevented the party having that position. If the Labor Party had had a position in favour of same-sex marriage and every member had had to support that position, would the Greens have been complaining about that? I very much doubt it, because it would have delivered them the numbers to pass this bill. They would have been very happy with that position. They are unhappy about the fact that the coalition does not have a conscience vote because the Labor Party does have it, and it does not give them the numbers to pass this legislation, so it is as simple as that.

I am comfortable standing behind the position that I took to the last election and I note that of all the members that the ACT elected to the federal parliament, all of whom said at the election that they would oppose same-sex marriage, I am the only one who still holds to the position that I took to the electorate and I believe this reflects what is an appropriate compact with the people of the ACT from that election. I urge the Senate to reject this legislation.