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Legal and Constitutional Affairs Legislation Committee
03/05/2012

KENEALLY, The Hon. Kristina, Private capacity

KIRBY, The Hon. Michael Donald, Private capacity

[09:54]

CHAIR: While you are getting settled I need to explain that we have had so many submissions and we are trying to hear from as many people as we possibly can and, apart from the fact that you both support the bill, that is the only reason we have put you both together today. We are trying to maximise the number of people that we can possibly hear from. I now warmly welcome you both to our public hearing. Because we have got quite a number of us here and we do want to actually get involved in questions and dialogue, if you could keep your opening statements as short as possible that would be appreciated.

Ms Keneally : Thank you. I will be brief. I would like to thank the committee for the invitation to appear. I did not expect such an invitation, but if I can assist the committee, I am pleased to do so. Perhaps the useful contributions I can make to your hearings are twofold. Firstly, I am a legislator and a former government leader who supported successful legislation to afford same-sex couples the right to adopt children. This, of course, is a different legal issue from the one that you are considering, yet discussions around both legislative proposals do have some similarities.

Secondly, I can speak to the committee in an individual capacity as a person of faith, as a Catholic who has wrestled with her conscience and the teachings of her church on the issue of homosexuality broadly and same-sex marriage specifically. I do not claim to speak for any other Catholic except myself, but I am comfortable saying that I am not the only Catholic who has formed a view that is contrary to the church's teachings on same-sex marriage.

Finally, I welcome this hearing. I congratulate the committee members on your willingness to engage with the Australian people on this issue. As a person who supports the proposed amendment and supports changing the act to provide equality to same-sex couples, I am happy to contribute to your deliberations.

Mr Kirby : I also want to thank the committee for inviting me to come to this sitting. My links with this committee go back to 1975, when my good friend Senator Alan Missen was a member and chair of the committee. I want to thank the committee for its work over many years, with which I have been associated, in supporting law reform and, in particular, its support for the work of the Australian Law Reform Commission, which I had the honour to lead over a decade.

I had not originally intended to appear before the committee. But when I received the invitation from the committee I thought it was my duty to come, so I am here. I am not speaking as a former judge or public official. I am speaking as a private citizen, as an individual and as a citizen of Australia, Johan Van Vloten but also as a homosexual man who has been in a loving and stable relationship, with my partner Johan, over the past 43 years. I happen to have written a little memoir, which is a bestseller A Private Life Allen & Unwin, Sydney, 2011, . It describes the relationship and the difficulty of growing up in Australia in those early days as a homosexual person. I am going to leave a copy of the memoir for the committee, so that members or staff who wish to look at it can see whether there is any instruction in it from the point of view of the life of a person. Sometimes it is easier to understand these issues if you have them from the perspective of an individual and another human being. I do think it is important for this committee to look at the issue that is before it in historical terms. As a person who has been through many earlier phases of the struggle for equality and respect for human dignity for homosexual citizens, I hope that I can add some perspectives on that. I am old enough to have seen the beginning of the removal of the criminal laws which were in place against homosexual citizens. I want to pay respect to politicians who played an instrumental part in securing those reforms. One was Premier Don Dunstan in South Australia, which was the first state to secure the reforms of the criminal law. The other was the Hon. Bob Ellicott in the federal parliament, who secured the removal of the laws in the ACT.

The removal of those laws began a journey which is continuing and which is here before this committee today. In the 1990s, the antidiscrimination laws were enacted by the federal parliament. In 2008, the same-sex removal of discriminatory legislation affecting more than 100 federal statutes were changed, I think with the support of basically all members of the federal parliament. The Judges' Pensions Act, which affected me, was amended at that time to protect my partner and to ensure that he was not disrespected and will be protected as he would have been if he were a heterosexual partner of a judge. It is important to see proposed measures in the context of the steps to change the law. We are now at the point of considering the respect for relationships.

I think it is important to realise that at every step of that journey the steps that were taken were opposed by churches. It is a sad thing for me, because like former Premier Keneally I am a christian: amember of the Anglican Church. I am proud to be a Christian. My partner is not. He cannot understand how I can stick with religion, but that is my business and it is a private business. In our secular tradition, it is something I would not have mentioned except that it is a source of great sadness to me to see how over the decades every step on this journey has been fought by the Christian churches and by other churches and religious denominations. But it is not true to say that that is a unanimous voice within the churches. I also table and make available a book, the foreword of which I have written, called Five Uneasy Pieces. It is written by five Anglican theologians who do not identify as homosexual, but who point out that the passages in holy scripture that are generally used to justify to discrimination against homosexual people, and which are at the foundation of the opposition to the legal rights of homosexual people, are subject to different interpretations.

It may be of interest to members of the committee to have that book. It is quite a popular book and it shows what an unstable situation has now been reached in the relationship between religion and the religions of the book and homosexual people. Religions now generally accept that homosexuality is not a lifestyle. It is not something you choose. It is, as my own life has demonstrated, something that you discover as you are growing up. It is part of you. It is like being left-handed. My brother is left-handed and I am gay. It is just an aspect of your personality that society has to accept and to come to terms with.

My hope is that this committee will take the next logical step of permitting all recognition of a relationship such as mine, of 43 years of love, of support, of tenderness, of telling me where I am wrong and putting me right when I need to be put right, and of being there when times are good and when times are hard. I hope this committee will take the next step in the great tradition of the committee going back to the time when I first knew it with Alan Missen and that it will advise the Senate and the federal parliament that that is the next step in this journey. It is a step whose time has come.

CHAIR: Thank you very much.

Senator HUMPHRIES: I thank you both for the submissions you put forward. In my opinion, they amount to quite strong arguments for treating gay and lesbian people with dignity and respect. If I can interpret what parliament might think, I do not think many people in the parliament would want to refute or deny that general sentiment. The concern that some members of the committee had and some members of the parliament will have is about the extent to which the so-called right to the institution of marriage, for people in a same-sex relationship to access that institution, and the question of whether it does damage to or derogates from the institution that other people presently enjoy and certainly in the case of many people would feel was undermined or degraded because it no longer represented a marriage between a man and a woman.

That brings me to the question which I asked of the previous witnesses, and I think you were here, Your Honour, when I asked that question about whether access to same-sex marriage is a right or whether it is simply a reflection of the values of contemporary society, because different considerations would apply depending on which basis one decides to proceed to consider this question.

Mr Kirby : As the federal parliament amended the Marriage Act in, I think, 2004, access to marriage equally by heterosexual, homosexual and bisexual people is not currently a right; indeed, it is forbidden. Not only is it forbidden, but. if it has been secured in some other jurisdiction where it is permitted—and they are growing in number and in significance—it cannot be recognised in this country. Therefore, at the moment, it is not a right. But the issue that is before the committee and the parliament in these two bills is whether it should be made a right by the parliament, and that is the question that the committee has to come to terms with.

Senator HUMPHRIES: I suppose I meant 'right' in the broader sense of something that one would call inherently attributable to human beings, which laws do not always acknowledge but which nonetheless are there because people are human beings. For example, in many countries there is no right to all sorts of things that we have rights to here but we would argue, I am sure, that citizens of those countries still have those inherent rights as human beings irrespective of the fact that the laws of those countries did not actually provide them. So, in that sense, is there a right to same-sex marriage?

Mr Kirby : It is difficult for me as a lawyer to put out of my mind the whole body of international human rights jurisprudence on this issue. As you would know in this committee, there is a provision in the Universal Declaration of Human Rights saying that every man and woman has a right to marriage. There is a controversy as to whether that provides in the language of 1948 a universal human right to marry. I think it may be that the majority view nowadays is that it does so provide. But the question which has been presented by the increasing number of countries which have enacted the legal right to marry is whether that is a step which we should take in Australia.

We were once a most innovative country legally. At the beginning of the 20th century we were the first, with New Zealand, to give women the right to vote and the right to stand for election to a parliament. We were the first to adopt testator's family maintenance legislation. We were amongst the first to adopt the conciliation and arbitration of industrial disputes. But we have not been a very innovative country in recent times. In fact, now we have been overtaken by countries such as Portugal, Spain, Argentina, the Federal District, Mexico—countries which we would not normally think to be in advance of the entitlement, of our citizens. Therefore, if the question is, 'Is this a right?', well, it is one which in the last 20 years has really extended very greatly and in very large numbers in many countries, mostly countries of our legal tradition. At appears that it is about to take the step in the United Kingdom because of the commitment of Prime Minister David Cameron, saying that this is something which he was supporting because he was a Conservative not despite the fact that he is a Conservative. So my own view is that it is now a right; it is a right which Australians would expect.

Senator HUMPHRIES: You acknowledge that that is not entirely clear, though, from documents like the International Covenant on Civil and Political Rights? I think the document, when it comes to marriage, refers to the right of men and women to marry, whereas the rest of the document accords rights to people or a person. You acknowledge there is some controversy about whether that, indeed, is a right acknowledge in that document? Is the right you describe depend on that international document or other international documents according that right or does it have some other basis?

Mr Kirby : I have the greatest respect for the Universal Declaration of Human Rights; I was given a copy of it in 1950 as a small boy at a public school in New South Wales. Naturally it is written in the language and in the context of 1948 when Eleanor Roosevelt chaired the committee which produced the universal declaration. There is certainly a lot of writing in the field that says the language is conformable with this being an emerging human right, and the record of the acts of legislatures, both of the common law and the civil law tradition in many countries in recent years does tend to give support to the view that looking at it today as a text, just as one must look at, in my respectful view, the Bible today. Looking at it with today's eyes it is something which is provided for citizens by secular legislatures in secular countries but not forcing people of religious views which are antithetical to perform ceremonies if that is contrary to their views. I do not know of anybody who is homosexual who would want to do that. My understanding is that section 47 of the Marriage Act will protect religious people from being put in that conflict of conscience.

Senator PRATT: You have done a lot of work on international and Australian law, and clearly the law changed back in 2004 to explicitly put 'man' and 'woman' into the Marriage Act. Nigeria has currently done a similar thing, but also criminalising homosexual in that country. You have written a lot about the intersection law, health, mental health and, indeed, HIV prevention. I wanted to ask you about that international comparison and whether Australia is setting a good example.

Mr Kirby : By sheer coincidence I have been invited in the last two days to go to Nigeria to address the judges of Nigeria. I do not know why they want me to come and I do not know whether it is on this particular issue. But I will take the opportunity when I am there to explain to them, in respectful terms what is happening in the world. Look at our world. In the paper which was dedicated to the memory of a great Australian, Dame Roma Mitchell, which I have made available to the committee, I have recorded the steps that have been taken in a relatively short time. I do not think the committee should be really surprised that that is a short time, because, once science showed that homosexual orientation, bisexual orientation or transsexual identify existed and is not a choice—it is not an antisocial choice that you have made; it is just part of one of nature's many variations—once that is realised and that you are not just an evil person who is defying nature and defying your family and society and your church, then it becomes impossible to say, 'You should not have the full rights of citizenship,' whatever they may be. That is why this issue has been presented quite quickly by the developments of science. That is why it is painful to a person of faith to see the churches which have now accepted that. I believe that all the churches in Australia say, 'You must not be nasty to homosexuals; you must not discriminate against them. 'But they do not take the next logical step of saying that 'you must remove all the legislative barriers'. In fact, they fight those steps every step of the way. This is why this committee has this investigation at the moment.

Senator PRATT: I would like to ask about the legal definition of a man and a woman. I think the organisation Intersex International Australia will be at the hearing this afternoon. They have submitted that there are some people of indeterminate gender; that they are genetically so and, therefore, they have the right to marry no one because they cannot identify genetically as either gender. And legally, nor would they necessarily want to when their genetics dictate that they are neither one or the other.

Mr Kirby : I think there have been some steps recently in a decision of the High Court of Australia from Western Australia, which has made it better—I think—from the point of view of transsexual citizens of this country. In fact, an earlier decision by Justice Chisholm in the Family Court, which was fought almost all the way—it did not come to the High Court—tried to adopt the old common law position that you were fixed at birth as a man or a woman and that you had to accept that.

Enlightenment comes with science. It has now brought to us a greater understanding of the variations of human sexuality. If you look at this historically you can see that the steps that were taken—the criminal law, the antidiscrimination and the financial—were all part of a reaction to the discoveries of science. The question, essentially, for the committee is: do we leave it at matters such as money but deny fellow citizens the respect and dignity of their relationship? Do you say, 'Well, we will fix up the pension, but we really don't like you very much and we wish you weren't there. We wish you would go away and not make us think about this problem. And we won't recognise your relationship,'—although in every respect, I can tell the members of the committee that having grown up in a loving, heterosexual family, and being surrounded by siblings with loving heterosexual relationships, mine is accepted by my entire family as the same loving relationship. It is a great blessing.

One of the most important submissions before the committee, I respectfully suggest, is a submission which points to the great health benefits of stable, human, one-to-one relationships. They are very important features of psychic and physical health. It has been a great blessing in my life. Ultimately, that is what persuaded me to come along this morning, even though I did not wish to intrude into the work of the committee. But at its invitation I came to tell the committee that a loving relationship of tenderness, gentleness, affection, fidelity and support is a beautiful thing in a human existence. Anyone who would disrespect it is really not a kind person.

Senator PRATT: Can I ask you both just briefly about the plight of couples who have been married but where one partner actually does want to change gender? These couples often have children and they want to stay married, but that one person is denied the capacity to change their gender because the law currently requires those people to divorce in order actually to have that recognition. This is about trying to avoid that supposed quandary of same-sex marriage. What would a situation like that indicate to you when, I suppose, these are tender and loving but also very committed existing family relationships and existing marriages?

Mr Kirby : I think Senator Humphries hit this one on the head when he said there is no constituency, really, for a change in this. Examination of the history shows—as my life and the lives of the members of the committee will show—that you are never at the last step in the journey. The journey continues. We do not know what the future decades may hold in terms of relationships. I have known homosexual people in a relationship of three. I have known a couple who married as heterosexuals but who then discovered or were willing to acknowledge a homosexual element in one of them and accepted that reality. Human relationships are complicated, but these, I would respectfully suggest, are issues for the future.

Senator PRATT: With respect, there are couples, and their children, who face this legal quandary now in that they cannot access their entitlements under state gender reassignment acts because those acts require them to divorce in order to have their gender reassigned.

Mr Kirby : Yes, I think there was a case in the Family Court about that—

Senator PRATT: Yes.

Mr Kirby : The judge of the court said that this was a defect in the language of the Family Law Act about the natural father not being able to have access to the child of the heterosexual relationship. Obviously, that should be fixed up by parliament. Obviously, a natural father should have access to the child, I would think, in my humble personal opinion. That, I respectfully suggest, is different from focusing on the issue now—which is an issue that has presented in South Africa, Canada, the United States and many other countries—of whether stable, one-to-one long-term relationships should be available to homosexual citizens.

Senator PRATT: Thanks.

Senator CASH: Just following up on the arguments about equality and equity in relationship choices, we have said previously that it is entirely rational to consider the potential consequences, where the logic of marriage equality might take us—or as I put it to a previous witness: are we at this time talking only about marriage equality for homosexual couples?

Mr Kirby : It is entirely reasonable to ask where the logic takes us. As a lawyer and as a judge that is something one has to do all the time. But, if we look at the countries that have accepted recognition of equality for homosexual couples and bisexual couples, there has not actually been a stampede of demand for trios, quadruples and other relationships. It has not led, in my respectful view, to any damage to heterosexual relationships. I have never had a satisfactory explanation made to me of how my loving relationship of 43 years with my partner has in any way damaged the institution of marriage or would, if marriage were available to us, damage that relationship, diminish it or degrade it in any fashion whatsoever. On the contrary, I would respectfully suggest that securing access to marriage entitlements would encourage stable relationships, and the committee—

Senator CASH: But only where two people are concerned in a homosexual relationship. What I am putting to you is: are you limiting the definition of equity and equality in relationships to purely a man and a woman, whether they be heterosexual or homosexual; or are you saying there should be equity and equality in relationships regardless of, for example, the number of people participating in that relationship?

Mr Kirby : The parliament looks at legislation from time to time. Nothing is finally written. The question that is before the parliament at the moment is the question of equality for homosexual people. There may be, in some future time, some other question. The lesson in courts and in the parliament, I suggest, is that you take matters step by step. If you try to solve every issue, you end up solving none. Sir Zelman Cowen once said to me that the problem with law reform is often that, like the centipede. The beast cannot decide which leg to put forward first and therefore nothing happens. But in the two measures that are before the parliament at the moment there is a specificity. It is a specificity which I would respectfully suggest the committee, whilst considering long-term questions, should concentrate on. It would not be a novel step for our parliament. In fact, we are behind Argentina, Portugal, Spain and other countries which we would not normally think of as competitors in giving equal rights to citizens. This would be quite a modest step, in my opinion.

Senator CASH: That is the point: it is a modest step. So what would you say to polygamists who are now agitating for the same rights as homosexual couples? Would you say, 'It is not your time just yet'?

Mr Kirby : That is what has been said to homosexuals for many years.

Senator CASH: That is my point. So you are asking for equity and equality in relation to only homosexual couples? You are saying it is a right being denied to homosexual couples. Is it not a right that polygamous relationships should have?

Mr Kirby : If the committee is going to address all of the implications and make recommendations for everybody who might in different relationships be possibly entitled to some future legal status then I would acknowledge that that is the committee's right. But I would suggest that it should not be used as a reason for delaying the right to the constituency which is really affected by this and which, by analogy to developments that have happened in other countries of the world, is really before the committee, which is people like me who have been in a stable homosexual relationship for 43 years and are denied equality. I rose to significant judicial office in this country, but I was always, legally, a second-class citizen. I am still a second-class citizen. The question before the committee is whether that will be changed. I would suggest that many people are looking to the committee and to the parliament to see whether that is what will happen.

CHAIR: Ms Keneally, I wanted to ask you a question in relation to your submission. I also identify as Catholic, coming from a strong Catholic background, so I am interested in your analysis about the role of your conscience versus a declaration against Vatican Council and the conclusion that you have come to in your submission about the role of loving relationships and accepting the science that people who are homosexual are derivative of science and not some sort of perversion. I wondered whether you wanted to take the opportunity for a few minutes to take us through your journey as to how you have come to that conclusion.

Ms Keneally : I will seek not to repeat many of the things that have been said. I think the committee is very fortunate to have a man of Justice Kirby's stature, intellect and personal experience able to contribute today. I will seek not to repeat some of the things he has said, but I would like to suggest to the committee, bouncing off one of the questions that Senator Humphries asked, that another source they may wish to look at is a writer named Andrew Sullivan. Andrew Sullivan is a British conservative Catholic who is also gay and who writes very convincingly on why marriage as an institution is upheld rather than undermined when it is accorded to same-sex couples. His argument is this: if we as a community believe that marriage is the best basis by which families should form, if we believe it provides, as the Justice has alluded to, benefits in health, wellbeing, longevity and stability, we therefore should be encouraging all families, heterosexual and homosexual, to form within the institution of marriage. If you set up other types of relationships—say, relationship registers or civil unions—Andrew Sullivan argues, and I think there is much merit to this, that you devalue marriage for the whole of the community. You are setting up other forms of relationship that undercut marriage—that is, making other forms of union possible, not just for homosexuals but for heterosexuals. You undermine the institution of marriage when you legalise other forms of relationship rather than grant the right to enter the institution of marriage to same-sex and heterosexual couples.

On the question you asked, Senator—and I am happy if anyone has specific questions—I think the submission that I provided speaks quite honestly about my experience growing up as a Catholic and wrestling with my conscience. But I do think it is worth reflecting on this very briefly, only because—and the Hon. Michael Kirby is correct—the churches always have put up resistance to these sorts of changes. Indeed, the Catholic bishops are actively doing so in Australia. That means they have entered this political argument, and I think that puts their view into the political realm and means it is worthy of consideration by this committee.

There are a range and number of Catholic teachings. I will not go here into the hierarchy of Catholic teachings and fallibility et cetera. There are two letters from the Sacred Congregation for the Doctrine of the Faith that quite aptly summarise the church's teaching on homosexuality and sexual ethics. But for me as a Catholic, overriding all of that are the teachings of the Second Vatican Council. The Vatican council is amongst the highest of the Magisterium's bodies to issue teachings. The Second Vatican Council made very clear that Catholics have a responsibility to form their conscience and a Catholic who has properly formed their conscience cannot be compelled to act contrary to it. Father Frank Brennan and others have written quite eloquently about this. It is of particular importance as Catholics across Australia receive letters from their bishops that they also be aware they are compelled by the Second Vatican Council to properly form their conscience on this issue.

The committee's work here today allows many of the issues to be ventilated, and I would encourage Catholics in particular to make sure they have the opportunity when forming their conscience to read many of the submissions and to read the transcripts of this hearing.

Senator BIRMINGHAM: Thank you both for your evidence today. Can I ask you both as people of faith, as we have canvassed, but also as people who have experience not just in the writing and interpreting of laws but also in the public perception that goes with those laws, whether you think the existing framework around the Marriage Act and the bills that are before the parliament provide a sufficient distinction between the civil institution of marriage and the religious institution of marriage, and whether there is anything that could or should be done to enhance that distinction in a way that might provide some comfort to those who worry that this change undermines what they often see as the traditional interpretation of marriage through that religious institutional framework?

Ms Keneally : I believe that Australians—and that includes Australians of faith—understand the distinction between the religious understanding of marriage and the civil definition of it. I believe that Australians understand that churches have the right upheld not to provide marriage to anyone who rocks up to the church door and asks for it. For example, I am a Catholic; my husband is a Catholic, but were he a divorced Catholic we might have had great difficulty being married within the Catholic Church. They have a right of refusal, if you will, based on their teachings. I cannot imagine there is anyone who would seriously be arguing that churches should be compelled to marry people to whom they do not want to grant that sacrament. As you would know—and I think we would all know, as legislators—legislation is replete with examples of where a distinction is given and an exemption is granted. When we enacted the same-sex adoption legislation in New South Wales, it was universally accepted across the parliament that one of the exemptions that had to be in the bill was that faith based adoption agencies would not be required to provide adoption services to same-sex couples if that was in violation of their teachings.

Mr Kirby : The provision for the power to the federal parliament, in respect of the word 'marriage' in the Constitution, appears in a constitution which for two reasons has to be given a secular interpretation. The first is the long history of English constitutionalism. Following the religious wars in Tudor England, England really established the first historically secular society. Secularism, I have always thought, is a protection not only for people of no religion but also for people of religion. So that they did not keep burning each other and killing each other because they disagree. As well as that, we have in our Constitution section 116, which expressly signals that the Constitution is intended to be a highly secular document. Our history since 1901 has been substantially that members of parliament have their private faiths but do not try to impose those on other people, especially when the issue is drawn to their notice.

It is true that in Napoleonic countries, and in most of the civil law countries, marriage was not something delegated to churches. This was something the Church of England got the monopoly on. In fact, Roman Catholics in England could not get married, up until quite recent centuries, except in an Anglican church. That delegation of the state power to marry continued as a practice for convenience. But in the federal Constitution of Australia it appears in a constitution which historically, politically and in terms in 116 is a secular document. Therefore I think the committee has to be careful in introducing the religious elements into the matter if it is intended to somehow circumscribe or control the meaning of the word in the Constitution.

Senator BIRMINGHAM: In some countries, some of which you have mentioned, Mr Kirby, the ceremonies and the processes for civil marriage are distinctly different from those for religious marriage, and are undertaken as separate operations as such. I am not saying that should be the case in Australia, but do you think there is anything we could or should look at in our laws that would reinforce that sense of distinction for the community generally?

Mr Kirby : If we were starting again we would possibly go the way the Napoleonic countries have. What happens in Europe, and what happens in my partner's family, is that they get the marriage at the town hall and then they traipse down the street to either the Catholic or the evangelical church to have a wedding if they want a wedding as well as a marriage.

In a sense, this has already begun to happen in Australia. My understanding is that the statistics show that two-thirds of Australians are now getting married by secular process. Therefore I think it can be fairly said that Australians know, in their wisdom, that the sanctification of marriage is not universal and is not essential. It is felt by some to be desirable but it is not part and parcel of the definition. Young people are going to marriage celebrant ceremonies all the time. They see it happening in parks, in gardens and in public buildings, so they know this is not necessarily a religious occasion.

Senator BIRMINGHAM: A vineyard, in my case.

Mr Kirby : Yes, I have been to a vineyard marriage, too—and very nice they are—and I would like to have that opportunity myself.

Senator HANSON-YOUNG: Thank you to both of you for coming today. Obviously this is the second time that I have put this bill before the Senate. Since 2009, even public opinion, let alone opinion within the parliament, has shifted considerably. I would like to think, Justice Kirby, that you would be able to get married in a vineyard sometime soon; that is what I would like to see happen. What message do you have to my colleagues in the federal parliament who are still unsure about this, whether it is because of their own personal religious beliefs or indeed their concern about what the electorate believes and thinks?

Ms Keneally : Since I have been in the New South Wales parliament we have had several pieces of legislation that have sought to accord greater rights to homosexual people. Those have always been voted as conscience votes. What I have seen amongst my colleagues—and I am very proud to say this—is people who have genuinely engaged with the issues, genuinely sought to hear points of view—even if they were different from the point of view that that person thought they had—and genuinely engaged with their electorates. I have seen members of parliament who have strong religious convictions and who thought they might have had one position end up voting in a way that perhaps would have surprised them had you told them a year earlier that that was what they were likely to do. That is because those legislators have taken seriously their job as legislators: to engage with the issues and to engage with their electorate.

I have also seen many people start out with fear or trepidation about what their electorate might think. Indeed, I know that one of my first votes in this parliament was a conscience vote on an issue that sought to change the law around the age of consent and equalise it between homosexual and heterosexual couples. I have an electorate that is quite significantly religious, both Catholic and Greek Orthodox, and what I found is that there was not an overwhelming push back from what you might think is a naturally conservative constituency on those issues. In fact, what I found was that people respected that I, as a legislator—and my colleagues found this—spoke to them clearly and honestly about their values, their views, their questions and their concerns, and engaged with those issues in that way.

These sorts of conscience votes are sometimes the most difficult for people to cast, but they are also the most important, that people take very seriously. I think people often overstate the reaction of an electorate, and what I find for myself and what I know my colleagues on both sides have found—I speak not just about Labor colleagues; I speak about the breadth of the House—is that when you do engage with your electorate you find that opinion has shifted. I agree with you Senator Hanson-Young; I believe it has as well. I think members also find that the fear that we are going to be somehow electorally punished is not real and has no basis. In fact, I think what they find is that the opportunity, the part of a decision that accords greater rights to more Australians, is quite a momentous one and one that as a legislator is a tremendous opportunity and a privilege to be a part of.

Mr Kirby : There have been a couple of references to me as Justice Kirby and whilst I know that that was intended to be courteous—

Senator HANSON-YOUNG: I apologise.

Mr Kirby : it is not a title I ever use myself. I am only speaking here as a private individual today and I am not purporting to speak as a justice. Having been a judge for so very long, I do not feel very comfortable talking of the political issues, and I am happy that the Hon. Kristina Keneally has spoken of the political issues. I think there was a time not so long ago that there would not have been so much talk about religion. I think it is an American feature that has slipped into our country and I do not think it is a good feature. I think religion is your private position and that is a protection of secularism for all religions and people of no religion. I have had a very creative relationship with my partner. He says, 'I can't understand how you can take religion seriously given how nasty they've been to people of colour, to women and to gays.' But religion is my private zone. I think that is how members of parliament should keep it. They should act with principle for their fellow citizens and deal with them equally and make their own conscientious decisions on matters of this kind. I hope they will.

CHAIR: Thank you both very much for your submissions and for making yourselves available this morning. We do appreciate your time and your views in assisting us in this matter.

Proceedings suspended from 10:45 to 11:03