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Thursday, 12 August 2004
Page: 26507

Senator GREIG (2:13 PM) —Imagine if I were to stand in this chamber and boldly announce that Jewish people were shameful, vile, immoral terrorists, or if I were to claim that interracial relationships—those between Aborigines and white people—were unnatural, inherently unstable, highly promiscuous and harmful to children, or if I were to go even further and argue that children raised by interracial parents suffered from shame or guilt or that people involved in interracial relationships were mentally ill with a psychiatric disorder. I do not believe those things. I would not say them. I know them to be untrue. I would condemn anybody who said such appalling and shocking things.

However, last Wednesday here in the Great Hall of Parliament House I witnessed a huge gathering of mostly fundamentalist Christians and other assorted far right wing and antigay groups make those exact claims against gay and lesbian people and their children. It would be utterly unthinkable that the parliament's Presiding Officers would grant the use of the Great Hall to, say, the League of Rights so that it could hold a public forum entitled `Traditional Gentile Values' and use that forum to reinforce fear and loathing of Jewish people. Yet our Presiding Officers allowed the use of the Great Hall by antigay groups to reinforce fear and loathing of homosexual people. Why?

To answer that question we need to understand the context in which this debate is taking place and to understand that the so-called debate over traditional marriage is nothing of the sort. That is a smokescreen. The underlying issues here are the place of gay and lesbian people in society, their rights and responsibilities and whether or not they and their children are accorded full citizenship or defined as `less than' citizens and regulated as second-class citizens.

This is a clash between sex, politics and religion. It is being pushed by religious zealots and deeply conservative MPs. It is not a debate being driven by the lesbian and gay community itself. However, now that that community is under attack, it must respond. I am conscious as I give this speech that I am not talking to those in this chamber or even those who might be listening elsewhere; I am speaking to researchers, students and scholars in the future—perhaps 10, 20 or 30 years down the track—who will be looking at the Hansard debates over this in bewilderment, trying to understand how such an awful law could have happened.

Looking back on same-sex marriage ban from the future will be like looking back on debates around the introduction of the White Australia Policy. As it happens, `marriage' has never been clearly defined in our legislation as specifically heterosexual. However, it is very clear that the common law has evolved into an opposite-sex-partner understanding of the institution. Internationally over the last few years other jurisdictions have come to accept same-sex marriage as being equally valid. Such places include Denmark, the Netherlands, Canada and several US states. In this context, it was inevitable that same-sex couples from Australia would lawfully marry overseas and then seek to have that marriage validated here in Australia. The government has known of that prospect for more than a year, but it has waited until the eve of a pending election to embark on and announce this antigay policy response and to use the issue as an election wedge to target a minority, unsettle Labor and corral conservative voters. Gay marriage has sailed into this election much like the Tampa did in 2001.

There are at least two test cases before the Australian courts seeking a declaration of a same-sex marriage conducted overseas and, contrary to the dishonest claims of antigay groups, that is not a political action by the mythical and militant gay lobby to undermine the very foundations of society but an action by two very unassuming couples who engaged the courts out of their own volition. I have not met either couple. One of these couples includes a Canadian national, a person whose marriage is lawful in Canada but about to become unlawful in Australia—a ridiculous situation. It is probably the case that the courts would be unlikely to find in favour of same-sex marriage. I think the conservative fears of a positive outcome by so-called activist judges are unfounded. However, we Democrats believe it is important and helpful for the courts to be allowed to make a determination on this, and it is a key reason why we argued for a Senate inquiry to investigate the broader issues around the Marriage Amendment Bill 2004 and to not report until 7 October this year, thus allowing the courts further time to consider the matter.

The Prime Minister has been suggesting that if the courts decide in favour of gay marriage nothing can be done about it, and antigay groups have been claiming that the courts must be stopped from redefining marriage or society will collapse. This is nonsense. Even if the courts do decide in favour of same-sex marriages, parliament still has the right to legislate against that and, indeed, would do so, given the current policy position of both major parties. There is no need for rush and haste. The Australian citizens who have their cases before the legal system deserve their day in court. Natural justice should have been allowed to take place. Rushing to extinguish legal avenues is despicable. Does the Prime Minister believe that no question of human rights should be left to the courts?

It has been ironic for me to have seen this debate unfold. As I said earlier, in my 16 years of gay and lesbian rights activism and advocacy, marriage has been way down the agenda. It has never been a priority in the lesbian and gay community. Many indeed see it as a bankrupt and failing heterosexual institution based on patriarchal principles. Others feel that seeking gay marriage is heterosexual mimicry and want no part in it. But there are, of course, many long-term, same-sex couples who really do want to get married and, despite the general apathy in the gay and lesbian community around Australia, none of them have said that the option of civil marriage should be denied to same-sex couples. While they may not want it for themselves, they agree it should not be denied to those who want it. Not wanting to get married is one thing; suddenly being told that you cannot is quite another, especially when some of the arguments used for that are that lesbian and gay people are shameful, vile moral terrorists with unnatural relationships who are harmful to children, mentally ill and spread disease. This is most especially the case when there has not been one single, solitary, sensible or provable argument against same-sex marriage. It is all a smokescreen to disguise underlying homophobia.

Same-sex marriage opponents argue that traditional marriage is a Christian instruction and that Australia is founded on Judeo-Christian values. Apart from the fact that Hindus, Muslims, Rastafarians and all other manner of non-Christian sects also embrace marriage, the fact is that parliament is a secular institution and that marriage is a civil contract and not a religious one. Same-sex marriage opponents say that marriage is a fundamental institution of civilisation and must not be redefined. But, as researchers and historians continue to point out, marriage is an evolving paradigm. Conservative social commentator Andrew Sullivan writes:

... for the first millennium after Christ, Christianity didn't even recognise marriage as a sacrament, it was regarded as a purely secular matter of property ownership. Marriage also once meant the ownership of women by men, it was once permanent, and no divorce was possible, it was once restricted to couples of the same race, the notion that it has never changed is simply untrue.

Besides, if marriage is the unshakable and rock solid institution that conservative MPs and religious leaders would have us believe, could they explain why 40 per cent of marriages end in separation and divorce and why more and more people are choosing not to marry? In truth, marriage is not a rock solid institution. In Australia it is growing weaker and less important to many people with each passing decade. Far from further weakening the institution, the inclusion of gay and lesbian couples brings added strength. Conservatives should embrace the fact that a new group of citizens want to be included in an institution that clearly needs reinforcing.

Opponents of gay marriage argue that the proposal is a threat to general society and that the traditional marriage needs to be protected. What exactly is this threat? As Andrew Sullivan said:

Are some people trying to break up other people's marriages? Are people proposing to abolish civil marriage? Are divorce laws going to be loosened further? The answer is that a small group of citizens, far from wanting to threaten marriage, actually want to participate in it.

Same-sex marriage opponents argue that marriage is about having kids and raising a family and that marriage is the best environment in which to do that. This is all well and good but it does not explain why gay and lesbian couples raising children should be denied marriage. If marriage is the best way in which to raise children, why would we as a parliament want to disadvantage children in same-sex families by refusing their parents the right to marry? But marriage is not about having children. Infertile couples are allowed to marry. Elderly couples are allowed to marry. Couples who do marry but decide not to have children are not then made to divorce. Being married and having children are not axiomatic. This cannot be used as a valid argument to deny same-sex couples the option of civil marriage. Many same-sex couples have children; many heterosexual couples do not.

Opponents of same-sex marriage have also argued that marriage is a sacred commitment based on love, trust and togetherness and a symbolic demonstration to friends and family and to society as a whole that this couple is socially, legally and financially intertwined. Leaving aside the fact that sacredness and sanctity are religious ideals and that marriage is a civil contract and not a religious one, gay marriage opponents have still not been able to say why same-sex couples do not have or share the same values. Gay and lesbian relationships are also based on love, trust and togetherness and many of them too yearn for a symbolic demonstration and the practical advantages of being married. They too want to share their commitment with their friends and family, most especially if they are raising children or plan to do so. It is both wrong and deeply offensive for antigay campaigners to argue that love and commitment between a lesbian or gay couple is less than, different from or incomparable to the love of two people of the opposite sex. This is really where we get to the crux of the issue; this is the core of the debate which is mostly hidden and rarely spoken about. There is an ideological push behind this from very conservative MPs and some religious communities to ensure that same-sex relationships are relegated to second-class and never equate to marriage. It is just an extension of the sexuality apartheid I have spoken of before. Denying marriage to same-sex couples is about entrenching heterosexual supremacy.

For the religious Right, marriage is seen as the last bastion of conservative values. Over the last 20 years we have seen most discrimination, but not all, against gay and lesbian people removed from all state laws, whether they are about age of consent, antidiscrimination law or partnership recognition. The states have done much of what they can to bring about equality for gay and lesbian citizens. At every turn this has been fiercely resisted by right-wing church groups, conservative MPs and antigay organisations, but they have failed. With the focus now on Commonwealth laws in Canberra, this moral panic amongst the religious Right has found an icon issue in marriage. Thus, the scene has been set for a cultural showdown. This ideological push by the religious Right merged with the Howard government's keen desire for an election wedge issue, and an opportunity to pander to popular prejudices sees this bill before us today. Regrettably, the ALP has agreed to support it rather than show leadership and defend the humanity of gay and lesbian people.

Labor has tried to sell its conscience by claiming that the gay and lesbian community is more concerned about other pressing issues of discrimination, such as superannuation, taxation, social security and property issues. But this defence fails to recognise that civil marriage is the swiftest and least complicated way to achieve all of those outcomes. Nor does it explain or justify the shadow Attorney-General's endorsement of an antigay rally held here in parliament last week or her panicked backflip in the Senate committee process, which has now been neutered by her inexplicable decision to rush the legislation rather than consider it. The many gay and lesbian people who fought so hard to get up an inquiry into these deeply personal issues that affect their daily lives have been deeply betrayed. There is a great need if we are going to extinguish access to civil marriage for same-sex couples for there to be an alternative scheme for same-sex partnerships. We have seen in the states a variety of mechanisms introduced, whether it is de facto recognition in Western Australia, New South Wales and Victoria or registered partnerships in Tasmania. We have nothing at a Commonwealth level and, as a consequence, every area of Commonwealth law that deals with relationships discriminates against gay and lesbian people, whether it is social security, veterans' affairs, immigration, taxation—you name it, discrimination exists.

I found it galling when the Prime Minister spoke to the rally at parliament last Wednesday and argued that he had no particular animosity towards gay and lesbian people and did not support discrimination. He nominated the workplace and industrial relations as an area where he would not tolerate discrimination. I wish I could have called out with a megaphone to say, `In that case, what are you going to do about it?' There is a raft of existing discrimination under industrial relations law against gay and lesbian people, not the least of which is the denial of bereavement leave to the same-sex partner of someone who has died. I wrote to the Leader of the Opposition, Mr Latham, in January this year following repeated frustrations in this place, where I pleaded with the Labor Party to allow time in the Senate to bring on debate and discussion of the Democrats' Sexuality and Gender Identity Discrimination Bill 2003, a bill which in one form or another has been on the Notice Paper for almost a decade. That bill would introduce national antidiscrimination laws, partnership recognition and antivilification protections. These are things Labor claims to desperately believe in and want, and it dangles them as a carrot before the electorate as we approach the coming election. It cannot and will not commit to those things here in the chamber. Despite writing to Mr Latham after the then shadow Attorney-General, Mr McClelland, announced Labor's three key policy points in this area and urging that those things be debated in the Senate, I did not have the courtesy of a reply from Mr Latham.

If empowered, the Democrats would bring about those three things. It is worth noting that as a nation we are one of very few Western countries without any national antidiscrimination laws on the grounds of sexuality or gender identity and one of very few Western countries with no partnership laws for same-sex couples. Senator Ludwig, in his contribution, argued that Labor would not support the Democrat amendments on these bills because they would be rejected in the lower house. If that is Labor's policy approach then it needs to explain why it was happy to pass the Kyoto protocol bill—a private member's bill for the environment—knowing that it would be quashed in the other place. Why, too, did it support and pass in this chamber an end to mandatory sentencing laws—a bill dealing with Indigenous concerns—knowing it would be quashed in the other place? I submit that Labor is prepared to take a principled stand on Indigenous issues and the environment but not on issues relating to the lesbian and gay community.

We Democrats support civil marriage being an option for same-sex couples. We recognise the humanity of those relationships, most especially for those who are raising children, and we continue to remind people that many lesbian and gay people have children or plan to. I have heard the argument over and over again that marriage is about children and that marriage is the best environment within which to raise children. Great! Let us, at the very least, allow same-sex couples raising children to get married for the benefit of those children.

A booklet was distributed by the traditional marriage forum—or whichever name they were going by. It is a lovely brochure with smiling faces. It contains 21 reasons why marriage is a good thing. While I find most of the alleged research at best questionable, I found nothing in that booklet which argued that same-sex marriage was a bad thing. It argued that those people who were married were happier, lived longer, provided the best environment for children and produced less crime in their communities. That is all very wonderful but the flip side of that is that same-sex relationships—those people who may be raising children—are specifically being discriminated against in our community by those very people who trumpet marriage. At the same time they are saying, `We will impose on you and your family a lesser environment and greater opportunities for ill health and for your children to become law breakers.' That is their argument, not mine. It is completely nonsensical to argue that marriage is a really fantastic and great thing. I have no particular argument with that but I have yet to see the argument as to why same-sex couples in long-term committed relationships should not be allowed into the institution. It is simply segregation.

The other thing we can point to is that every single doomsayer prediction, every criticism of same-sex marriage that is thrown up by the religious Right and other conservatives, can be proved wrong simply by looking to Canada, the US, Denmark and those countries where same-sex marriages have been allowed for a year or more. The sky has not fallen in in those places. Traditional marriage has not been undermined. There has been no negative impact on society. I was delighted to see that the most recent poll in Canada showed that a clear majority of Canadians who were initially opposed to same-sex marriage now support it. That only happened because leadership was shown by their political parties. The political parties argued, in the face of controversy, to support same-sex marriages. Now that those marriages have been seen as being viable, workable, legitimate and acceptable, they have a place. That, for most gay and lesbian people, is the issue—it is about inclusion. (Time expired)