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Thursday, 12 August 2004
Page: 26547

Senator BUCKLAND (4:24 PM) —I seek leave to incorporate the speeches of Senator Hogg, Senator Denman and Senator Wong.

Leave granted.

Senator Hogg's incorporated speech read as follows—

Firstly, I support the bill.

Having said that, there are two issues that I wish to raise in respect of this legislation and they are:

the legislation does not in practice affirm the position it is said to affirm, and

that, in matters such as this, Senators should be entitled to a conscience vote on the issues.

This bill was cynically introduced by the Government to `wedge' the members of the Labor Party causing it internal dislocation and disruption on a socially sensitive issue knowing that there was a diverse range of views within the Labor Party.

Little did the Government expect that Labor would come to the considered and balanced view that it did.

Labor not only chose to respect the view that marriage was between a man and a woman, but also went further and gave undertakings that it would remove all forms of discrimination against same sex couples.

The wedge did not work.

It is a real pity that this bill is being rushed through the Senate before the Senate Legal and Constitutional Legislation Committee could consider the implications of the terms of the bill and suggest any changes that might improve the quality of the legislation.

Whilst there is an undertaking that the Legal and Constitutional Legislation Committee will review the legislation post its passing, it is highly unlikely that any of the findings of that review will see the legislation revisited.

The Government asserts that its objective in inserting a definition of marriage into the Marriage Act is to reinforce its belief that marriage can only be between a man and a woman.

But, it has failed to define at what point in being, is the sex of a man and/or a woman defined, as jurisdictions in Australia and overseas have raised that the psychological belief of sex would be the determinant factor.

In other words, a person undergoing a sex reassignment from one sex to the other could marry a person of his/her original sex which would result in a same sex marriage thus defeating the Government's stated objective.

This bill imposes no new conditions or requirements on marriage.

It does not make any new law as such.

The bill changes nothing that does not already exist.

2. I fully support that marriage is between a man and a woman.

Whilst I acknowledge that there are a diverse range of relationships in our community, I am firmly of the belief that the sole province of marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

My views are an amalgam of basic belief patterns and structures on which my life is built.

But, I know there are people in my own Party and on the other side of politics that have the direct opposite view to mine in this matter.

I respect their view greatly as I believe in instances such as this that they hold those views too for the deepest held personal reasons and should not suffer great personal pain and angst in debates such as this by being constrained by a Party position.

Therefore, in issues such as this, I believe, and have said consistently, that all politicians should have access to a conscience vote such that they are not forced to be at odds with their innermost fundamental and most fervently held beliefs on social issues like this.

I respect the fact that others do have loving and fulsome relationships outside the concept of the traditional marriage.

Marriage between a man and a woman is the fundamental basis of the organisation for our society and its uniqueness should be maintained to the exclusion of the many other diverse forms of relationship that exist today and might emerge into the future.

Senator Denman's incorporated speech read as follows—

Australia in the 21st century ought to be renowned as a tolerant society. It should be respectful of the rights of all of its citizens.

I have to say that I have been extremely disappointed with the lack of tolerance and respect shown by some Australians during the debate about this legislation.

Instead of being a piece of routine legislation designed to codify standard practice, it turned into a campaign by some to vilify others in the community.

Some of the letters and emails I have received in relation to this legislation have been considered and passionate, reflective of genuinely held views. But others have sadly displayed a level of intolerance and even hatred which have no place in the Australia of 2004 and beyond.

I was dismayed by those who used the recent Marriage Forum here in Canberra to denigrate others.

I have pondered the legislation many times. I have wondered whether it is necessary. After all, it simply states the practice which we have followed in this country for many years.

The Prime Minister originally announced that this bill would be a part of a series of measures pertaining to relationships.

Quite appropriately, the proposed measure in relation to restricting inter country adoptions has been shelved. Adoptions are the responsibility of the states and territories and those are the appropriate jurisdictions in which those matters should be considered.

Sadly, whilst this Bill, has once again, somewhat hastily, been brought before the Senate, there is no proposal from the Government to address the other issues foreshadowed by the Prime Minister.

I make no apology for listening to and considering the matters which all of my constituents raise with me. I have always been and advocate for tolerance and against discrimination.

For too long, some Australians have not enjoyed the same rights and opportunities as others.

But the time should have been long gone when addressing these matters ought to have become a way of driving a further wedge between Australians.

This legislation has two purposes. First of all it formally defines marriage in the manner in which it has been traditionally accepted in this country.

It seems that this remains the view of the majority of Australians. I am not convinced that there is anything inherently unfair or unjust in the enactment of the provision.

But there should not be permitted to be made, thereby, any assumptions which would purport to reduce the rights and privileges of Australians who choose to live in other forms of relationship.

Sadly I know that some will so interpret the passage of this legislation.

It is thus imperative that appropriate other legislation be enacted to protect those rights and privileges. Such legislation, to me, is just as important, and I am pleased that we on this side of the House, along with a majority on the cross benches agree.

I hope that in a very short time that the personal views that many of those opposite will prevail over the seeming intransigence of the prime Minister and the Government in dealing with these important issues of equality.

The same ladder of opportunity should be available for all Australians. Some rungs should not be removed because of the status of the relationship in which Australians choose to live.

I will return to this issue later.

The second aspect of this legislation would ensure that same sex marriages, permitted under laws of other countries, would not be recognised as marriage in this country.

Again, I accept that this is the considered view of the majority of my constituents in Tasmania and of the Australian people. This may change in the future, as has obviously been the case in other jurisdictions, but for the time being, at least, it is not inappropriate for the law of this country to so reflect community wishes.

I note that this is not, however, the view of all Australians, particularly many young adults, who have presented their alternate position to me.

But I am equally certain that the majority of Australians also believe that people who choose to live in relationships other than marriage as defined by this legislation, should not thereby be denied basic rights and privileges.

Every state and territory in Australia, with the exception, as I understand it, of South Australia has responded to this community expectation.

Legislation has been enacted in each of the seven jurisdictions which provides appropriate equality before the law with respect to matters such as intestacy, property matters, medical decision making, statutory compensation acts and state superannuation.

The Commonwealth must follow suit. Just as both sides of the chamber have agreed that this bill ought to be enacted, so too should it be agreed that legislation protecting the rights of all Australians, regardless of their relationship status, be introduced and passed.

In fact I believe that the latter is even more necessary.

Whilst it is possible to argue that the provisions of this Bill, are already the law in this country, it is not the case with the other reforms. They are essential to ensure we provide equality for all Australians.

And I should emphasise that whilst it is often gay, lesbian, bisexual and transgender Australians that are seen to be the most outspoken in their rightful pursuit of these rights, there are many other Australians in relationships, which do not enjoy the rights of others.

Take for example, never married siblings living together, other companion and caring relationships and like situations.

I accept that it is the community's expectation that marriage, as set out in this Bill, be a heterosexual institution. I therefore support the legislation.

I have to say, however, that I would be a great deal more comfortable in doing so, if I knew that there was other legislation in place or, at least, forthcoming which would deliver appropriate rights and privileges to other Australians, who choose forms of relationship other than marriage.

In my view there may possibly be no need for the current bill, if this other legislation were already in place.

I state my commitment, in the time that I have left in this place, to seek appropriate equal rights for all forms of relationships accepted within this country.

I should make it clear that I am not advocating open slather. I am not in favour of the legitimisation of bigamy, child marriages or the like.

But it is a fact that the other relationships, to which I have referred, are accepted in Australian society, as evidenced by the passage of the legislation in the states and territories.

I am proud to be a senator, representing the tolerant new Tasmania of the 21st century.

Tasmania now has what are regarded as some of the most progressive relationship laws in the World. And as it happens contrary to the expectations of some, hell and damnation has not been wrought upon our beautiful island.

Tasmania has taken the substantial step of introducing a partnership registration scheme.

The Tasmanian Partnership Registration Scheme allows for everyone in a significant personal relationship to so register that relationship with the Registry of Births, Deaths and Marriages and to receive a certificate of registration.

The legislation is wide ranging. There are two categories of registration. One which covers both same sex and what we generally know as de facto couples and a second for non-conjugal couples.

Couples in each category must comply with the relevant criteria in order to be registered. Entry into and termination of registered relationships is regulated in the same way as marriage.

This is a serious and valuable advance in legislation. Whilst registration extends no further rights, other than in relation to parenting, it serves the key purpose of providing couples in legitimate relationships with a recognised and simple way of proving the relationship if challenged.

There may be other methods of achieving the rights which ought to be afforded to Australians in relationships other than marriage but it has succeeded in providing equality, and also, I believe, extending tolerance within the Tasmanian community. It has provided dignity.

I believe that rather than create division in our society, as some would have had it, measures such as this, have brought Tasmanians together. It had significant support across party lines and was supported by the traditionally conservative Tasmanian Upper House, which has a majority of independent members.

Recently, one constituent wrote to me in these words, `I have seen the positive change that the legislation has brought about in attitudes in the community in general and in the self esteem of many Tasmanians living in same sex couples.'

I have no doubt, from my own observations that he is correct.

Similar registries exist in many Western European countries and in some US states. Great Britain and New Zealand are both expected to pass similar enacting legislation this year.

Each of these jurisdictions have already or are in the process of acknowledging the importance of legislation which extends standard rights to all citizens, regardless of the relationship they are in.

Why should an unmarried sister on the death of the sibling with whom she lived, or a gay man or woman in a similar situation have to go through the heartache of having to prove the relationship or survive the challenges of other relatives, in order to receive the benefits their partner would have wanted them to have.

In drawing my remarks to a close, I affirm my support for the passage of the bill.

In doing so, however, I also urge all senators to consider the real need for other legislation necessary to ensure appropriate recognition of all personal relationships and the rights that flows therefrom.

Senator Wong's incorporated speech read as follows—

It is necessary in politics to place decisions and actions in their context. The decision of the Howard Government to introduce this Bill to amend the Marriage Act has not been taken in a vacuum. This decision has been taken in the context of eight years of decisions made in the interest of political gain, at the expense of the cohesion of the Australian community.

It is in the context of the Howard Government's response to the High Court's Wik decision, where the Howard Government moved to extinguish native title under the false claim that suburban backyards were at risk of being taken by indigenous Australians.

It is in the context of the Prime Minister choosing to quietly endorse the sentiments of Pauline Hanson in an attempt to manipulate her support base.

It is also in the context of the Howard Government's false claim that asylum seekers threw their children overboard in order to find safe haven on our shores.

That claim came as we approached the last election, and was a cynical stunt designed to denigrate people—to make some people seem less decent and therefore less worthy—in order to gain votes. It sought to create a community of `us' against `them'.

And the Prime Minister's decision to amend the Marriage Act now is in the context of an election that is likely to be held within weeks. The Prime Minister would happily make lesbian and gay Australians the asylum seekers of this election. He would dearly love this to be the new Pacific Solution.

Above all else, this bill comes in the context of the new political correctness of the Howard Government's Australia. This Prime Minister is always keen to accuse those who work for a fairer Australia of being motivated by some apparently twisted desire to be politically correct. Well, what is politically correct is not fixed, but instead is what is popular, and this Government has made the populist and subtle denigration of minorities their meal-ticket. Over the past few years, any vestiges of fairness as correctness have been eroded and replaced with prejudice as correctness. A nod and a wink to prejudice is seen as a legitimate political tactic.

If people oppose the Howard Government's agenda in relation to this Bill, I hope they recognise it belongs in the context of the Howard Government's broader agenda to undermine the achievement of fairness—of social justice—in Australia. If people are offended by the Prime Minister's manipulation of prejudices for political advantage in this instance, they should consider that this is not the first instance of such manipulation. And they should recognise that while oppositions and minor parties may tinker with the details of legislation, governments bring forward laws, and the tone of the national debate is set by the government of the day. Prime Ministers in Australia, like presidents in the United States, have a unique platform from which to frame national identity.

When the Prime Minister said recently that Australia has finally gotten over the debate about our national identity, what he really meant was that he had gotten over it, and he believes his view has prevailed.

In terms of the specific effects of this legislation, it has minimal practical effect. It reaffirms the existing common law and statutory definition of marriage. It does not change the legal definition, other than to add the phrase, `entered into for life'. Of course marriage is intended to be for life but can never be guaranteed for life—and marriages certainly won't be more likely to survive because this phrase is included.

The Government has attached much weight to this legislation, to this bill that simply confirms the existing law. Perhaps they believe it serves a symbolic purpose, that it will somehow demonstrate they really care about Australia's families.

Perhaps they hope that it will distract attention from some of the everyday hardships and difficulties Australian families face on their watch. Rising health costs, being unable to find a bulk-billing doctor for your children or an aged care bed for your parent, the increasing costs of education—these are some of the daily problems families face.

The Government's attempt to use this legislation as a distraction from these issues is self-evident. It is further exposed by their pathetic attempts to misrepresent Labor's position on the bill, and the dishonest and prejudiced scare campaign attempted by those opposite.

From the government who ignored the vast majority of Australians in their recent spree of tax-cuts for the wealthy, the government that strips families of their tax return in their heavy-handed management of their flawed family benefit system, the government that failed to fund the pneumococcal vaccine, and continues not to fund appropriate polio and chicken pox vaccines for Australia's children—from this government we now hear long loud declarations of their support for families.

And they offer up a bill that simply restates the current legal definition of marriage as evidence of this.

The restatement of the definition calls to mind another famous statement by the Prime Minister, that `we will decide who comes into this country, and the circumstances in which they come.' That statement was made at the Liberal Party campaign launch before the last election. It was a statement of fact, not a new policy initiative. It simply emphasised a long standing predicament.

The Prime Minister made that statement with a view to capturing nationalist sentiment in the wake of September 11 and the arrival of asylum seekers by boat, and wanted to subtly link the two. Now he restates the definition of marriage, not because there has been any concerted move to change the definition—there hasn't, not by lobby groups and not by parliamentarians—but because he wants to beat his chest about how conservative he is.

Perhaps the next Liberal slogan will be `We will decide who gets married in this country, and the circumstances in which they marry.'

One thing the Government is not always able to decide is the circumstances in which children are raised, and unless they forced gays and lesbians to be sterilised, there is little they can do to stop loving same sex couples bringing up their own children.

Nevertheless, the Prime Minister has also tried to make it impossible for same-sex couples to legally adopt children from overseas.

This is what we have come to know under this government as the dog whistle: an appeal to people by implication rather than explicit meaning. With the children overboard affair, the Prime Minister and his government implied that asylum seekers were prepared to terrorise Australians and even their own children in order to achieve asylum. Now, the Prime Minister is tapping into a deep-seated prejudice held by some in our community that lesbians and gays are unsuitable parents. He wants Australians to believe that sexuality is the sole criteria for good parenting.

Many in our community have not witnessed the reality of lesbian and gay parenting and so are closed to the possibility that it might not be as dangerous as they might assume. That hesitation is a typically human one. It is hard to understand something which is not in the realm of your experience and not what you're used to—that goes for most of us.

In fact, lesbian or gay parents want and have children for many of the same reasons that other parents do. And like all parents they do the best they can for the children they have.

Above all, it is hard to argue that a child's best interests can be determined by a single piece of legislation. That can only be determined on a case by case basis, and I struggle to understand how a destitute orphan overseas could be worse off with caring parents in Australia.

Sadly, however, that is what our Prime Minister is saying. He says it is better for a child to live in poverty, in war, without shelter or hope, to be sold into slavery or prostitution, than to be cared for by a same-sex couple, so sickened is he by the prospect of them as parents. I find this deeply disturbing.

My colleague, the Member for Sydney, in speaking on the original Bill, gave some heart warming, real-life accounts of gay and lesbian parenting and I would urge honourable senators to read the Hansard of her speech. Indeed, the Member for Sydney, the Member for Grayndler and a number of my colleagues have been very strong advocates for lesbian and gay Australians. And so have rank and file colleagues in Rainbow Labor, which has since its inception only two years ago, brought the Party a long way forward in recognising that fairness for gay and lesbian Australians is part of our commitment to social justice more broadly.

It is people like these who—out of personal experience or a desire for an Australia that is fairer for their friends and family members—have brought a renewed sense of fairness to Labor's agenda. A recognition that what is important is what lies between two people—the content of their relationship—not their gender.

We will not say one person's love is worth less than another person's love, or that one family is more of a family than any other. Nobody has a monopoly on commitment and love, nobody has the right to judge the worth of another person's relationships.

These are intensely personal issues and the role for government here is questionable; certainly, it is questionable that a government that apparently prides itself on supporting the rights of the individual seeks to curb those rights in the interest of electoral politics.

There are big differences between the Howard Government's approach on this and our approach, and this is in keeping with the historical fact that it is Labor governments that have consistently delivered same-sex law reforms in this country. We do not want lesbian and gay Australians to become a political football in the coming election.

We reject the Government's dog whistle on adoption, and we have indicated that we would oppose the Government's amendments in its original bill on this point. The Attorney-General has blatantly misled the Australian people by saying Labor's amendment will stop foreign countries accepting Australian couples as adopting parents.

We also recognise that the debate around gay marriage in Australia is actually a fairly new one. Unlike the United States and other countries, the debate in Australia has not focused on marriage but on equality more broadly. In large part that reflects Australia's quite comprehensive accommodation of de facto couples in law. In fact, all Australian states, other than South Australia which has signalled amendments to do so, now recognise same-sex relationships in their de facto laws.

Labor will conduct a full audit of Commonwealth legislation, to identify and remove all discriminatory provisions across areas like superannuation, tax, veterans' affairs, social security and immigration. No other party in Australia will do this. We will also legislate against vilification and harassment on the basis of sexuality.

Labor has also committed to ensuring that same sex relationships have equivalent status to de facto heterosexual couples. Again, no other party in the federal parliament can and will do this. The Prime Minister promised superannuation rights for same-sex couples. However, the Bill has not arrived. It is a Labor MP, the Member for Grayndler, who has been pushing for same-sex super since 1998. The Howard Government refuses still, even this month, to debate that Labor Bill.

Perhaps an analogy that can be entertained on these issues is an American experience. We know that the Prime Minister is inspired by current US policy, to the extent that he even mimics his American mentor's electoral strategy to ban gay marriage. However, there is a dark chapter in American history that also warrants consideration.

It was once illegal in several states of America for people of different races to marry. Black and white Americans who wanted to marry could not in some states. This was a popular policy across most of America. Nevertheless, in 1967, the US Supreme Court struck those laws down, arguing that the right to marry was one of the most basic human rights. Changing the law didn't necessarily change public attitudes, for the next year 72% of Americans still opposed interracial marriage.

We have now consigned those attitudes to the graveyard of history where they belong. We condemn them as dated, offensive and bigoted, and we certainly agree that those attitudes were framed by prejudice.

I hope it is only a matter of time before this Prime Minister is similarly abandoned by the Australian people. I hope instead we will look to a future that is about hope and opportunity, and not about old fears. A future about what we can be as individuals and as a nation, not about what we cannot be.