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Standing Committee on Social Policy and Legal Affairs

DODD, Mrs Catherine, New South Wales President, Australian Family Association

KELLEHER, Mrs Terri, Victorian President, Australian Family Association

MITCHELL, Mr Graeme Alan, State Officer, NSW and ACT, FamilyVoice Australia

PHILLIPS, Dr David Michael, National President, FamilyVoice Australia

SIMON, Mr Daniel James, Research Officer, Australian Christian Lobby

WALLACE, Mr Jim, AM, Managing Director, Australian Christian Lobby

CHAIR: I now recommence the public hearing of the Standing Committee on Social Policy and Legal Affairs Committee, which is one of a number of committees in the House of Representatives. Committees run parliamentary inquiries into various topics and this committee is currently holding an inquiry into two bills: the Marriage Equality Amendment Bill 2012, introduced by Mr Bandt; and the Marriage Amendment Bill 2012, introduced by Mr S Jones. There are wording differences between the two bills, which technically distinguish them, but the objects of each bill are to legalise same-sex marriage in Australia, recognise same-sex marriages performed in foreign countries and ensure that the status quo remains that no obligation is placed on ministers of religion to perform any marriage, including same-sex marriages.

I would to make clear what it means when we say that we are inquiring into the bills. We are examining the bills and the changes that they propose to make to the Marriage Act 1961. We are particularly interested in the legal and technical aspects of the bills. We will write a report for parliament that summarises the main issues and the contributions made by members of the public and relevant organisations. We, as a committee, are not voting on the bills. The House of Representatives will debate the bills in the chamber later this year and then will vote on them. While different members of the committee are on the record stating their views regarding same-sex marriage, we are here today as a committee and the report that comes out of this inquiry will reflect the views and materials presented to the committee.

Whilst this is a public hearing, it is not a public meeting. Only those who the committee has invited as witnesses will be allowed to speak and only the committee will be asking the questions. Anyone who interrupts proceedings will be asked to leave the premises. People can contribute by way of the inquiry website at Flyers are available near the door, which you are free to take, so that the committee secretariat does not have to take them home.

I welcome the Australian Christian Lobby, FamilyVoice Australia and the Australian Family Association. Please note that these meetings are formal proceedings of parliament. Everything said should be factual and honest, and it can be considered a serious matter to attempt to mislead the committee. Today's hearing is about the two bills that propose amendments to the Marriage Act. We will keep our discussion limited to those two bills. We understand that your submissions have raised some important issues such as adoption of children by same-sex couples, but these are state and not federal matters and they are not the subject of today's hearing. We wish to hear your views on marriage and on the changes proposed by the bills. Would any of you like to make a brief opening statement before we begin questioning? I stress brief.

Mr Wallace : Mr Chairman and members, I would like to say that we very much appreciate being here. We hope that what the inquiry will result in is to cut through a lot of propaganda that has surrounded this particular issue—a lot of what we believe are mistruths have been put forward in this argument—and to actually look at some of the truth in the situation. From our point of view we expect that an institution, which has been historically and culturally founded and honoured across cultures, across generations and across faiths, should be maintained unless it can be proven there is some absolute reason why people are being discriminated against. I ask the committee to also consider that we are talking not only about the rights of homosexual people in this case but also about the rights of faith communities. I believe the rights of those faith communities are being challenged by a lack of concern for their deep concern for marriage in its current form and the reasons that they hold those beliefs. Secondly, any move to legislate for marriage will create vulnerabilities for religious freedom and freedom of religious conscience—particularly in light of the recent decision of the European Court of Human Rights on a case that came before it. I will speak about that later if you care to ask me. Thank you.

CHAIR: Are there any other introductory statements?

Dr Phillips : Yes. I represent FamilyVoice Australia, which is a Christian voice for family, faith and freedom. We are a Christian organisation, but the arguments we advance we seek to make on an evidence basis not on a religious basis. As a voice we are independent of all political parties. We have no connection with any political party. We address issues; we do not endorse parties. The issues we cover include marriage and family issues, Christian faith and heritage, and democratic freedom issues. Today we are addressing the marriage issue.

One of our core arguments is that marriage is a human reality, a biological reality. When a man and a woman unite sexually, it is often the case that a child will be conceived. When that child is born it is extremely vulnerable compared with other animals. It takes something like 20 years to reach maturity, so a child needs the commitment of its parents for a lengthy period of time. Marriage is merely a recognition of that fundamental human reality. You cannot change the reality by changing the law.

Secondly, some people have asked the question: why should governments get involved in defining marriage anyway? Why not withdraw from the field and allow people to do whatever they like without any government involvement or interference? The answer we would give is: a responsible government seeks to secure the stability, security and prosperity of the future of the nation, and that needs a future population. Babies need to be born to provide a future population, and those future people need to be good responsible citizens, not drug addicts or criminals or otherwise dysfunctional members of the community.

There is a bucketload of evidence that marriage is the best environment for raising the next generation of responsible citizens. So governments have a legitimate reason for defining and controlling the circumstances of marriage—in fact, they should be privileging, commending and doing everything possible to enhance marriage as between a man and a woman.

Thirdly, the downside is that, if that is not done, there are adverse consequences: children are damaged; society is damaged; you end up with a situation where a larger proportion of the population are dependent on welfare. We have seen recently the situation in Greece. There are two major problems in Greece. It has a birth rate which is way below replacement level; it does not have young people to replace the old people. Secondly, it has an extraordinarily high percentage of the population on welfare benefits. Those two factors combine to mean that Greece is a basket case. Governments have a responsibility to ensure Australia does not become a basket case as Greece has become. For that reason, governments need to commend, privilege and protect the institution of marriage as we know it.

CHAIR: I think there might be some income tax issues there as well in Greece, but moving on to the Australian Family Association?

Mrs Kelleher : Thank you for the opportunity to come here today. You have our submission, so you can look at that at length. Basically, I will recap. There are two major parts to that submission. The first is on the institution of marriage, which is inherently related to the male-female union that is a biological and psychological reality. Indeed, the elements of marriage—that is, exclusivity and permanence—are understandable only in the context of the inherently fertile heterosexual union that is marriage, which is oriented to the bearing and raising of children—and children need those elements. Any intimate personal relationship has enormous importance emotionally and psychologically in the eyes of the individuals concerned. But marriage is simply a reality that cannot encompass a same-sex couple because it is not that which is marriage. Marriage is the union of a man and a woman naturally oriented towards the bearing and rearing of children, even if in individual cases there is no desire for children or children do not eventuate.

The state's interest in marriage is not to do with any couple's desire to have their love recognised or sanctioned by the state; it has to do with recognising the significant public interest in fostering that lifelong exclusive fidelity between the man and the woman in order to rear the children in optimum conditions. We say that it is a huge social experiment to allow children to be conceived by donal conception for same-sex couples, especially in view of what donal consent children who were conceived for heterosexual couples are now saying to each other. The Australian website is TangledWebs and the American website is AnonymousUs. On those websites these young adults, who are now at in their early to mid 20s—

CHAIR: With respect, that might be drifting away from the legislation we have in front of us.

Mrs Kelleher : I am sorry. Part of our submission is to do with the legislation which is going to redefine marriage, which would allow same-sex couples to marry. The second major part of our submission is on the consequences for education and for freedom of religion of legislating to allow same-sex attracted couples to marry. In relation to education in particular, as the Australian Family Association is an organisation that is concerned with any public policy, or any laws or legislation, that is going to affect the family, we are particularly concerned about the effect on children. When same-sex marriage has been legislated overseas, it is introduced into the schools on the basis that it is legal and therefore it must be taught. We have the case of David Parker in Lexington, who was actually arrested for asking whether he could withdraw his six-year-old son from classes in which they introduced gender issues and homosexuality. He was told he was interfering with the business of the school and was arrested and kept overnight. He and his wife were not allowed to be told when these classes were to be held nor were they allowed to take their son out of the classes, so the only option was to take their son out of the school.

If you would just bear with me for a moment, the other thing that is happening in Australia is the antidiscrimination legislation. The Attorney-General has an inquiry at present into the federal antidiscrimination legislation. I know that Mr Bandt's bill is making an exemption for religious organisations, but the concern there is—

CHAIR: And Mr Jones as well.

Mrs Kelleher : And Mr Jones, sorry.

CHAIR: Both bits of legislation.

Mrs Kelleher : Both?

CHAIR: Yes—you mean the section 47 exemption?

Mrs Kelleher : That is right, yes—that there would be an exemption. Our concern there, certainly coming from Victoria, is that what the law gives the law can take away, and that can be changed. It certainly was in Victoria when the former Brumby government amended the Equal Opportunity Act to remove or restrict the religious exemptions there. We were just fortunate that a new government was elected and in fact repealed those amendments before they became operative. So we are not really convinced that there will be protection of religious freedom. The other point is that submissions by gay and lesbian groups to this inquiry have said, 'Yes, there will be an exemption, so why would you be concerned?', but their submissions overwhelmingly—if not 100 per cent—to the Attorney-General's inquiry into the consolidation of the antidiscrimination legislation say that there should be no such exemptions. They are the two major arms of our concerns.

CHAIR: Thank you. I am loath to be devil's advocate in front of the Australian Christian Lobby and the like, but I am going to be. Fifty per cent of marriages fail—end up in divorce. Is there something we are doing wrong with marriages at the moment? I think it was touched on by Dr Phillips in his opening remarks. Perhaps we need to privilege marriage even further? I am being devil's advocate here. You touched on the fact that drug users are able to get married. I think there was a suggestion that marriage should only be for those who are able to have children. Should we exclude people who are heterosexual and unable to have children? You could argue there is something going wrong when over half of marriages end in failure. Would anyone like to respond?

Mr Wallace : People are killed on the roads every day; people break the laws on the roads every day; but we retain the laws. I think in this case—and I know you are not suggesting otherwise—we have identified in marriage something which is a public good. What we have failed to do over the years is protect, encourage and privilege marriage, as Dr Phillips said. So I agree with you; I think marriage is in a parlous state.

People often say that the figures for church marriages are just as bad, but I think they are quoting from the 64 per cent of the population who is Christian; but, if you go to the 19 per cent who go to church every week, I think you would find it is much better, because people try to honour marriage and try to privilege it within their community.

I think, if we have the problem, as you rightly suggest, it is because we are not privileging marriage. By going down this route we are just exacerbating that problem. What we need to do instead is realise that marriage embodies the concepts of motherhood and fatherhood that are so important to society and to its stability. So we should—for those very important concepts, their protection and their privileging—be privileging marriage.

Dr Phillips : Australia has been systematically undermining marriage for the last 40 years. It commenced in 1974-75 with the debate and introduction of the Family Law Act which was designed to—

CHAIR: No-fault divorce?

Dr Phillips : Yes, no-fault divorce. This means that a person can unilaterally leave a marriage with no penalty. It is facilitating divorce. There have been a raft of amendments over the years which have made it easier and easier. So there is now no protection. If you enter into a commercial contract to build a house or anything else and you break that contract, then there is a penalty imposed on the person who breaks the contract. Under the Matrimonial Causes Act, marriage was on the basis that the person who broke the marriage contract did so knowing that they would suffer a penalty, and that was an impediment which encouraged people—to use the phrase that was used at the time—to 'stay together for the sake of the kids'. Now—and I know a number of cases like this—people can just walk out of a marriage for no significant or important reason; they are just tired of it and want to try something different. It has trivialised marriage. That was the beginning of it.

Then we had the recognition of de facto relationships. It used to be the case that if you wanted the protections of marriage you got married, and the law protected those relationships. If you did not want those protections, if you wanted a casual relationship, you shacked up in a de facto arrangement. Now, with the recognition of de facto arrangements for a wide variety of legislation, making them equivalent to marriage, it has conveyed the message: 'Why bother with marriage? We can have all the same laws apply to us as de factos. What is the point of marriage?'

So it has undermined the point of marriage. Marriage is no longer privileged. That was done first at state level and then more recently at Commonwealth level. So now there is almost no difference between being married and not being married in terms of the rights, privileges and responsibilities of the couples involved. Now these bills want to take it even further, deconstructing the nature of marriage by trying to pretend that legislation can change the underlying reality of what marriage really is.

Some people have said that the definition of marriage was only introduced in 2004. That definition was just borrowed from another part of the act in 1961, which was the way in which a marriage celebrant was required to explain marriage. And that was borrowed from previous British law, in 1857which was inherited by Australia. There was English law and there was the Lord Penzance ruling in 1866—same definition of marriage. That of course was borrowed from the Church of England canon law which went before it, and the Church of England canon law went back to the Roman Catholic canon law of the 14th and 15th century, and of that course traces its origins way back to the teaching of Christ. So the suggestion that some people make that marriage is only a recent invention is just not true. It has always meant that, and we have been systematically undermining it. So it is no surprise that marriage is no longer held as important as it was in time gone by.

CHAIR: I have got a chart here of the number of marriages registered and the crude marriage rate. It certainly seems that the peak for marriages in Australia was in 1942, just after Japan bombed perhaps or with people going off to war—

Mr Wallace : Annual marriage rates?

CHAIR: Yes. Then there has been a steady decline, give or take a few peaks, to the current day, whilst the actual number of marriages has gone up as population has increased. Just exploring that idea I put in my earlier question, why aren't more people making this commitment? You said that the ability to have common-law arrangements or de facto relationships has made people less prepared to make that marriage commitment. Is that the suggestion?

Mr Wallace : I think Dr Phillip's point is the relevant one here—that is, governments have not encouraged it, and, in fact, law has discouraged it. What is really important in this is not just the man and woman part; it is 'to the exclusion of all others for the term of your natural life' because that is the part that provides the stability for children. If we are to take the figures, which of course are correct, and we look for instance at Patrick Parkinson's recent study, then we see the number of children in out-of-home care in Australia has doubled in the last 10 years. If we keep going at that rate we will not be able to afford it. Remember, out-of-home care by definition means that these children cannot be returned to their families; it is too dangerous. In the great majority of those cases—I do not have the figures with me—I am sure you will find that they are non-biological parents. In other words, it is a single mother or a mother who has been deserted and then ends up with—

CHAIR: The emphasis there was on the plural—the parents?

Mr Wallace : Yes, non-biological—sorry, where it is two parents, you very seldom have the biological parents there, and many times single parents. You need to look at that. It is from my memory of the figures and whose research it was.

CHAIR: I would have thought most children that were taken into care—I am not an expert in this area—would come from heterosexual families—

Mr Wallace : No, they may have originally been in a heterosexual family, but then it has ended up, through either a broken marriage or through a single parent. What I am saying to you is that, yes, there are consequences of the fact that we have not upheld marriage and that we have not promoted and privileged it. If I look at that figure as one of course of many indicators, I would say that we as a society will not be able to sustain that, just from a cost point of view. What worries us is the cost to the children of what we have done to motherhood and fatherhood as concepts by not privileging marriage, by not encouraging people to come together and stay together.

CHAIR: That would be the no-fault divorce part of it?

Mr Wallace : It would be all these things that have been mentioned by Dr Phillips.

CHAIR: At the moment, one-third of marriages occur under ministers of religion; two-thirds do not. Has there ever been a push for ministers of religion to abolish no-fault divorce, basically, so that if you made the choice to get married in a religious establishment you then had the pre-Family Law Act requirements there?

Dr Phillips : That is a parliamentary answer; it is not in the hands of the church.

CHAIR: No, but the parliament represents its people. I was elected by the people of Moreton; I represent the views of the people of Moreton. Has there ever been a push by Australian Christian Lobby or FamilyVoice Australia or Australian Family Association to bring it back?

Dr Phillips : We certainly have. Every time there has been an inquiry into the Family Law Act, and over the years there have been a number of such inquiries, we have called for a review of the no-fault principle and we have given evidence in support of the re-examination and possibly amendment or removal of the no-fault provision. I have sat before committees on a number of occasions arguing that case, but no parliamentary committee has included that in the recommendations of their reports. We have tried but the MPs will not listen to us.

Mr Wallace : In looking at those sorts of figures, you have to remember that over the same period we are talking about—1942 to now—we obviously have smaller church congregations. Nonetheless, there is still 19 per cent of the population who go to church every week, so there will by definition of course be a lower number of church weddings. What I will also say in answer to your question is that many churches place particular requirements on the weddings they conduct—for instance, my own pastor for many years would not conduct a church ceremony for someone who applied to be wed by him acting as a celebrant unless they were committed Christians. He would say, 'Look, I will do it in a park—wherever you like—but I am not going to, from my faith point of view, desecrate the church by conducting this in the church.' They would decide either to go somewhere else where they had a church or to have him conduct it in a park. So there are attempts by the Church in its own realm to try to re-establish the original purpose of marriage and people's commitment to it.

CHAIR: Sorry, you said 19 per cent attend a religious establishment every weekend?

Mr Wallace : No, once a month.

CHAIR: We do not have the latest ABS data, which will specifically answer this in terms of attendance—I think the previous ABS data had faith but not attendance.

Mr Wallace : To my knowledge ABS data does not have attendance.

Dr Phillips : I don't think it does. There are other sources such as the National Church Life Survey, which is a Christian organisation.

CHAIR: That is what I have in front of me. Certainly, it is trending down

Dr Phillips : I have one other comment that is relevant is that we have been talking about. After the Soviet Union was formed, back in 1917 or so, one of the things they did was to make divorce very easy. The consequence of that in the early twenties and thirties was that there were a huge number of street kids, because people got easy divorces, neither party wanted the kids and so the kids were left on the streets. There was a huge problem. The Communist Party then reversed its decision and tightened up its divorce laws a little bit. We argued in 1974 that that was what would happen to Australia, and that is what has happened. The Salvation Army, who do a lot of work with people in difficult circumstances, said to us that before the Family Law Act was introduced most of their clients, the people they helped on the streets—who were living on the streets—were old, alcoholic men, and they gave them food and shelter. After the Family Law Act came in they said their clientele changed. Most of the people they were dealing with were children who were not wanted in their home situation or who were fearful. As Mr Wallace said, if a child was born to a couple and then one partner leaves and another man or woman comes into the context, the party that is not related to the child often does not get along well with the child or is brutal towards the child and the child ends up running away and living on the streets as a preferable alternative.

CHAIR: Dr Phillips, you might find that there has been other evidence that about 80 per cent of the people on the streets also have mental health issues, which might be another thing to consider.

Mr BANDT: I would like to follow up on a couple of points that were made in some of your written submissions. The Australian Christian Lobby in its submission talks with concern about what you perceive to be a move to normalise homosexuality. You refer in negative terms to the event, for example, of an ACT education minister opening and anti-homophobia art display at a Canberra school in which one student's poster read: 'Love is not dependent on gender. What's your agenda?' The Family Voice submission says that this is all a propaganda tool to further the agenda of the homosexual lobby and in fact suggests in its submission that it is wrong to suggest that same-sex attracted people are permanently so, that they can change their orientation, and presumably that is what they should do. It seems to me that the fundamental issue that you are raising is not necessarily about marriage as such; it is that you do not believe that homosexual people in relationships are in accordance with Christian teachings.

Mr Wallace : First of all, I do not believe that, and they are not. My argument is based on the fact that the change to marriage is not the best thing for society of itself because of the damage it will do to marriage and, as I have mentioned, what I would see it would do to the concepts of motherhood and fatherhood. I do not believe that, just because we have a very aggressive and active lobby representing two per cent of the population and propelling this particular issue to the levels that we now have—three bills before the parliament and two inquiries—this lifestyle is normal. If you look at our submission you will see that we have, in fact, been very cautious, because we have no desire at all to hurt homosexual people. We have been very considered in what we have said there, but it is not normal. It is a lifestyle choice of two per cent of the population based on a sexual act which is not normative. This is two per cent of the population who have decided that this is a normative act and for 98 per cent this is not normative.

Children at school, at the point at which they are often wrestling with their sexuality—not because they are likely to become homosexual but because they are wrestling with their sexuality because they are going through a period we all go through in the teenage years where you are unsure of yourself—should not be presented with homosexuality as a normative activity. I think that is quite wrong for a number of reasons. First of all, parents should have the first prerogative on telling children about this. We have course material from Victoria which is for years 9 to 10 or nine to 12—there is certainly study in year 9—which tells children that 10 per cent of the population are like this. Ten per cent are not like this. I do not think that children should have this lifestyle misrepresented to them. They should not be encouraged in it as normative behaviour when it is not. It is not normative in a natural sense and it is not normative in the sense of the number of people engaged in it within the population. I think that is a quite legitimate observation.

CHAIR: With that logic, then, you would not be able to talk to state schools about attending church, because you are only 19 per cent of the population. Would you say, 'Sorry, we're not allowed to talk about going to church because the vast majority of Australians do not go to church.'

Mr Wallace : Actually, you are not allowed to. Even chaplains—

CHAIR: Speaking only for Queensland, every state school has a session where people will be able to talk about faith.

Mr Wallace : But they are not allowed to proselytise. What we have here—

CHAIR: You can talk about going to church.

Mr Wallace : But they are not allowed to proselytise. In other words, they are not allowed to say to children, 'You should go to church; you should become a Christian.' They are not allowed to do that, yet in Victoria we have this unnatural, non-normative behaviour and in the ACT, through the actions that we mentioned, it is presented in a way that says, 'This is normal—what's your agenda?'

Mrs Dodd : I understand your point, Chair. However, are you talking about scripture classes in public schools?

CHAIR: I am not sure what it is called. It has been a while since I taught in state schools, but it is normally a session in state schools—

Mrs Dodd : Religious instruction is taught at primary level.

CHAIR: No, I taught at high school.

Mrs Dodd : At secondary level there is nothing; there is just the chaplaincy program. They do not talk about religion at all.

CHAIR: Religious education. There is a period in every state school in Queensland where Catholics or Anglicans or Callithumpians would come in and talk about the faith. There has even been a test case in the High Court—

Dr Phillips : That is a different matter. You need to distinguish between general education and special education. General education is not allowed to push a particular faith. Special education is an opportunity given to churches for those parents who want their children taught in that manner. But that is—

CHAIR: The point I was making is: if we going to do it on an empirical basis, on 50 per cent plus one, you would not be able to talk about religion. I think I interrupted Mr Bandt's questioning.

Mr BANDT: Following up on that, the Australian Christian Lobby does not have churches as its members, does it?

Mr Wallace : We do have quite a lot of individual churches who register as members, yes.

Mr BANDT: What percentage of the population do you say you are speaking on behalf of?

Mr Wallace : I would not claim to talk on behalf of any more than my membership, but our supporter base, I might say, is almost exactly the same size as GetUp's, in that we have about 15,000 supporters. I understand from their reports that that is about what GetUp has. They claim 600,000, but that is everybody who has ever registered on their website. We managed to get over 100,000 people in a webcast. I do not say I represent those people; I represent my supporters, about 15,000, but they go across the evangelical, Catholic, orthodox and Pentecostal religions. It is representative of the major Christian religions in Australia.

Dr Phillips : On your question of whether homosexuals are stuck in that forever, there is evidence which I summarise in our submission. I will just cite three major factors. One is that among people working in the field of genetics, inheritability and so on there is very broad consensus that any behavioural trait is not caused by a single gene. It does not matter what behavioural trait. Human behaviour is much more complex than that. That is generally agreed, so to suggest that homosexuality as a behavioural trait is caused by a gene is a most unlikely hypothesis.

Secondly, there are twin studies that have looked at heritability of certain characteristics. Your eye colour is 100 per cent heritable. Your intelligence is estimated to be about 80 per cent heritable. Whether you are a smoker or a nonsmoker is about 50 per cent heritable. Whether you have a same-sex attraction is much, much smaller than that. No-one would say, 'I am born to be a smoker and there is nothing I can do about it.' The heritability of homosexuality is much, much smaller than that. The dominant effect is random life experiences. Homosexual or same-sex preference is primarily determined by life experience. As for change, there was a US study that asked high school students at the age of 16 and then later at the age of 22 what their attraction was—were they same-sex attracted or opposite sex attracted—and between one-half and two-thirds who were same-sex attracted at the age of 16 were opposite-sex attracted by the age of 22. A New Zealand study looked at the difference at ages 21 and 26 years and found something similar. If you put those two studies together and look at those at the age of 16 who are same-sex attracted, 80 per cent of them are no longer same-sex attracted; they are opposite sex attracted by the age of 26. So to suggest that homosexuality as a preference or as an attraction is immutable is contradicted by spontaneous change by large numbers of people. To suggest to someone that their sexual attraction at one point is locked in—that it is concrete, that there is nothing they can do about it, that they have to live with it—is cruel to those people.

CHAIR: I don't think anyone is suggesting that. I am not sure where this is going.

Dr Phillips : It was claimed, for example, in the PFLAG submission. They said that same-sex people are born that way, they cannot do anything about it and they just have to lead their lives with it. That is claimed by PFLAG, and it is claimed in other places. I am saying it is not supportable on the available evidence, and the most liberating thing that someone can hear is precisely that: their same-sex attraction is not immutable. It is possible—

CHAIR: Does that mean that heterosexuality is not immutable as well?

Dr Phillips : Yes. There are people and I have—

CHAIR: So that means that people who enter into a marriage opposite-sex attracted—in the continuum of sexualities that you are exploring—could drift out of that relationship

Dr Phillips : Two per cent of the population are homosexual; that which is roughly what the surveys show. This is somewhat fluid and it depends—

CHAIR: It is a continuum; is that what you are saying?

Dr Phillips : No, I am not saying it is a continuum; I am saying that people change. Some people in their younger years start out opposite-sex attracted; they marry; they have children; and then, for some reason, the marriage breaks down and one partner goes into a same-sex relationship. And the opposite thing happens; someone in a same-sex relationship thinks, 'This is not working,' leaves the relationship, and marries someone of the opposite sex. So it is fluid. It is not immutable. That is my point.

CHAIR: I don't think we are disagreeing with you.

Dr Phillips : I am delighted, Mr Chairman, because so often we are presented with the opposite point of view.

CHAIR: Is homosexuality worse than atheism?

Dr Phillips : Are apples worse than oranges?

Mr Wallace : Can I say something from a Christian view, from my point of view and, I think, from the majority view. We have just had Easter. The whole story of Easter was that Christ died for all of us, and he needed to die for all of us, because all of us are sinners. That might be old language and all the rest of it but it is the language of the church and it is the language of faith. Our absolute believe is that no-one, none of us, are any more entitled or are less sinners than anybody else. So is atheism any more a sin? No, only for the fact that it causes a person to reject God; that is going to end up in a few problems. Sins are not, in my view, ranked.

CHAIR: I appreciate that. It was a provocative question. Dr Stone?

Dr STONE: Thank you. Can I talk about civil unions, which a lot people suggest are a 'way out', so to speak, for those who do not feel that the term 'marriage' can be applied to a same-sex couple wishing to have a lifelong relationship. Some people suggest that perhaps civil unions would be an alternative. Four states have gone down the path of looking at civil unions as an alternative way for same-sex couples to legitimise their relationship and so on. Do you have comments about that? Do you see that as a solution to this problem or do you see the same issues as you are discussing in relation to the sanctity of marriage and the business of children's protection within an institution which we call 'marriage'?

Mrs Kelleher : I think we are getting a little bit away from the changes proposed by these bills.

Dr STONE: Not really, because there is an issue in this whole debate about state and federal interplay in terms of the marriage powers and their higher courts' potential interpretation and so on.

CHAIR: Yes. The evidence we had earlier today was that before 1961 the states controlled marriage, and then the Commonwealth stepped in in 1961. There is a suggestion that, because it explicitly refers to 'heterosexual marriage', there could be states or territories that bring in same-sex marriage.

Dr STONE: I am just interested in exploring—

CHAIR: Mrs Kelleher, if you are not comfortable answering, you do not have to.

Mr Wallace : The Australian Christian Lobby—and not everybody at this table agrees with me on this—has been interested to ensure all the time that there is no substantive discrimination against homosexual people. We believe in those states that have introduced a relationship register—where relationships can be registered so that they are legally acknowledged. That has been achieved, and particularly since the 85 or so pieces of legislation that were amended under the Rudd government—and we supported that. We supported that because we believe there should be no substantive discrimination.

I have to say—you will think I am being judgmental, and I am, but I am weary from 11 years of campaigning on this—the reality is that there is no reasonableness in the gay activists. You give half an inch and that is always the basis for them to take another foot. If the church is wary—certainly part of the church is; I am—of civil unions, it is the knowledge of that. They have already stated: 'We are not going to put up with that. It is not enough.' If nothing is enough but to invade the sacred space of other people then I have little sympathy for what is trying to be achieved, because we have always supported the removal of discrimination.

CHAIR: So you would support the concept of protecting committed relationships as a social good?

Mr Wallace : Yes. And I understand—

CHAIR: But not this mechanism, because it could impede—

Mr Wallace : That is just my experience. My experience is of a lack of reasonableness at any point in this debate.

CHAIR: It is interesting to put that spotlight from the Australian Christian Lobby in terms of respecting same-sex relationships and protecting committed relationships—marriage is one of those.

Mr Wallace : Legal entitlements. We do not live in a theocracy. We are not trying to establish a theocracy. We are trying to bring Christian influence into public policy, and I would much prefer to be working on the percentage of GDP that it is put into aid than to be working on this stuff, to tell you the truth.

Dr Phillips : One distinction I would like to make in relation to Mr Wallace's comment is: we would distinguish between individual rights and couple rights. All Australians have the same individual rights—whether they are homosexual, heterosexual, black, white, whatever—every Australian is equal under the law. That is individual rights. Couple rights, we would argue, are a completely different category. The question needs to be asked: why would you define couple rights at all? Would you say flatmates should be registered? If two people are sharing the rent, should that rent-sharing relationship be registered? If two older, spinster, unmarried sisters, for example, decide for reasons of company to share accommodation, should they register their relationship? It is important to ask the question: why should the government be registering any couple relationships whatsoever?

CHAIR: The government would not be registering. My understanding is, in these jurisdictions, individual couples decide to register.

Dr Phillips : The question is: why should any government set up a bureaucratic mechanism to enable people to register couple relationships, of whatever kind?

Dr STONE: And call them, for example, a 'civil union', if it is in of the four states that does that.

Dr Phillips : A relationship register, a civil partnership or a civil union or any of those things—why would you bother?

CHAIR: If it is not marriage and heterosexual, it should not exist—in terms of the state recognising it?

Dr Phillips : I am asking the question: what is the philosophical rationale for registering anything? And my answer is that marriage is a recognition of the reality that when the sexual union of a man and a woman produces children, those children need a stable environment to be raised; it is essentially about providing for the welfare of the next generation of Australians. If a relationship does not naturally produce children—whether it is two flatmates or two older sister or two homosexuals, who cannot naturally produce children—there is no rationale for registering at all.

CHAIR: I might take that as a comment.

Ms SMYTH: It is an interesting proposition and really comes back to some of the comments that were made in the introductory remarks of Mr Wallace and also in your introductory remarks, Dr Phillips. Mr Wallace, I think you talked about the current institution of marriage reflecting what you described as a cultural reality, something that had reflected historical arrangements. Dr Phillips, I think you said something along the lines of, 'Reality cannot be changed by changing the law.' But I think what we are all here discussing today and what the movement around this issue has reflected is that there are a series of realities in our society, that there are a series of realities around the different relationships in our society, that there are realities that exist with the recognition of de facto couples within our society, and that is precisely what the state is expected to respond to. So the first point for me is: at what point does the cultural reality of so many hundreds of thousands of Australians who have a different viewpoint on this become a valid cultural reality and at what point should that inform the state's thinking on the institution of marriage? From my perspective, the time is now on this issue.

The second point, in relation to your suggestion, Dr Phillips, and echoed by Mr Wallace, is about the divergence between your organisations' perspective on what should be the high tide mark for a definition of marriage—namely, fault based divorce and a raft of other things. If there is such a divergence then is it not more appropriate that faith based and other philosophically based organisations set their own tests for their particular expectations of marriage but that the state sets its tests to reflect appropriately the realities of the relationships of so very many other people in our society?

CHAIR: We have already led them with that question and they were not prepared to bite.

Mr Wallace : I think, first of all, the two things—recognising you are operating in a secular government—that would perhaps cause you to do this, to trump over and change this long-held definition—and I might just say there that my point about it culturally and historically is that this has been forever.

Ms SMYTH: But there are many things that have been forever, which—

Mr Wallace : No, I know. No, that does not justify it. But I think what it means is that you only change it if you have got good reason. There are two things that would need to be the good reason in my book. First of all, we would have to show that there was some substantive discrimination against those who now claim that, despite the fact that the long-held definition of marriage as between a man and a woman, because they do not fit into that they are somehow substantively discriminated against. That is not the case. There is no substantive discrimination, despite all the propaganda that has gone up around this particular campaign. I would expect the inquiry to make a statement on that, because—

Ms SMYTH: Is it according one set of people certain rights based on a characteristic?

Mr Wallace : We are accorded certain rights based on characteristics all the time.

Ms SMYTH: To the exclusion of other people—

Mr Wallace : Well, if I have got a girl and I am looking at the best school in Sydney to send her to and it happens to be a boys school, I cannot send her there. There are some things that are a fact, which reflect our biology. I think we would not call that discrimination.

Ms SMYTH: So the biological criteria is the only thing that you are really concerned about; that is the only thing that sets the current definition of marriage apart from what should be—

Mr Wallace : Well, it is a pretty important one. In our biology—

Ms SMYTH: But the biological issue returns again to the issue of procreation, which is not necessarily a reality for everyone.

Mr Wallace : I did not return it there; you did. I am saying that the biological issue here is that in the biological reality and truth of marriage, we create motherhood and fatherhood within that environment and we protect it and we encourage it, and that—

Ms SMYTH: So how is that not about procreation? I'm sorry, I'm not clear about how that is not about procreation.

Mr Wallace : It is, but I am not going to go back and say that you have to be able to have children in order to be married—there is more to marriage than that. What I am saying is that for society and for government in its responsibility to society to take this thing called marriage and say: 'What good does it give us?' One of those goods, which, with all the good intent in the world, a homosexual couple could never be is at the same time a mother and a father to a child. I am saying that that concept needs to be protected by government. It is the government's responsibility to protect those concepts.

The second thing is that, if it were substantive discrimination that might lead you to choose to change this long-held definition, if suddenly you decided that your value on family was such, or your value on motherhood and fatherhood was such, you were prepared to sacrifice it. I do not believe that governments should do that. I think that for all the benefits that marriage holds—for all the benefits it holds in its aspiration to the exclusion of all others, man and woman, biological parents, for life, for the benefit that holds for children—governments need to uphold that. There would have to be some really, really good reason to overturn it.

Ms SMYTH: Again, and we have raised this issue—or I have raised this issue—a few times today, doesn't that invite government to cast the definition of marriage very narrowly to apply only to those people who are capable of procreating or who choose to procreate?

Mr Wallace : But unless there is a really good reason why you should overturn this—if you cannot provide something for the homosexual people who do not fit into this—it is like the example of education. There are girls schools out there, so if I have two daughters I send them to a girls school, for goodness' sake. We are talking about overturning not something as simple as a school's right to teach a single sex but the most fundamental institution in the whole of our history. I do not believe that it is justified.

CHAIR: We are coming to the end of time. Would the Australian Family Association like to make a comment?

Mrs Dodd : I will just briefly make two points. Firstly, Jim was saying that marriage is man and woman procreating to form children, and then you said: 'Doesn't this exclude people who are infertile et cetera?' In the case of a homosexual couple entering into marriage and having children, it is not the exception, it is the absolute rule that both of them are not exclusively the biological parents of that child.

CHAIR: One of them might be.

Mrs Dodd : Yes, but not both, exclusively, as is the case with marriage—

CHAIR: But there are heterosexual couples in the same situation.

Mrs Dodd : Yes. The second point, and this is my major concern, is: you said—sorry, I've lost my train of thought.

CHAIR: We might come back to you.

Dr Phillips : Procreation, as we would see it, is at the core of marriage. Marriage provides a social institution which has the expectation that every marriage would be open to having children. That does not necessarily mean that every marriage has children, because some people are infertile. An analogy might be—

CHAIR: Too old—

Dr Phillips : For a variety of reasons.

CHAIR: But you are not saying that they should not be allowed to marry.

Dr Phillips : No, I am not saying that, but it is a little bit like—I do not know if it is a good analogy—to become a doctor and practice as a GP you have to get your MB BS, or whatever it is; you have to show that you are competent in medicine. You may qualify as a doctor, but, for various life reasons, you may never actually practice as a GP. That does not stop you being a doctor, but the rules on entry into the medical profession are there to prevent people who are quacks or who think they have some therapy that works but which is not evidence based. There are certain things that define medicine as a profession; there are certain things that define marriage as a social institution as the environment in which society wants to encourage procreation. So the concept of marriage is intimately, but not exclusively, linked to procreation.

CHAIR: Mr Bandt, have you any final comments?

Mr BANDT: Gay marriage will not become compulsory if these bills pass. The vast majority of marriages will probably still continue to be between heterosexual couples, and people who want to have children will decide, exactly as they do now, whether to do it in or out of wedlock. None of that is going to change. What the legislation would do is, in fact, elevate the importance of marriage. You now have a group within our community saying, 'We understand that marriage is so important that we want to be able to share our love and commitment for life.' Surely that is going to only elevate the importance of marriage.

Dr Phillips : Exactly the opposite. It will undermine community perceptions and expectations. I remember when I was growing up that I was thinking, 'One day when I grow up I will marry a girl.' I was told that I cannot marry a close relative because that is not allowed.

CHAIR: You could marry your cousin.

Dr Phillips : Yes. There was some discussion. I rather liked my cousin and I was told, 'That's really not recommended. It's legal but not recommended,' so we had a discussion in the family about those things.

CHAIR: You could even marry an uncle or an aunt, from memory. It is closer than I thought—

Dr Phillips : It depends on whether you take the Marriage Act or the church rules. The church rules are a bit tighter than the Marriage Act. The point is that children grow up in the present situation, or the desirable situation, where the procreation of children is at the core of the institution known as marriage. To take it outside of procreation and say, 'It's about any people who love each other,' or something or other, is to totally change the focus of marriage from procreation to recreation. We believe that is a retrograde step.

Mrs Dodd : I go back to what Laura was saying. Correct me if I am wrong, but I thought you were suggesting that perhaps you could have guidelines that the church set for what it will allow marriage to be and the state could have separate guidelines for what its prerequisites are for marriage.

CHAIR: Which is the current situation.

Mrs Dodd : My concern is: how long can this clash coexist before one set of perceived rights overrides the other set of rights? Overseas, like in Massachusetts—and this is in Terry's submission—Canada and somewhere else, parents do not have the right to opt their children out of classes teaching that homosexuality is a normal practice.

CHAIR: We are drifting into education. We might go on to Mr Wallace because we are out of time.

Mr Wallace : Mr Chairman, could I ask for your indulgence for just one second. There is one thing we have not discussed—and I realise we probably will not have time to—but I would like to alert the inquiry to it: the vulnerability to freedom of religion and freedom of conscience are real issues. There has been a decision by the European Court of Human Rights in the last three weeks. There has been legal commentary on that decision. The core of the decision was that, because France had not made marriage available to homosexual couples, it was not required to extend particular entitlements—in this case, adoption—to homosexual couples. The commentary is that, if you legislate for marriage—and I understand this—then you cannot deny anybody of that status. You cannot deny those people anything. This creates a huge vulnerability for the church. I can tell you that, right across all the denominations I was talking about, there is huge concern.

CHAIR: Mr Wallace, I am sorry we are out of time. I suggest you have a look at the Hansard, particularly our session with Gilbert and Tobin and the Lawyers for the Preservation of the Definition of Marriage, and also that of the civil celebrants, which touched on that. I am sorry we do not have more time, but we did deal with that a little bit earlier. Thank you very much for coming in and presenting your information.