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Thursday, 12 November 2015
Page: 8405


Senator McKIM (Tasmania) (10:57): I rise proudly to support the Marriage Equality Amendment Bill 2013. In doing so, I congratulate Senator Hanson-Young for sponsoring this bill and continuing the Greens' extremely proud tradition of being the only political party in this country that can legitimately say every single one of our MPs in every single parliament where marriage equality has come up for debate has supported marriage equality. It is a proud tradition and we will continue to work incredibly hard with the gay and lesbian community, the broader Australian community and those people from other political parties who support marriage equality to see this reform pass into law.

This bill will strengthen the institution of marriage. It is an institution that has evolved over time to reflect the expectations of communities and there is no doubt that the Australian community is ready for marriage equality. Poll after poll after poll shows that a majority of Australians want this reform. This bill will also strengthen families. In strengthening families, it will also be beneficial for children who are part of those families. While our legislation in this country contains discriminatory provisions such as those in the Commonwealth Marriage Act it makes it very difficult or impossible for us to eliminate discrimination in our communities. It makes it difficult or impossible for us to address discrimination in schools, in sporting organisations, on the streets, in the pubs and in our families.

You need only look at the appallingly high suicide rate, particularly of young gay men, to understand the urgency of this debate. I want to speak today about the suicide of one young gay man called Nathan. I want to acknowledge his partner Ben Jago, who has bravely written about Nathan's death and Ben's subsequent experiences. In the article, published in The Examiner newspaper earlier this month, Ben writes that in January this year his partner Nathan took his own life in Hobart. He talks about how distraught and overwhelmed he was when he discovered Nathan's body. He talks about how, several hours after Nathan's death, Ben was interviewed by the police. The police told Ben that Nathan's mother would be recognised as next of kin and not Ben, and that Nathan's mother would be given custody of Ben's body.

Ben then contacted the coroner's office in Tasmania and was told that he, Ben, could only be considered next of kin if he went to the office of Births, Deaths and Marriages and registered their relationship. Of course, when he contacted the office of Births, Deaths and Marriages in Tasmania, he was told, quite rightly, that both parties had to agree to register a relationship. And, of course, that was not possible, given that Nathan was dead. It is absolutely extraordinary—the advice that he received from the coroner's office. As Ben points out in the article that he so bravely wrote for The Examiner, at every point in those terrible, traumatic hours following Nathan's death, what he was told was incorrect or misleading. Ben did not know at the time that, under Tasmanian law, he is deemed, and would have been deemed, to be Nathan's significant partner and next of kin, even without registering a relationship.

Then, as Ben says, events cascaded out of his control. He learned that Nathan would be buried in his home town of Ulverstone on Tasmania's north-west coast, against his express wish to be cremated in Hobart. He asked to see Nathan's body in hospital but was denied access to see the body of his long-term partner. By the time he found a lawyer to help him with that, the body had been released to Nathan's family. He found out when Nathan's funeral would be only through word of mouth and had to negotiate with Nathan's family. He was told that he could attend Nathan's funeral but only if he sat down the back and said nothing. Ben writes that the ceremony did not reflect Nathan's life and made no mention at all of their relationship. This was the man whom he regarded as his soul mate. They had planned to marry in New Zealand, having, unfortunately, of course, not had the opportunity to marry in this country. They had been engaged for more than a year.

Ben writes that he felt like he was treated like he meant nothing to Nathan and was not even a part of his life. He says that it left him feeling like part of this soul had been crushed into dust. He writes that he felt worthless as a person and had to question why he engaged with a society that does not protect his rights. He also writes that he believes that, if Nathan and he had been able to marry under Australian law, none of what he described in his article would have happened. He quite rightly points out that a marriage certificate would have put his legal rights beyond doubt, with no room left for prejudice or ignorance. Then he makes a crucial argument in favour of marriage equality. He says—and I will quote from his article:

Even if we hadn't planned to marry, the fact of being allowed to marry would have made a major difference to how we were seen.

Marriage equality will send a message to every estranged parent and indifferent official across Australia that they can no longer disregard and disrespect the equal rights of same-sex partners.

He also says:

I hope my story wakes up all those politicians who say 'gays have all the rights they need already' because clearly we don't really have these rights while they can be so easily ignored.

It is worth pointing out that some of the circumstances that Ben outlines are subject of an anti-discrimination case in Tasmania. As that is a live case, I will respect the process and not make any further comment on it.

That is a terrible story. It is an awful story of a traumatised man who was treated appallingly by officials in Tasmania. It should be cause for us all in this place to reflect on this very basic truth: while our country's laws discriminate against same-sex couples, it will be very difficult or impossible for us to eliminate that discrimination in our communities. Even if there were no other arguments in favour of marriage equality—and there are many—that one, of itself, is enough of an argument that this bill should be passed.

I want to go through a little bit of the history of the marriage equality debate in this country, particularly the parliamentary history of the marriage equality debate. It is really interesting that when the Greens in the Tasmanian parliament tabled this country's first ever suite of marriage equality legislation in 2005 we could not even get the support of the House of Assembly to refer those laws to a parliamentary committee for an inquiry. That was 10 years ago. The Tasmanian parliament would not even hold an inquiry into same-sex marriage legislation. How proud a day it was for Tasmania when in 2010 we became the first state to recognise overseas same-sex marriages through the provisions of our nation-leading Relationships Act. In 2011 the House of Assembly became the first house of any parliament in Australia to vote for in-principle support for marriage equality. Then, one of the proudest days in my political career was in 2012 when the House of Assembly in the Tasmanian parliament became the first chamber in any Australian parliament to pass marriage equality legislation.

I want to say here that it has always been the view of the Greens and it is also my view that this reform should happen through the Commonwealth parliament so that it applies to all states and territories in our country. But back in those days it was blindingly obvious that the Commonwealth parliament was not going to be prepared to step up and pass marriage equality through both of its houses. I want to acknowledge Professor George Williams, who provided me with an extremely robust piece of constitutional advice that we released publicly in support of our first marriage equality legislation in 2005. That advice made it very clear that, in the opinion of Professor Williams, the discriminatory amendments to the Commonwealth Marriage Act—supported, I have to point out, by both the Labor and Liberal parties at the time—which limited the scope of the Commonwealth Marriage Act to marriage between a man and woman provided the constitutional space in Australia for states to legislate for same-sex marriage, because section 51 powers in the Australian Constitution are concurrent powers. In fact, until halfway through the last century it was actually states that dealt with marriage in Australia, not the Commonwealth.

I thank Professor Williams for that advice. I know there are many members of state and territory parliaments around the country who are watching very carefully the way this debate is evolving at a national level. It is worth pointing out that if the Commonwealth parliament does not fulfil its responsibilities in this area I have no doubt that these debates will arise again in state and territory parliaments in the not too distant future, because this is an issue that needs to be resolved as quickly as possible, in part so that people like Ben Jago are less likely to go through the traumatic experiences that he did.

We do not need a plebiscite in Australia; we just need MPs to step up and do their job. We were elected to this parliament to legislate, to make the laws of this country. It is one of our most fundamental duties as members of the Commonwealth parliament, and we ought to be prepared to step up and fulfil those responsibilities that are entrusted to us by the Australian people and to address the issue through the parliamentary forum, as we are today.

I share the fears articulated by Senator Simms in his speech that there is a very real risk that the debate will be divisive in our community and that a small but well-resourced lobby will take the opportunity to use debate to demonise gay and lesbian people in this country. We have examples of how some powerful people in the Catholic Church have used their power and the authority and the reach that they have to distribute material that, in my opinion, clearly discriminates against same-sex couples—and I am talking about the Don't Mess With Marriage pamphlet that has been distributed to a number of Catholic schools around Australia and has been made available online. It is worth pointing out that that pamphlet itself is also the subject of anti-discrimination action in Tasmania, and I declare that that has been brought by Martine Delaney, a Greens candidate. It is so important that, firstly, that sort of what I believe is offensive material is not allowed to be distributed and, secondly, when it is distributed, those who distribute it, and particularly those who author it, are subject to the legal protections that I believe exist in Tasmania, at least, to ensure a respectful debate on this issue. It is our fear that a plebiscite will allow those who vocally oppose marriage equality to divide our country on the basis of this issue by smearing gay and lesbian people.

So, as I have said a couple of times, we in this parliament are leaders and we have a responsibility to show leadership. The time has actually long passed for marriage equality. But, while we still sit in a parliament and allow discriminatory laws to go unchallenged and to continue to exist on our nation's statute books, how can we go into our schools, pubs and sporting organisations and say: 'Don't discriminate against gay and lesbian people,' because we lose the moral authority to do so because we allow discriminatory statutes to continue to exist in this country. As I said, even if you ignore the many, many other legitimate and meaningful arguments in support of marriage equality, that alone ought to be enough of an argument to sway this parliament—this Senate and the House of Representatives—into supporting marriage equality legislation.