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Thursday, 20 June 2013
Page: 3500

Senator BRANDIS (QueenslandDeputy Leader of the Opposition in the Senate) (10:01): Senator Hanson-Young, in a characteristically highly emotive but essentially content-free speech, said that the issue before the chamber this morning is all about love, but for me the issue in fact before the chamber is something much more prosaic than that. The issue before the chamber this morning is the proper application of the rules of private international law when it comes to the domestic treatment of foreign marriages. That might seem to be a pedantic point to some, but it is an essential point, because we as legislators—particularly legislators sitting in a house of review—have an obligation when dealing with bills that come before us to be technically competent. So, all the fine effusions of sentiment that we have heard from Senator Hanson-Young do not answer the point that this bill is defective from a technical point of view. This is not a debate about gay marriage at all, although Senator Hanson-Young and others would like to characterise it as being so.

There is a large and complex body of legal principle which governs the way in which nations deal with marriages solemnised in other jurisdictions. It appears that Senator Hanson-Young is not acquainted with the relevant principles of private international law, but if she is going to essay into this area perhaps she should make herself acquainted with them. There are relevant legal rules, and they come from both the Marriage Act and a body of common-law principles. The relevant legal principles are that Australia will only recognise a foreign marriage if two criteria are met. First of all, the marriage must be formally valid according to the law of the foreign jurisdiction—what private international lawyers call the 'lex loci celebrationis'—and, secondly, it must be essentially valid according to principles of Australian law. Only if both of those legal criteria are met can a state recognise a marriage celebrated overseas.

Australian law does not recognise same-sex marriage. We have had a debate about same-sex marriage in this country for some years now and there are divided views on the subject, but the issue presented to the chamber today is not that debate, even though in a clumsy and intellectually careless way Senator Hanson-Young tries to characterise it as being that debate. The real question that is posed to the chamber by this bill concerns the circumstances in which Australian law should recognise foreign marriages that Australian law does not recognise. The bill as drafted—and I do not wish to reflect upon the draftsman—is not competent even to achieve the objective that Senator Hanson-Young prescribes, because although the bill would repeal from the Commonwealth Marriage Act section 88 EA—which provides that a union solemnised in a foreign country between a man and another man or a woman and another woman must not be recognised as a marriage in Australia—it does not repeal from the Marriage Act section 88E, which provides:

(1) Subject to subsection (2), a marriage solemnised in a foreign country that would be recognised as valid under the common law rules of private international law but is not required by the provisions of this Part apart from this subsection to be recognised as valid shall be recognised in Australia as valid, and the operation of this subsection shall not be limited by any implication arising from any other provision of this Part.

Senator Hanson-Young probably does not appreciate this, but section 88E, which her bill does not seek to repeal, invokes the common-law principles of private international law, to which I have referred, and about which many scholars have written at great length. This is a complex field. It is a complex and a technical field. This morning's debate is an object lesson in the principle that, if we are to deliberate intelligently in this chamber on legislation, we should know what we are talking about, and Senator Hanson-Young does not have a clue. Rather, she represents this as being, as it were, a proxy debate about whether there should be same-sex marriage.

Apart from the technical problem that I have indicated of the fact that her bill would leave section 88E of the Marriage Act unaffected, were it to be passed it would produce this bizarre result that Australian law would recognise marriages between same-sex couples solemnised overseas but would leave unaffected the prohibition of the solemnisation of such marriages in Australia, because Senator Hanson-Young's bill does not purport to legislate for or to legalise same-sex marriages solemnised in Australia. In fairness, on previous occasions she and her Greens colleagues have brought bills to that effect to the chamber, but this is not one. So we would have this preposterous result: leaving aside the technical arguments, which are beyond Senator Hanson-Young's comprehension, Australian law would recognise same-sex marriages solemnised overseas while continuing to prohibit same-sex marriages in Australia. That is a bizarre result.

As I said a moment ago, we have had for some years now a debate about whether Australia should legalise same-sex marriage, and the community has divided views on this matter. There are different views within different political parties. But the way to approach this issue for those who are proponents of same-sex marriage is to deal with it directly, not to deal with it in the anomalous and bizarre and, from a technical legal point of view, incompetent way that this bill would do.

Let me address for a moment the broader issue. There is something chillingly unpleasant about hearing Senator Hanson-Young give one of her emotional speeches and claim, as she does, that her point of view is the only morally legitimate point of view. How dare you. How dare you be so puffed up with moral vanity that you claim that your point of view is the only morally legitimate or decent point of view. Because, Senator Hanson-Young, there are millions and millions of Australians who vigorously dissent from your view, who have a commitment to the definition of marriage, as that has always been understood until very recent days across western civilisation, as a union between a man and a woman to the exclusion of all others for life—the traditional definition of a marriage in English law now repeated in the Marriage Act. I am sure those people—the people who adopt a traditional view of marriage—would not be so bigoted, would not be so contemptuous, would not be so authoritarian as to say to you, Senator Hanson-Young, your view is illegitimate; you are not allowed to entertain your view. But that is what you say to them. With every plangent utterance that falls from your lips, Senator Hanson-Young, that is what you say to them, to the people who do not share your view. You seek to delegitimise their right to hold a different opinion, and that is disgusting. That is disgusting. There is no role in a liberal democracy for the moral authoritarianism that underlies the approach that Senator Hanson-Young and some, though not all, of her colleagues take on this issue—the posturing self-righteousness that says: 'There is only one side to this argument and it is mine.' If you want a decent and reasonable discussion of this issue, because there are people, Senator Hanson-Young, in all political parties who might agree with your ultimate conclusion, then have the courtesy and have the respect for your fellow citizens to acknowledge the other point of view, something I have never, in all the years I have served with you in the Senate, seen you do, whether it be on the issue of same-sex marriage, whether it be on the issue of refugees, whether it be on the issue of climate change, whether it be on any of the shibboleths with which the Greens like to garland themselves.

As I said before, there are two views in the community on this issue and they are strenuously contested. The Prime Minister, Ms Gillard, claims to believe that marriage is between a man and a woman, so does the Leader of the Liberal Party, Mr Abbott, so does the Leader of the National Party, Mr Truss, so does the Leader of Katter's Australian Party, Mr Bob Katter, and so, I believe, does the Leader of the DLP, Senator Madigan. With the exception of the Greens, the leader of every political party in this country at the moment adopts the traditional view of marriage. I see Senator Penny Wong has just walked into the chamber. I remember many an occasion on which Senator Penny Wong supported what was then the Labor Party's line that marriage is between a man and a woman only, because that was the Labor Party's position until a couple of years ago. It beggars belief that when the leaders of every political party in this country, bar yours, have one view and you have a different view that you can treat their views as being somehow morally illegitimate. So, by all means, put your opinion, Senator Hanson-Young, but have the decency to treat those who do not agree with you with the respect with which they treat you.

The coalition's position on this issue is perfectly clear. Our position is, and always has been, to support the traditional definition of marriage. That having been said, we all know that there are many people in the coalition parties who are of a different view. This is not a party political issue in that sense. Our colleague the member for Higgins, Ms O'Dwyer, has recently declared her support for gay marriage, as has my colleague from Queensland, Wyatt Roy, the member for Longman, and many others as well. As you and I know, Mr Acting Deputy President, one of the glories of the Liberal Party is that people are entitled to take a different view from the party's official position, and they do, and nobody is ever chastised or punished for doing so. This is one of the great differences between the Liberal approach to politics and the authoritarian approach to politics which we see among parties of the Left.

Senator Wong, who strongly believes in same-sex marriage, was for years forced to defend the traditional definition of marriage against her own beliefs because she is a member of a political party that is governed by authoritarian principles. Until the Labor Party decided to move its position to a conscience vote, had she dissented under the Labor Party's constitution she would have been expelled from the Labor Party in the twinkling of an eye. That has not happened to those in the Liberal Party who do believe in a change to the definition of marriage.

Let me conclude where I began. This is a difficult issue. There are two sides to that issue and nobody of either side should delegitimise the right of a person to an alternative view to their view. If it is to be dealt with, it should not be dealt with in this form because, as I said at the start, this is not a bill about gay marriage; it is a bill about private international law drawn by somebody who simply does not understand the relevant legal principles. Were it to be passed, it would leave unaffected entirely inconsistent provisions in the Marriage Act, particularly section 88E, and it would produce the ridiculous conclusion that Australia will recognise foreign marriages which would be unlawful if contracted in Australia under our existing laws. That is a preposterous, a ludicrous, piece of law reform. No doubt Senator Hanson-Young is using this bill merely as a vehicle to agitate the broader issue. I suppose she is entitled to do that. But those, particularly in the Labor Party, who might be inclined to vote for this bill should be smart enough to work out that this is not the way to achieve the objective to which many of them subscribe. What this bill would do, were it to be passed, would be to leave Australian law in an inconsistent, anomalous and plainly ridiculous state.