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Monday, 19 August 2002
Page: 3129

Senator GREIG (9:22 PM) —I rise tonight to speak on the Marriage Amendment Bill 2002. The marriage celebrants program was established, as Senator Ludwig said quite rightly, over 25 years ago by the then Attorney-General, Lionel Murphy, providing an alternative for couples between a religious marriage ceremony and the registry office. The Australian Democrats are happy to be supporting the wide-ranging marriage celebrants reform proposals that have now emerged from a four-year review of the program. When the program was started in 1973, fewer than one couple in six chose a civil marriage and yet today over half of all marriage ceremonies in Australia are performed by civil celebrants. The program has developed in a fairly ad hoc way with celebrants being selected on the basis of recommendations by members of parliament to a quota system based on demonstrated need in the community and based on Australian Bureau of Statistics data.

In 1996, the review of the marriage celebrants program was commenced, and the reforms that have emerged four years later are intended to improve the professional standards required of celebrants through appropriate training and ongoing professional development, and to ensure consistent quality service to couples engaging the services of celebrants. Celebrants will also have their role broadened to include information on premarriage and other relationship services.

Other initiatives in the bill include establishing a Registrar of Marriage Celebrants, which will develop a mechanism for complaint handling and maintain the list of registrations of marriage celebrants. There will also be a transition period of five years, during which time the number of celebrants will be limited to a 10 per cent increase each year, preventing a flood of new celebrants on the market.

There are a number of interesting issues which fall within the parameters of this discussion and which I would like to bring the Senate's attention to tonight. The first is the recognition that more and more people are choosing not to marry. The number of people willingly living in de facto relationships, whether of the same or opposite sex, has increased dramatically over the last few decades. So, while the government seems to think that amending the Marriage Act in relation to civil celebrants is a positive step forward, it fails to recognise the huge numbers of people for whom marriage has no attraction—whether church based or done through civil celebrant processes. I think the government needs to broaden its legislative scope to recognise the great diversity in modern relationships with legislation that recognises and protects all long-term and consenting relationships—especially those where children are involved.

I think too that we need to recognise the failures of marriage as an institution. As it stands, some 40 per cent of marriages end in divorce, with the number of second marriages breaking down at an even greater rate. These numbers seem to be slowly increasing. If we are to protect the institution of marriage, then we need to do much more than just tinker at the edges with reform relating to civil celebrants. We need to look at foundations, and the expectations of those entering and involved in marriage. We need to look at the social and economic pressures on marriage that may be responsible for or contribute to marriage breakdown rates and, perhaps far more importantly, we need to look at premarriage counselling in more comprehensive and effective ways. But the same is true I think of those people in de facto relationships. I do not believe that people in de facto relationships should be regarded as lesser beings or as being in lesser relationships by virtue of their not being married.

The ongoing conflict at times between state and federal laws also means that relationship recognition can be unnecessarily complex. While the states have jurisdiction over de facto relationships, including many same-sex de facto relationships, the Commonwealth has sole jurisdiction over marriage by virtue of the Marriage Act 1961. Now 40 years old, the Marriage Act is not reflective of contemporary relationships and not reflective of modern Australia. For example, some 60 per cent of couples these days live together before marrying—more than double the number that did so just 20 years ago. However, most children are still born to married couples and most children still live in what we consider a traditional nuclear family. That said, it is clear that the typical family is changing. Recent studies show that couples without children will overtake those with children in the next 14 years.

The laws around marriage and human relationships have for the most part not kept up with the realities of Australian life. This results in discrimination and inequities and is most prominent in areas such as de facto relationships, same-sex relationships and the failure to recognise intersex and transgender Australians. The issue of rights—or lack of them—for transgendered people to marry has recently been cause for the Attorney-General, Mr Williams, to intervene through the courts in the matter known simply as the Kevin and Jennifer case.

On 12 October 2001 Justice Chisholm of the Family Court of Australia found that a post-operative female to male transsexual had validly married. In what was a test case for transsexual marriage in Australia, the court found that contemporary society had moved ahead of the law and its definition of what constitutes a man in the context of marriage law. The Marriage Act has been interpreted by common law to mean that a marriage is only valid between a man—male at birth—and a female. In his conclusions the judge noted:

There is no rule or presumption that the question whether a person is a man or a woman for the purposes of marriage law is to be determined by reference to circumstances at the time of birth.

I believe the Family Court's decision to recognise the marriage between Kevin and Jennifer is light years ahead of the federal government and federal law. The Marriage Act must be updated to reflect both domestic and international contemporary understanding and acceptance of transsexual rights and contemporary adult relationships.

The Marriage Act must also be updated to take into account advances in medical knowledge since 1961. The judge's findings and lengthy judgment reflect upon these advances. For example, of particular interest is the evidence that recent discoveries have overturned our traditional understanding of transsexuality. It is understood that the traditional understanding that transsexuals are biologically of one sex but psychologically of another, is mistaken. In fact, as the judgment stated:

... the argument is that transsexuals are as much biologically intersex as our understanding of other intersex cases are today.

Expert evidence also declares that a person's self-perception and the perception of others is the best available guide to a person's sex.

Interestingly, the medical knowledge surrounding intersex conditions is also new since 1961. Intersex conditions refer to people born with reproductive organs and/or sex chromosomes that are not exclusively male or female. We now understand that there are many circumstances in which a male who at birth had female ovaries, chromosomes and genitals and was at that time deemed to be a female child may nevertheless be a man physiologically and psychologically. The same applies to a baby who is recognised by genitalia as a male child at the time of birth but through gender identity or other chromosomal factors later becomes female.

In the 1960s and beyond, the medical community performed surgery very early in an infant's life in an effort to make the child clearly male or female. Today there is so much more awareness of intersex conditions with some estimates suggesting that as many as one in 2,000 newborns have such a condition. When compared to the incidence of cystic fibrosis, which is estimated to be one in 2,500, it would appear that intersex conditions are far more common than one may think.

Just last week on 10 August, the West Australian reported the dilemma faced by Chris Somers, an intersex person who has been raised as a man and who wishes to marry his girlfriend and have that marriage legally recognised. Doctors have certified that Chris Somers is a 47XXY intersex person who has physiological and psychological characteristics associated with both genders. The failure of the legislature to bring our laws up to date with contemporary society and medical knowledge is having real effects on real people in our society. It should not be left to the courts to lead that change. Yet, sadly, a spokesperson for the Attorney said recently that `change was not on the radar screen' and that `there was no reason to contemplate change with respect to intersex people'. The result is a cruel and irrational situation.

Mr Tony Briffa from the Androgen Support Group in Victoria has said in reply that, until the marriage issue is addressed, intersex people run the risk that their marriage might not be recognised later in key areas such as property, insurance, and medical powers of attorney. Greater understanding and recognition of modern societal expectations would allow not only for the explicit recognition of the right of a transsexual or intersex person to marry but also for same sex couples to tie the knot. Same sex marriages are now recognised in the Netherlands, in several other European countries and in the US state of Vermont, and official recognition of the union of same sex couples is available in a number of other jurisdictions around the world. This raises the interesting question of overseas same sex marriages and what that might mean for Australian law.

Indeed, two newspaper articles recently drew attention to the fact that courts could interpret gay and lesbian marriages as legally valid unions under our own Marriage Act. It was reported that one of Australia's top jurists, former Family Court judge and leading Sydney academic Peter Nygh, recently deceased, had advised the government that the Marriage Act contained a clause that would allow overseas same sex marriages to be recognised by courts. In the same way that the Family Court found that the community had moved light years ahead in its acceptance of transsexuals marriages, it may be left to the courts to take the legislative lead in same sex marriage. But it should not go unnoticed that the Senate has the opportunity here, as we debate these proposals and amendments to the Marriage Act, to make those changes. Indeed, Australia's failure to recognise the union of same sex couples is now the subject of a case before the United Nations. An Australian man, whose same sex partner was a war veteran, is taking the federal government and the Department of Veterans' Affairs to the UN alleging discrimination after he was refused a pension as the same sex partner of a deceased Second World War veteran. As it stands, all states and territories have moved to legally recognise to varying degrees same sex relationships within those jurisdictions, or at least have given notice of intention to do so.

However, reform is needed at a federal level because the effect of the Marriage Act 1961 and section 109 of the Constitution is that the Commonwealth has exclusive jurisdiction over the formation of marriages in Australia. This means that, while most states have gone some way to removing discrimination against same sex couples and transgendered people, the law must be amended at a federal level to formalise those changes and complete them. A failure to do so means that the UN appeals will remain the last resort for people trying to change the law, as we saw in Tasmania in 1989. The absurdity of this came home to me last year when I appeared before the Senate inquiry into recruitment and retention issues facing the Australian Defence Forces. I questioned Major General Willis over the failure of the ADF to provide married quarters and other benefits to ADF personnel and the failure to have a process whereby the same sex partner of an ADF member could be provided with counselling or even compensation in the event that their partner was killed or injured. I asked Major General Willis how this discrimination against gay and lesbian members of the ADF fitted with the ADF's stated policy of non-discrimination and equity. I was told that homophobia and gay and lesbian discrimination was not tolerated in the ADF but that the Marriage Act 1961 and the Sex Discrimination Act 1984 was prescribed in a way that gave the ADF no alternative other than to exercise this discrimination. It is a ridiculous catch-22 situation.

The Australian Democrats' Sexuality and Gender Status Bill, which has been on the Senate Notice Paper for seven years but ignored by successive governments since its introduction, would ensure that all people, including people with a sexual or gender identity different from the majority, have the right to equality under the law. Until it is debated and the Marriage Act is amended, people will continue to look to the courts, both domestic and international, to fight for their relationships to be recognised.

In supporting this bill, we Democrats are also keen to explore the issues surrounding same sex and intersex marriage and relationships and propose some amendments to the bill to that effect. This includes exploring the notion that same sex couples married overseas ought to have legal recognition here in Australia but, more importantly, that same sex couples and people of intersex status should not be denied access to marriage rites at the very least through some kind of legal recognition in a civil marriage structure in a way already adopted by several other countries. Marriage ought not to be part of a hierarchy to the detriment of other relationships. It can be an important part of our societal make-up, but it should not be used as a tool to discriminate against people and relationships that do not fit an often unspoken but religious agenda.

Ideally, I think we need a broad ranging and comprehensive Senate or parliamentary inquiry into the nature and structure of contemporary Australian relationships and a thorough analysis of what law reform is needed to respond to that—not as social engineering to force a particular model or relationship on people in accordance with a church agenda or ideological framework, but in a way that acknowledges and reflects relationships as they truly are and provides a safe legal framework in which they can be protected most especially where the raising of children is involved. If the government is serious about cutting the divorce rate, I think it first has to acknowledge that unrealistic and inadequate frameworks for marriage may well be a contributing factor in many cases. Likewise, there may be many more marriages and many more long-term relationships if all Australian citizens were offered the same opportunities as some others so that all long-term committed couples could marry regardless of sexuality or gender.