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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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SAME SEX MARRIAGE BILL

Second Reading

Adjourned debate on second reading.

(Continued from 20 June 2013.)

The Hon. J.W. WEATHERILL (Cheltenham—Premier, Treasurer, Minister for State Development, Minister for the Public Sector, Minister for the Arts) (10:31): The great Labor project is inclusion. Throughout history, people have been excluded for many reasons. In classical Athens, democratic citizenship was restricted to an elite class of free men and excluded slaves and women from political participation. In biblical times, orphans and widows were counted among the oppressed and marginalised. Until recently, minority ethnic and religious groups were segregated by law from mainstream society in many countries. In some countries, minority groups remain marginalised today.

Significant progress has been made on many of these issues, whilst other sources of inequality remain unresolved. Universal suffrage was not won until the 19th and 20th centuries. While Aborigines had the right to vote in South Australia in 1895, the commonwealth took away this right and it was not until 1965 that all Aborigines had full and equal rights in Australia after Queensland gave Aboriginal state voting rights.

In South Africa, the system of apartheid was abolished only two decades ago. It was not until 1965 that married women in France could work without the permission of their husband. In Australia, equal pay for work of equal value by women was introduced in 1969, and some would say that its promise has not yet been delivered upon.

The fight to reform legislation, so that all people have equal access to social institutions and customs, goes on throughout the world. All people are entitled to respect, equality, dignity and the opportunity to participate in society free of hatred or harassment, as well as receive the protection of the law regardless of their sexuality or gender identity.

The contemporary history of the Australian Labor Party has been marked by a fight to achieve equality—initially, by helping people overcome disadvantage based on social class, then later, gender, racial prejudice, disability, religion, cultural background and sexual orientation. In the ALP, however, we understand that this issue challenges many people to reflect upon their values and beliefs.

Our understanding of marriage, even when the debate defines marriage as an institution of the state, is profoundly personal. For this reason, we have taken the view that our elected representatives should express their personal position. All members of our parliamentary party agree that this is a conscience matter.

The South Australian Labor government was the first in Australia to decriminalise homosexuality. We have a strong history of removing barriers to equality and inclusion in this area. In 2011 the Australian Labor Party South Australian State Convention passed a motion to support same-sex marriage, support marriage equality, for marriage equality has been the established policy of the South Australian branch of the ALP since that time. This was followed by the ALP National Conference resolution that the Marriage Act 1961 be amended to ensure equal access to marriage under the statute for all adult couples, irrespective of gender, who have a mutual commitment to a shared life.

I believe that elected representatives should seek to improve political debate and that public policy should be based on a reasoned approach. An argument could be made that in a modern, secular society religion and politics should be kept separate. Yet, if politics is a contest of values, we should not, as elected representatives, hide from those values that inform our convictions and, ultimately, our actions. It is important for us to be up-front about the values that inform our role as leaders in our community. I acknowledge that the values of many members of this house are informed by their convictions, religious or otherwise.

This bill is explicit in its scope. The bill does not seek to define marriage as an institution of the church. It is not our role in this place to do that. This bill seeks to reform marriage as an institution of the state. I believe that we have a responsibility to support legislation that will make our society more inclusive and tolerant. With this in mind, I ask: who is excluded in our society today and how can we create a context in which they will be excluded no longer?

There is little doubt that homosexual people still experience the pain of discrimination and the burden of social exclusion. This can manifest itself in real suffering for the individual, suffering which is unnecessary and can be reduced by the methodical removal of barriers to acceptance. Can you imagine how individuals in a same-sex relationship feel at the outset of their courtship knowing that, even if their relationship reached its ultimate potential, society would never recognise the depth of each person's commitment to each other.

We have the opportunity to remove such a barrier, and I see no good reason why we should not act. Today we have the opportunity to define an institution that has a critical social function. Together we can make a decision to validate marriage as an institution that demonstrates one adult's permanent commitment to another. The alternative is to allow the tides of history to continue to wash away its relevance to contemporary society. We have the opportunity now to decide what marriage should represent based on how marriage can serve to make our community stronger and enhance the happiness, wellbeing and security of those who decide to take that path. If we fail to address this inequality, we risk the unintended consequence that the institution of marriage will become less relevant to contemporary society.

So what is the potential social impact of passing this bill? The legal gap that separated de facto relationships and marriages is already diminishing. In 2007, the South Australian government passed a law recognising the rights of domestic partners in South Australia. These laws provide same-sex couples recognition in much the same way as opposite sex de facto couples. Gay and lesbian couples now have legal rights and duties in areas such as property ownership, wills, next of kin and disclosure of interests. The law applies to same-sex couples who live together as a couple on a genuine domestic basis for three or more years.

Before the law, couples involved in a registered de facto relationship are considered in much the same way as couples who are married. In practical terms, what evidence is there that this change will have adverse consequences for our society? Any existing economic or legal gap that separates the respective arrangements will no doubt one day be removed.

If we can enhance the wellbeing and happiness of some members of our community whilst not diminishing the lives of others, why would we not endorse such a position? If two adults feel that love and commitment that they share each to the other will be permanent and wish to undertake a commitment to do all within their power to protect the sanctity of that bond, it is our job to allow them to pursue that opportunity. I do not believe that it is our job as elected representatives to endorse a situation that deprives two consenting adults the opportunity to confirm and celebrate the permanence of their relationship.

To suggest that the changes we are calling for today will provide nothing more than an opportunity for empty symbolism is to misunderstand the power of symbolism. Indeed, the intrinsic purpose of marriage is all symbolism. It is the celebration of a commitment, of a union. It is the ultimate act of symbolism. The laws passed in 2007 provide same-sex couples recognition in much the same way as opposite sex de facto couples. The importance of marriage now lies in its symbolic value—and it is not empty symbolism: it is meaningful to those couples and their families who wish to celebrate their love and commitment to each other and their belief that this commitment will endure.

Without this reform, discrimination on the basis of sexual orientation will remain one of the few vestiges of discrimination that we are comfortable protecting. This diminishes rather than enhances the institution of marriage. It is a layer of discrimination that will be eventually removed and in Australian society, of, course we are faced with a number of critical issues that we must work tirelessly and urgently to resolve.

South Australians face many of the same difficulties as Australians who reside in other jurisdictions but in Australia today, as elected members of parliament, our focus needs to be on those critical issues of public policy and must also allow room for us to proceed with matters of this sort. There is no reason why this reform should distract other important work. I refer, of course, to the support for this particular measure that we have seen across the globe—Barack Obama and David Cameron. In passing this bill, we will enhance the happiness and wellbeing of many members of our community. Why would we not take that step?

Mr MARSHALL (Norwood—Leader of the Opposition) (10:42): I rise to speak on this bill and indicate that I will be the lead speaker for the opposition. It is our party room position that this will not be a conscience vote, for reasons which I will outline in my speech today.

On 20 June this year, the member for Port Adelaide tabled the Same Sex Marriage Bill 2013 in this house. The bill proposes to make the institution of marriage, a lawful union of two people to the exclusion of all others voluntarily entered into for life, available to same-sex couples. The law would apply to marriages solemnised here in South Australia and is not limited to marriages between South Australians.

Fifteen countries have legalised same-sex marriage, including three so far this year (France, New Zealand and Uruguay). Legislation legalising same-sex marriage in England and Wales passed Westminster parliament earlier this month. Same-sex marriage is now legal in 11 states in the United States of America.

Nevertheless, the weight of constitutional law opinion is that a law for same-sex marriage enacted by an Australian state would be likely to be held to be invalid on the ground of inconsistency with the commonwealth Marriage Act 1961. It is generally agreed that any such legislation would be subject to legal challenge.

I understand that the Tasmanian Law Reform Institute is currently assessing the options and likely cost of a High Court challenge to a state same-sex marriage law. On 6 December 2012, the social issues committee of the Legislative Council of the Parliament of New South Wales established an inquiry on issues relating to a proposed same-sex marriage law in New South Wales. The terms of reference were referred by the Premier (Hon. Barry O'Farrell). The key element of the terms of reference is to inquire into:

1. Any legal issues surrounding the passing of marriage laws at a State level, including but not limited to:

a. the impact of interaction of such law with the Commonwealth Marriage Act 1961

b. the rights of any party married under such a law in other States' and Federal jurisdiction

c. the rights of the parties married under such a law upon dissolution of the marriage;

This committee has received approximately 10,000 submissions and over 1,200 proforma letters, the largest number of submissions ever received by a committee of the New South Wales parliament. I understand that this committee is due to report in the coming days.

Like other states around Australia, we are not convinced that there is any evidence that the South Australian parliament has any authority to legislate in this area. The South Australian Liberal Party does not support the commonwealth attempting to legislate in the state's jurisdiction and we certainly do not support the state's attempt to legislate in the commonwealth jurisdiction. We are surprised that the Premier, as a lawyer, has chosen to ignore the overwhelming legal opinion on this matter. It will be interesting to see what the Attorney-General's contribution to this debate will be.

Of course, I make the point that, if compelling evidence is presented that states do have responsibility under this act, this would be a matter that would be referred back to our party room and we would reconsider this issue. However, until that occurs, the Liberal Party is resolute that this is a matter for the commonwealth, not a matter for the state and, consequently, the Liberal Party in South Australia will be opposing this bill.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (10:46): I rise to speak on the bill presented by the member for Port Adelaide: the Same Sex Marriage Bill 2013. The attempt by the member for Port Adelaide to formalise a personal relationship that is not currently within the definition of marriage is one which is supported in her second reading explanation with an expression of concern that she considers that the current definition of marriage is too narrow, that it is unfair and unjust, and that this is a matter to be remedied. She highlights her acknowledgement of the important relationship of a younger brother. All of these matters are heartfelt, I think, without question.

What is puzzling to me is why this presentation would then go on to claim that, as a forum, we are in a position of privilege—in fact, I think 'fortunate' was her description—to be able to remedy this inequity and that we would proceed to attend to the passage of her bill to do so. This is in the clear knowledge that, although she runs a short constitutional argument, which I think is along the lines that it is not unconstitutional to consider this, but the provision is one where it should not be excluded—I think she runs the argument that the legislation, and as subsequent cases support, is not unconstitutional, does not cover the field at the commonwealth level and, therefore, section 109 is read to enable this to occur. Even if that does not come to fruition, in her words, it is a matter then for the High Court to make a determination.

The Liberal Party's position, as outlined by the leader, is one where, on the weight of the substantial opinion to date, this is not a matter which we should put the taxpayers of South Australia to the expense, nor should we attempt to subvert the roles of each of the governments. It is a little bit like if the local government decided that they would get into the business of state government jurisdictions on the basis that they think that what we are doing is wrong and that they should pass a bill to deal with something in relation to public education, for example, and that, if it is wrong, 'Well, we will let the Supreme Court or superior court sort that out.'

That is the type of analogy that I think does not do service to the importance of the legislation that we are considering. For every member in this house, who would have received an avalanche of submissions across the spectrum in the lead-up to this type of debate—which it does attract, way before this bill, on any of these most important issues. It does not do the importance of this issue a service.

If there is a case to expand, develop and modernise the formality of the institution of marriage, whether it be in relation to whom it should be between, for the period that it should endure, the circumstances in which it should fail and which remedy or relief should be granted, or the relationship of the parties who are allowed to marry—all the aspects and elements of marriage that come under consideration if we were to fulfil a modernisation—then let that occur, and let it occur in a jurisdiction where there is a known recognised capacity for it to be able to dealt with unchallenged, namely, the federal parliament.

I do not profess to have, just by having a legal background, any greater wisdom than any other member of the house in relation to constitutional law, but there is a myriad of legislation and opinion. There are two current inquiries (one which is about to conclude) from Tasmania and New South Wales respectively into this issue. Yet, it appears at this point that the government, or at least the mover of this bill, is intent on pushing forward a vote on this bill which in my assertion should surely fail.

Perhaps that is the strategy, perhaps it is the tactic of the government to present this bill in the full knowledge that it will fail, and they are too scared to await the determination of the New South Wales inquiry, which is just a day away and which could provide either some fulsome support or confirm to the Australian Labor Party at the state level that they are simply on the wrong track.

The other aspect I wish to raise for the benefit of the parliament is that we have spent the last 110 years transferring the responsibility of marriage and matrimonial causes to the commonwealth. We did it at the beginning of the last century with the establishment, under the federal constitution, of giving them the direct responsibility of marriage, divorce and matrimonial causes and, if I can paraphrase, the issues which flowed on from that regarding children. At that time, there was not a legal recognition of persons who were living in de facto different-sex relationships, let alone one-sex relationships.

Over the years, we have transferred responsibility directly to the commonwealth, and this very parliament, this very government, has added to that transfer. In addition to the transfer of the exclusivity of marriage and divorce in the 1970s, there was the transfer in the 1980s of all children's disputes, irrespective of the marital status of their parents, and the confirmation that, at the federal level, the Family Law Act should adopt, address, embrace and make decisions in respect of sterilisation of children and/or those with a disability. These are the areas which have gone from state management to federal management and which have been supported, largely on a bipartisan basis, across the parliament.

Just in the last few years, after the state parliament of the 1990s dealt with the question of de facto relationships and property settlement, having noted of course that the child support issues had already been transferred to a federal agency, the issue of property settlement of heterosexual de facto couples, was dealt with in the Brown-Olsen era (in fact, I think the Hon. Trevor Griffin had been the mover of that legislation).

Recognition was given to relationships of de facto couples who cohabited for three years or more or had a child of that union so that they were eligible to be able to seek property relief in the event of termination of their relationship other than by death. These have been important initiatives. This very parliament, as slow as it might have been under the leadership of the attorney-general here in this place, now the member for Croydon, has actually transferred the responsibly—

Members interjecting:

Ms CHAPMAN: We were the last state to do it under his leadership. But, we transferred responsibility; we passed the Commonwealth Powers (De Facto Relationships) Act in 2009—

Mr Marshall: Finally.

Ms CHAPMAN: —finally—and it was proclaimed in 2010. So, we came kicking and screaming. Nevertheless, this parliament said, 'We recognise the importance that these issues be expanded in matrimonial cause, they be given recognition in the Family Law Act, they be dealt with under the same uniform jurisdiction and be given that status.' We passed that, and now those provisions are secure for consideration under the Family Law Act, and they have that status.

Marriage, divorce, children and property settlement of people who are either married under the Commonwealth Marriage Act or who have a recognised status of cohabitation, irrespective of whether they are one man and one woman, or two women, or two men, or those who are transgendered, if they are adults and they are cohabiting in a bona fide domestic relationship (what we now call a companion couple relationship), they will have the entitlement and access to the protection and benefits of a federal Family Court and the legislation that goes with it.

I think now that is a matter which, having aided and abetted the transfer to that federal level, even by this parliament, will not escape the attention of the High Court, if ever we are obliged to go through that process. It is not enough. As powerful, as persuasive and as important a public social issue as this should not be treated with disrespect. The way to deal with this is to present the argument to the doors of the federal parliament and ensure that they deal with this matter and that we not treat it with such disrespect as to place it in a voidable position.

Time expired.

Mrs REDMOND (Heysen) (10:56): It is my pleasure to rise to speak on this matter this morning. Can I say at the outset that I have been on the record for a very long time as being in favour of the recognition of same-sex marriage. However, I think that this parliament is cruelly deceiving the member for Port Adelaide in the way it is approaching this matter because, in my view, there is simply no question about the constitutional invalidity of the approach that is being taken.

Either the member for Port Adelaide has been railroaded into having this vote this morning or the very strong right of the Labor Party in this state, which favour the views of the DLP very largely (I have often heard the former attorney-general refer to Bob Santamaria of blessed memory), do not want this legislation passed for their own reasons. I think that the member for Port Adelaide is being cruelly deceived by her own side in the approach that is being taken to this matter.

As I say, I am very much in favour of the recognition of same-sex marriage, and I have had a number of conversations with a number of people in the federal parliament, my federal colleagues, and some of them at a senior level. Of course, I will not disclose to anyone the nature of those conversations; suffice to say that I have made very clear to very senior people my views about the recognition of same-sex marriage, and I believe that it will come.

But, from a constitutional perspective, can I say that I simply cannot see how this parliament can possibly be contemplating this particular piece of legislation. All that will happen is that it will be lost this morning, in all probability, but even if it were to be passed it would lead us into a quagmire of High Court challenges and discussions about something that clearly, to me, just has no basis.

I grabbed my son's copy of Australian Constitutional Law and Theory this morning just so that I would have a copy of the constitution in front of me. There is a quote at the beginning of it from Mr L.F. Crisp, who wrote Australian National Government in 1978, and I just want to remind people about our constitution. He says:

...no Damascus Road miracle about Australia's federal conversion. It took sixty years of spasmodic official effort and fluctuating public interest to bring the Commonwealth into being.

So, for 60 years, people discussed whether the various colonies should get together and form the commonwealth. Of course, you would all be aware, because we all wander the corridors here and have the photos on the wall, of one of the constitutional conventions held in 1897 in this very place to discuss the formation of Australia.

When they discussed it, they had to come to a lot of conclusions about how small states like South Australia were going to be validly represented in the Senate and so on, and how there was going to be an appropriate balance, and one of the things they considered was, what should go to the commonwealth and what should stay, and what model they should use. For instance, they looked at the Canadian constitution where, basically, all the residual power—that is, the state's retained certain powers but everything that was not specifically left with the state went to the central power. We went the other way; we went the way the Americans had gone and said that all the power that was going to be given to the commonwealth was specifically stated in the constitution.

Section 51 of the constitution gives particular power to certain things, and some of them are really obvious: defence, currency, trade and commerce, excise, customs, recognition of nationality, and national waters around our state waters. All those sorts of things, to me, were very obvious but, from the moment I started to study constitutional law as a teenager, it seemed to me that marriage had been an odd choice. But, nevertheless, it is very clearly stated and, without any shadow of doubt, it says in section 51 of the constitution—and, can I remind you that the constitution says that the commonwealth parliament is authorised to make laws—and I will quote from the section:

The parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to...

And then the various sections, and we go down to subsection (xxxix), and it lists all the different things, and at (xxi), it specifically says 'marriage' and at (xxii) 'divorce and matrimonial causes; in relation thereto, parental rights, and the custody and guardianship of infants'. But (xxi), in particular, says 'marriage' and no other words. So, there is no need for constitutional questions about this, and can I also point out that the commonwealth parliament, having passed that—and I remind you of the words, that the commonwealth is authorised:

...to make laws for the peace, order and good government of the Commonwealth with respect to: marriage.

Chief Justice Latham, in 1948, in a case called Bank of New South Wales v Commonwealth, said:

No form of words has been suggested which would give a wider power than the form of words 'with respect to'.

So, the chief justice, all those years ago, has already said that you cannot have a wider power than the power that has been given to the commonwealth with respect to this issue of marriage. Therein, I think, lies the dilemma for the people who support the member for Port Adelaide's proposition, because the reality is that if this parliament did pass something, which they call whatever, it is not marriage, and it is not, therefore, truly a recognition that I believe those who are in same-sex relationships, or want them recognised whether they are in them or not, actually want.

If you want it to be a recognition of marriage, then surely it has to be within the form of the commonwealth constitution. On that basis, I say that the Liberal Party is actually arguing from the most cogent position, and that is that there is no constitutional possibility of the validity of this law. The member for Bragg has already mentioned that there is a report to come down tomorrow from the New South Wales parliament, and by some contortionist act you may be able to get around it. If they came down with that view, then certainly we would be prepared to look at it, but why would we want to waste any money on High Court disputes when, in fact, I will remind you also that section 109 of the constitution specifically provides that, where there is a conflict between a state and a federal law, it is going to prevail in favour of the commonwealth.

So, there is just no possibility for this legislation (a) passing validly or (b) not being contested in the commonwealth in the High Court, at great expense to the people of this state. This government has already wasted enough money of the people of this state on frivolous issues over the 12 years that it has been in office. We do not need another one. I want to close by saying again, I absolutely support and endorse and want the federal government to legislate to recognise same-sex marriage in this country. I have long been on the record as being in favour of that, but I will not support this legislation which is nothing but an attempt to politicise something which cannot be decided by this parliament.

Mr PEDERICK (Hammond) (11:04): I rise today to speak to the Same Sex Marriage Bill 2013, and I note the speeches from this side of the house where we have decided that this is a party room vote and, on constitutional grounds, we will be voting against this bill. I must say, as a lad that has grown up attending the Uniting Church, and my father was a lay preacher for 60 years, if it was a conscience vote I would be voting against it as well. I will just put that on the record for the house, and that is certainly the message I have given my constituents and the leaders of the churches and others in my electorate.

In regards to the issue of whether this bill could become an act under the constitution, it is noted that in December 2012 the Social Issues Committee of the Legislative Council of the Parliament of New South Wales established and inquiry on issues relating to a proposed same-sex marriage law in New South Wales.

The key element of the terms of reference were to: inquire into any legal issues surrounding the passing of marriage laws at a state level, including but not limited to the impact of interaction of such law with the commonwealth Marriage Act 1961; the rights of any party married under such a law in other states and federal jurisdictions; and the rights of the parties married under such a law upon dissolution of the marriage.

It is certainly to be noted that this committee received an enormous approximately 10,000 submissions and over 1,200 proforma letters. In regards to the committee of the New South Wales parliament, this is the largest number of submissions ever received by a committee of that parliament. As has been mentioned, the committee is due to report tomorrow.

That is why our position is that enacting a bill of such questionable constitutional validity should not be supported because to do so would (1) commit scarce state taxpayers' money to defending a legal challenge in the High Court, (2) invite judicial involvement in an issue which is best resolved at political and parliamentary levels, and (3) display an expansionist approach to our jurisdiction similar to that—and it has been mentioned before—which we condemn in the commonwealth government and parliament in a range of domains.

I also note some legal advice in regards to another bill, but with many similarities, namely, the Marriage Equality Bill 2012 South Australia that was sent to various parties. I have had permission to use this advice. I just want to go through some of this legal advice. This is obviously the federal Marriage Act. The legal advice states:

The Marriage Act establishes the regime for dealing with marriage in Australia. Part I of the Act deals with preliminary matters. This part contains the definition of marriage...namely:

'Marriage means a union between a man and a woman to the exclusion of all others voluntarily entered into for life...'

Part I also contains sections 6, which provides that the Marriage Act does not exclude the operation of a law of a State or Territory in so far as that law relates to the registration of marriages...

Part 1A addresses marriage education, Part II the question marriageable age and the marriage of minors, Part III deals with void marriages and Part IV with the solemnisation of marriages in Australia. Part V addresses marriages of members of the Defence Force Overseas, Part VA with the recognition of foreign marriages. Section 88B(4) which is part of Part VA, adopts the Marriage Act definition of marriage in relation to the question of the recognition of foreign marriages. Section 88EA, which is also in Part VA, provides:

...a man and another man; or

a woman and another woman:

must not be recognised as a marriage in Australia.

Part VI deals with the legitimation of children by virtue of marriage of parents, Part VII with offences, Part VIII with transitional provisions and Part IX with miscellaneous matters. While it may be pointed out that s.88B does not seek to deal with State 'marriage' relationships, it is a fair observation to make that no such legal institution was in contemplation at the time because the States had acquiesced in the Commonwealth plenary exercise of power, (with the possible exception of Western Australia in certain limited and irrelevant circumstances).

9. It seems clear that the Marriage Act operates to create a code in relation to the institution of marriage in Australia. Indeed when the Marriage Act was introduced in Parliament in 1961, the then Attorney-General Sir Garfield Barwick said that the purpose of the legislation was to '...produce a marriage code suitable to present-day Australian needs'.

With regard to the validity of the bill, if this bill was passed into law—and as I said, this is in relation to the Marriage Equality Bill, but the parallels are directly there—there are two questions, and some of these have been raised today in relation to the validity of the bill if it were to be passed.

The first is the obvious one of an inconsistency between the Marriage Act and the Bill. The second is whether the interrelationship of the Commonwealth Constitution (Constitution) and the Constitution Act 1934 (SA) (SA Constitution) precludes South Australia from passing a law that applies the term marriage to any relationship other than that of a man and a woman for life to the exclusion of all others. With regard to the commentary from the legal advice and section 109 of the constitution, it states:

When a law of a State is inconsistent with the law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

That is stated, clear and direct. Invalidity in the context of s.109 means that the state law is rendered inoperative as long as the commonwealth law is effective. If the commonwealth law were to be repealed then the state law would revive.

There are two tests which the High Court has developed in order to determine whether a state law is inconsistent with a commonwealth law. The first is whether there is a direct inconsistency between the laws. The second is whether the commonwealth law evinces an intention to 'cover the field' and so an indirect inconsistency is created. For section 109 to come into play, there must be a valid law enacted by both the commonwealth and state parliaments. If one or either law is otherwise invalid there is no need for there to be recourse to section 109.

There can be no doubt that the Marriage Act (including the amendment made by the Marriage Amendment Act 2004) is a valid enactment of the commonwealth parliament. If the second argument referred to above is correct, then the bill, if enacted, would not be a valid enactment of the state parliament. That argument is currently untested. The issue with section 109 is based on the assumption that the bill, if enacted, would be a valid exercise of the power of the South Australian parliament. This legal advice goes through various debates and various cases about whether that validity would exist.

In the remaining small amount of time I want to note that in this legal advice, there is some advice about the incongruity with respect to maintenance and property division which would cause quite a number of problems with the Family Court jurisdiction and how this would convey in conjunction with South Australian law. In winding up, I just want to note that the learned lawyers who have given this advice state in their conclusion:

We conclude that for the reasons given above the Bill, if passed, is likely to be unconstitutional and invalid.

Mr PENGILLY (Finniss) (11:14): I would also like to enter this debate on the bill introduced by the member for Port Adelaide. Let me indicate that I firmly support the views of my party on this matter and, indeed, if it was a conscience vote, I would be voting opposed to the bill anyway. I do not believe that it is appropriate that this degree of social re-engineering should be brought into the state parliament. I respect the right of any member to try to socially re-engineer through the chamber of this parliament, but I do not agree with this bill.

Let me say that I have spoken to numerous people on this. I have had lots of input from the constituents in my electorate. Almost to a person, they oppose this legislation. Indeed, in the last 24 hours, my email system has been inundated with people contacting me from everywhere regarding this matter as, I am sure, have other members.

On 6 August, my wife and I will have been married for 36 years. We have brought three children into the world. I firmly believe that children need a father and a mother, and nothing will dissuade me from that view.

This issue is to do with marriage of same-sex couples. I have absolutely no problem with males living with males or females living with females, if they wish to do that—that has never been an issue with me. I do not necessarily take to the idea, but I respect their right to do so, if need be. However, let me also say that far more important things that should be discussed in this chamber, in my view, are the impacts on families particularly of the cost of living across Australia, South Australia and in my electorate.

An honourable member: Let's vote on it. Sit down then.

The DEPUTY SPEAKER: Order!

Mr PENGILLY: Thank you. My view is that those issues far outweigh the need for us to be spending time on this debate this morning. Let me turn to a very brave young man called Anthony Caggiano. Anthony Caggiano is a journalist for the Victor Times, down in Victor Harbor. I will just read out what he wrote in a recent article. He is a very brave young man. In The Times, on Thursday 6 June this year, he wrote, 'Damn straight, we are queer.'

I strongly support Anthony. I support his views. He is a very brave man. He wrote some other material which I will refer to shortly. I am able to have a very up-front and frank discussion with Anthony on almost any subject at any given time. He is like he is. I have a member of my extended family who is the same as Anthony—that is how people are. We are all how we are and you are not going to change that.

I reject the suggestion that the state can interfere with the Marriage Act, which is a federal act. I am disappointed because, with a day to go of New South Wales proceedings, as I think the member for Bragg indicated, we might have had a little bit more information on this matter, but I am also pleased that, if we do have to debate this matter today, it will be put to the vote, and I am very hopeful that it will not get up, quite frankly. That is up to the members of the house: it is not up to the member for Finniss.

Getting back to Mr Caggiano, he also says in an editorial he wrote on 6 June 2012, 'We are on the right track, we were born this way.' I got some further information from him. I was interested to know the number of gay people in my electorate. He was the ideal person to ask about this. He works for The Times at Victor Harbor, but he has also done time with The Islander on Kangaroo Island. He thinks that there are about 100 people who he refers to as 'gay' people in the electorate of Finniss.

I respect his views on that. He is a sound thinker. He says that, almost unanimously, those in a couple relationship between female and female or male on male desire to be able to get married. He knows my view and respects my view and I respect his, but the fact is that I will not change my view. I never will change my view. I was brought up with a father and mother in a Christian family which was also a loving family and that is just the way I am. I am not easily changed on matters normally and this is no different to a number of other matters.

At the risk of repeating myself, I do respect the rights of these people; however, I do not believe that what is being proposed by the member for Port Adelaide is applicable. I believe very, very firmly that marriage is between a man and a woman and, until such time as the nation changes its mind—if indeed it does at some stage and it is legislated by the commonwealth; I will accept that at the time—I will never change my personal view. I will listen with interest. We have only had a couple of speakers from the other side and I know there are other speakers on this side who wish to speak.

This is an issue that particularly the print media seems to have picked up on in this state and across the nation. I do not believe that there is a fair and equitable debate going on regarding this matter. We seem to be inundated with those who wish for same-sex marriage to be put into legislation and there seems to be an overwhelming campaign by the media to try to orchestrate that. At the end of the day, the media do not get a vote in this chamber, nor do they get a vote in the federal chamber, or any other state for that matter. So you have to stick by your beliefs and you have to stick by the messages you receive from those who are for or against any particular subject, in this case the bill put up by the member for Port Adelaide.

I listened with interest to the member for Port Adelaide when she spoke on this matter some weeks ago. I listened to what she said and I can understand her views; I just do not happen to agree with her. I listened to the Premier this morning. I have listened to lawyers. I am not a lawyer, I have never been a lawyer, and I never will be a lawyer—

Members interjecting:

Mr PENGILLY: I am a humble farmer—but I also am entitled to stand up in this chamber and protest loudly against the social re-engineering attempts by, in this case, this particular bill and also others that are on the Notice Paper that will come up in due course. I do not agree with it and I never will agree with it, but I thank you, sir, for the opportunity to speak on the matter.

Mr VENNING (Schubert) (11:22): In my time here these are the sorts of bills that I usually do not speak on. I have never spoken on euthanasia and I have never spoken on prostitution and I was not going to speak on this, but I will. I enter this debate very cautiously. I fully endorse and support the position taken by my party (the Liberal Party) on this matter. I totally agree that this should not be a decision made by this parliament, by this legislature. It flies in the face of the rules that were laid down under the federal constitution, so I do not really know what the point is. Even though I have a lot of time and respect for the member for Port Adelaide, I just wonder what this exercise is all about.

I personally would never support two people of the same sex having a union that is called a marriage. I have no problem with the union, but I would not support it being called a marriage. I have very strong views on this. Of the three issues before this parliament today—that is, euthanasia, prostitution and this—this is the one I am most opposed to, absolutely, because I think the family is the base of our community. It has been the base of our lives, and I think this is a real challenge to that.

I have very good friends who are openly and proudly gay. I appreciate them and their relationship. As you have heard this morning, there are members here with family who are gay, and I understand that the member for Port Adelaide has made that point. The same goes for me, and I appreciate that very much. I have no problem with these people having the same legal rights as married couples. That was always the argument when it was first brought here many years ago. I do not have any problem at all with these people having the same legal rights as married couples.

I am happy to recognise the union with a name called something else—say, call it a civil union—even though I would not encourage it, but that is certainly a lot more palatable to me than the word 'marriage'. After all, we must come down to the basics, without being crude: all of us are here because a man and a woman had a union, and it is the only thing that works.

I feel very sorry for children being brought up today; it is tough enough, but the pressures on children in same-sex marriages I am sure would be very difficult. I know a lot of the children are going to be better off in these homes because with ordinary mothers and fathers there are some pretty difficult relationships, I know, and it is a generalisation I should not make. Usually, a child with a mother and a father has a better chance, I think, everything else being considered—

The Hon. C.C. Fox interjecting:

Mr VENNING: I understand, minister. Can I say, your little Theo is the happiest fellow. He has the loveliest mother and he is very lucky to have you. I think every child has a right to have a mother and a father.

The Hon. C.C. Fox interjecting:

Mr VENNING: But there are exceptions, which are highlighted by you, where it does not happen. I thank all those who have come and seen me on this issue. This has been a huge issue. For anyone who wished to see me on this, I made the time—and there have been many of them. The quantity of mail, correspondence and phone calls has been huge. Again, the Lutheran Church has been my rock, my wisdom and my strength, and I am not going to budge. I have had much good advice and many good arguments put to me by the Lutheran pastors in my electorate and I would not go past that. I thank them all very much for their support and confidence in me to stand here and say, no, we would not support this.

I wonder where this will finish. This will not pass today, I am fairly sure. I have heard what my colleagues have had to say, and I have heard what the government members have had to say. I am just curious to know why there were only one or two speakers from that side. I wonder whether the others are going to stand up. Anyway, that is my view. Again, I never intended to speak on this bill, but can I say I hope the parliament will defeat it and leave these decisions for those in Canberra.

Mr PEGLER (Mount Gambier) (11:27): I would say from the outset that I am not against the union and commitment of people of the same sex, and I certainly have no prejudice based on sexual orientation of people. The problem I do have with this bill is that I feel that the bill, if passed, is likely to be invalid within the meaning of section 109 of the constitution. Section 109 of the constitution states:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Invalidity in the context of section 109 means that the state law is rendered inoperative as long as the commonwealth law is effective. If the commonwealth law were to be repealed, then the state law would revive. There are two tests which the High Court has developed in order to determine whether a state law is inconsistent with a commonwealth law: the first is whether there is a direct inconsistency between the laws; the second is whether the commonwealth law evinces an intention to cover the field and so an indirect inconsistency is created.

For section 109 to come into play, there must be a valid law enacted by both the commonwealth and state parliaments. If one or either law is otherwise invalid, there is no need for there to be recourse to section 109. There can be no doubt that the Marriage Act, including the amendment made by the Marriage Amendment Act 2004, is a valid enactment of the commonwealth parliament. I feel that this bill, if enacted, would not be a valid enactment of the state parliament. If we do pass this bill, I am sure that it will be challenged. It will be challenged at great cost to the taxpayers of this state and the end result will probably be that the bill will be thrown out.

I believe that a federal referendum under section 128 of the constitution is the proper and safe course to advance such a legislative and social change of great importance to large sections of our community. I consider this to be so, since any other course would be overshadowed by the uncertainty of outcomes pending challenge. That would be an undesirable legislative and social outcome. The referendum is the mechanism laid down by the constitution to test the will of the people and provide certainty on such issues, particularly when such a code as the Marriage Act has been in force for over 40 years and the institution of marriage has been assumed to have the same form since times preceding federation. So, I will be voting against this bill.

The Hon. M.F. O'BRIEN (Napier—Minister for Finance, Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (11:31): I rise to speak in support of the marriage equality bill before the parliament. Consider for a moment a world which is much like our own, except for one major difference: marriage is defined as the union of two people with blue eyes, to the exclusion of all others. If you have the misfortune to be born with brown, green or any other colour then you are prevented from marrying another person, no matter what their eye colour. The law permits no exemptions.

Suppose that the disciples of this blue-only arrangement furnish their argument by pointing to long-standing legal precedents: 'This is the way that we have effectively always done it. This is a social basis upon which our society is structured. Marriage is between two blue-eyed people. There is nothing that effectively can be done about it.' I think we would scorn a proposition like that because it discriminates against people for no good reason. It is a law that punishes innate biological characteristics and falsely links eye colour with moral character. Furthermore, it enters the state into a realm where it has no business.

Excusing this simplification that I use by way of example, what are the practical differences between the exclusion of non-blues from marriage and the continued prescription of gay and lesbian people? Both lean heavily on the brittle precedent of history. Proponents of heterosexual marriage point to the scriptures to embellish their argument, but such a strategy does wither under the glare of scrutiny. Enlightened societies look to the impartial precepts of science and reason to make laws and decide what is right. Science, logic and philosophical reason are the ammunition of our political battles.

I believe it is wrong to deny same-sex couples the right to marriage. The extension of that right is not only morally defensible but it is also socially responsible. We should encourage any attempt to broaden the scope of marriage, because it is an institution which strengthens the bonds of our mutual obligations and promotes values we like to see upheld in our society. It is obvious that stable, committed, monogamous relationships do exist outside of marriage. Nevertheless, marriage occupies a unique place within our society. It is known as a commitment device. It legally joins a couple, while also binding families and communities. On average, those who are married are happier, healthier and more prosperous than their unmarried counterparts. To deny same-sex couples access to those numerous social and psychological benefits, as well as the substantial financial inducements to marriage, misses an opportunity to strengthen a public good.

I would also like to examine the economic dimensions of this debate in greater depth. As women have gained greater access to the job market and greater control over their own fertility, the opportunity cost of having a spouse stay at home, out of public life, has dramatically increased. Marriage relies less and less on the traditional breadwinner-homemaker dichotomy. Instead, we are now more likely to search for a soul mate with whom we share interests, preferences and beliefs.

Modern marriage is no longer the handmaiden of biological caprice. It is no coincidence, so writes Justin Wolfers for Bloomberg, that many of the opponents of same-sex marriage are also opponents of the ongoing shift to marriages of equality. Individuals, especially women, will continue to command greater wages outside of the home. The cost of staying at home will continue to rise.

Research has yielded evidence that there would be very real economic benefits to South Australia adopting marriage equality. Professor Lee Badgett of the University of Massachusetts has estimated that if a state like South Australia became the first state to allow same-sex marriage, its economy could benefit to the tune of at least $96 million, with most of this going to small business. I think we are very much aware of the economic benefits of attracting the 'gay dollar'.

There was also a substantial body of work done by Richard Florida who looked at the most vibrant cities around the world and was able to draw a direct link or correlation between the prosperity of those cities and the fact that they had very high concentrations of gay people. So, this proposition is not to be dismissed.

In this way, one clear argument in favour of this bill is a utilitarian one: extending the right to marry to same-sex couples will yield substantial social gains. It will strengthen our economy, and offer all same-sex couples the right to choose whether marriage is the appropriate expression of their love while the institution—although it is under a bit of stress—is given a firm jolt in the right direction, as far as I am concerned.

Now I would like to turn my attention to the legal and moral deficiencies of the status quo. John Stuart Mill, the 19th century philosopher of English libertarianism—and this should be of interest to the other side of the house—advanced a crucible of contemporary political thought: the harm principle. This idea effectively states that individuals should not be constrained from the pursuit of any endeavour they choose, up to the point of inflicting harm on others.

Failing to extend the right to marriage denies same-sex couples the chance to formalise their commitment to one another and renders them second-class citizens before the law. It signals that the political community deems an entire class of relationship unworthy of the respect and recognition afforded to heterosexual marriage. In doing so, it inflicts an unwarranted and indefensible harm.

The liberal project commenced by John Stuart Mill aspires to the construction of a state which fights for the needs of the deprived and, where applicable, does not interfere in the wishes of individual. As long as there is injustice which can be alleviated through political means, then there is a need for a strong state and intervention. That does not mean that an inequity levied by the state itself should be allowed to stand; on the contrary, it becomes incumbent on political actors to correct for obvious defects of the law.

Throughout history, each generation has expanded the freedoms won by their parents and grandparents. The extension of rights to the greatest number is animated by that same ideal. Our political process has allowed us to work at a steady pace to remove the impediments to the realisation of the equality of all men and women. Opposition to marriage equality is the next great barrier which we must collectively hurdle.

The shadow attorney-general has justified his party's refusal to support marriage equality by explaining that 'marriage is the domain of the federal parliament, so our party'—the Liberal opposition—'will not be supporting laws we don't think the parliament has the power to make'. This is a misreading of the interaction of state and federal laws, and I know it has been dealt with at length by speakers on the other side of the house.

It is true that where there is an inconsistency in a concurrently administered law, the commonwealth prevails to the extent of the inconsistency as per section 109 of the constitution, but this is no barrier to this parliament passing the marriage equality bill. In order for this bill to be inconsistent with the commonwealth Marriage Act within the meaning of section 109, it would need to purport to do the same thing. Whether that means that is unconstitutional or inoperable is a judgement which will ultimately fall to the High Court in the event of a challenge. The court would then determine the scope of the commonwealth Marriage Act, whether it comes before and at the expense of any state marriage laws or whether it can exist alongside the state laws.

In the words of Professor George Williams, the constitutional law expert who advised the drafting of this bill, South Australia would be 'doing a great service to the nation' by becoming the first state in Australia to pass such legislation and subjecting the federal act to legal scrutiny. Our parliament has the authority to pass the marriage equality bill. Objecting to the passage of this bill by taking refuge behind jurisprudence which is yet to be created dodges our duty to debate social issues on behalf of South Australians. If we value this chamber, the ideas which it embodies and the people it represents, then I urge my colleagues in this chamber and on the other side of the house in particular to not hide behind such a thin facade.

Time expired.

Mr HAMILTON-SMITH (Waite) (11:41): I indicate that I will be opposing the bill. I commend the member for Port Adelaide for bringing it before the house. I know that she genuinely believes in the bill, and there is no right and wrong position on this bill. It is a value judgement. It has to do with what each of us, in our hearts, believes. No-one is right and no-one is wrong, but I will be encouraging every member of this house to please vote against this bill, because I do not think it is going to make South Australia or Australia or our community a better place.

The fundamental proposition in the bill and what we are being asked to accept by the proponents of this measure—and it is reflected in the language of the bill when people talk about marriage equality, discrimination and difficulties the gay community may experience with acceptance and so on in the broader community—is that if we do not accept the bill, then we do not like gay people. If we do not accept the bill, we are somehow opposed to gay lifestyles and gay relationships. The proposition is that if we do not accept the bill, we have got a problem with homosexuality. I completely reject that proposition. I completely reject that argument—it is wrong.

There are many groups in our community—there are those who support gay marriage and support gay communities and who are gay themselves, and good for them. There are those who, because of their core fundamental beliefs, think that homosexual relationships are wrong and that they do not like their relationships and think they are immoral. I am not one of those people, but there are people who have that view and they are entitled to it. But, there is a much broader group in the middle, and I think I am part of that group. We accept gay relationships, we have many gay friends, we value their relationships, we see they are deep, meaningful and committed relationships, but we do not believe they are marriages or that they should be marriages. We believe they are different to heterosexual marriages and marriages as we have understood them for centuries.

We can accept gay relationships and gay people and not accept this bill. I think that is the mainstream of South Australia and the mainstream of Australia. I would say to people, I think the vast majority of South Australians are completely accepting of gay relationships and gay people, and I am certainly one of them, but I do not think, personally, they would support this bill if they understood its full implications. For that reason, I encourage every member to oppose it.

What is marriage about? Yes, it is about acceptance and recognition of your relationship, but it is also about love, property and children. I have not heard much in debate about children, property and love. I have heard a lot about acceptance and recognition. To me the principal concern about this bill is the impact it will have on children and on family relationships, and I will explain why.

We all have a responsibility to build and support families and family relationships. We have a responsibility to make this community which we live in stronger and better in every act that we perform. I cannot see how this bill will do that. I know members believe passionately in the bill and there is no doubt in my mind about the strength and character of many gay relationships or of heterosexual relationships, but I think this bill, if it were to pass, would open problems going forward which are not going to help community cohesion.

As I mentioned, this is about everyone's core values, and everyone's fundamental beliefs. There is no right or wrong answer. I just want to latch onto a few issues in arguing against this bill. First of all this demonising of faith, and this argument that if you are a Christian or if you have religious principles then you are wrong, you are old fashioned, that is unacceptable, and you are not part of the modern world because you have faith. I completely reject that proposition—I completely and utterly reject it—and those who would criticise the churches of Christian faith or of Islamic faith or of any faith because they oppose this measure, because they are somehow characterised as being old fashioned, out of date or part of ancient history, are completely and utterly wrong.

If anything, I would appeal to churches of any faith or denomination to be more vocal on this issue. Silence is the enemy. Get out there and express your view as the advocates for the case are expressing their view. There are many people who may not have a religious conviction who would oppose this measure anyway, based on their fundamental core values and their sense of what is right and what is wrong, and what is good for the community going forward.

I have talked to a lot of gay people about it, many of whom are close friends of mine by the way, and I will not, as other members have, regale the house with various stories about very close friends from the gay community whom I have had over many decades because I could have everyone in stitches because they are jolly good fun and very good pals of mine. I think this is actually a bit of a fringe issue in the gay community. I do not think most gay people are really passionately convinced that they want this.

I think that there is a group within the gay community who want it passionately; there is another group within the gay community who think that it would be a good thing if it came in and they would like the benefits of it; and there is another group within the gay community, many of them in de facto relationships who frankly just do not care, as there are in the heterosexual community a large group of people in de facto relationships do not care about getting married. I think this is a fringe issue being pushed by a group who want to see it put in place as a matter of principle. I do not think even the gay community is united in its support for this measure. If they want to be welcomed to the divorce courts and the property settlements and all those sorts of things, then good on, because marriages are not perfect, but I think that is the case.

I think a principal reason for opposing this bill has to do with children. I happen to have an eight year old. For those of you who have young kids, it is hard enough trying to explain to them how the world works as it is, but I am firmly of the view that every child has a right to a mother and a father. I think they need to know who is their mother and who is their father. I know that that is not always the case, but I think where possible we should try to do that. I cannot see how you can support this bill and then oppose same-sex adoptions, same-sex IVF, and full rights and privileges with regard to parenting to same-sex relationships, you just cannot do it. I think a fundamental weakness of the bill is clause 8 which says that nothing in this part:

...imposes an obligation on an authorised celebrant being a minister of religion to solemnise any same sex marriage.

What you will do is open a Pandora's box. What the bill is saying is we want the law to recognise same-sex marriages as completely equal but we will not require ministers of religion to marry same-sex couples. Why? Because we do not want to pick a fight with the church.

I know exactly what will happen—and what has happened with so many bills I have seen in the 17 or 18 years that I have been here—we will pass this one and, in a year's time, somebody will be introducing an antidiscrimination law that says we should criminalise ministers of religion or celebrants who are refusing to marry same-sex couples because we have accepted that they are completely equal.

You are either completely equal or you are not. If we are going to consider this measure, we must make same-sex couples completely equal. If we are going to do that, the argument would follow that it would be illegal for anyone to refuse to marry them, it would be illegal for anyone to discriminate against them in any way—in regard to children, in regard to adoptions, in regard to IVF. That is where it will end.

Ten years ago, we were in here discussing a similar measure to enable property rights and certain other privileges for same-sex relations, and I heard members get up and say that we would never be arguing for same-sex marriage—here we are. And that is what will happen: the discrimination laws will come in, we will pick a fight with the churches, with the Islamic community, with various other groups in the community, and it will create more problems for the gay community rather than solve problems, and with the very best of intentions it will simply make things worse.

I do not think this bill, if it were to be passed, would make our society more cohesive, more cogent, more coordinated, stronger. I think it will only lead to further argument, further dispute and further division. I encourage members to have the courage of their convictions on this issue. I say to the house that I think we all accept gay relationships, I think we all accept de facto relationships, whether they are gay or heterosexual. I think we are embracing and accepting of the gay community. I do not think there is a problem that needs fixing, and for that reason I would urge all members to vote against the measure.

The Hon. R.B. SUCH (Fisher) (11:51): My own personal view is support for this measure. My reluctance at this stage in casting a vote is because I am in the process of asking my electors what they want in respect of this bill. I would remind members that we are not in here to impose our view one way or the other on any issue: we are in here to represent our electorate. It is very easy these days to ask your electorate what their view is on a particular issue. I have done it with voluntary euthanasia, and I have asked questions about a range of issues. People might say that you will not get everyone responding. That is true, but you will get an indication.

In the past I have asked some questions that were not precisely related to this bill, because it did not exist, but one of them was words to the effect of whether same-sex couples should be able to use the term 'marriage' as an indication of the state of their relationship. At that time, most of those who replied indicated that they did not support that. I also asked about whether same-sex couples should be able to adopt. Once again, the responses in the main were negative. There were about 3,000 respondents out of a potential 23,000, so you cannot say absolutely that their views on those issues accurately represented the views of the people in the electorate.

We are in here to represent what our electors want. We are not in here for the Bob Such crusade, or anyone else's crusade. We are here to reflect and represent what the people want, and that is why I have considerable concern with the so-called conscience vote. The conscience vote should be abbreviated to the 'con vote' because every matter we are voting on should relate to our conscience. Unemployed people, homeless people—is that a matter for conscience? Of course it is, every issue is. The conscience vote is really a safety valve for political parties; that is what it is about. It denies people in a particular electorate the opportunity to have their representative express a view on their behalf. I think the so-called conscience vote is actually a con vote because it does not get to the heart of what we are really about in here.

In terms of the actual bill, I am a great supporter of equal opportunity and equal rights. I have before the house a bill on civil partnerships which I have been asked to bring in here by people who are already, in this particular case, in a lesbian relationship. They asked whether I could bring in a bill that would deal with the issue of civil partnerships. Those women, ironically, live in another electorate, and they keep asking me when the parliament is going to deal with this issue. Some say, 'You are doing it because it is a fallback; it is an easy way out of this issue.' No, I am doing it because people have asked me to do it, to raise it in parliament. It is still on the Notice Paper, so if people feel strongly about the issue of civil partnerships they can support that bill in due course.

I think it is important to remind ourselves that the term 'marriage' is not owned by any section of the community. It is not owned by a church or churches, or a secular group. It is really a reflection of a commitment made between two people in a personal relationship. That is what it is about: it is a commitment, and the law backs up that commitment. Some people have suggested that you cannot have same-sex marriage because of the impact it could have on children. The research evidence shows that there is no negative impact on children whose parents or guardians, whatever you want to call them, are in a same-sex relationship. The research evidence does not support that.

I was on the committee when many lesbians (I think they were all lesbians who came in) who had adopted or who had been through an IVF process brought their children into the parliament so that we could meet them. I thought there was a touch of irony there because many of the lesbian parents or partners had sons, and I think some people would say that was a bit ironic. They said, 'We are not radical feminists. We want our child we have had through IVF at great expense to have male role models.' They said in evidence that when they tried to give their son female-type toys, the young lad threw them out of the pusher, or wherever, and wanted to play with trucks, which is pretty normal for a young boy.

I think the argument that this is the thin edge of the wedge and that we will be bringing up children in unhealthy arrangements does not stack up; there is no evidence to back that up. Those particular parents said, 'We make sure the child has male role models.' Many of these people are involved and active in their various churches, and they said, 'We make sure that our child has male role models.' I think the argument that, once again, this is the slippery slope and that you will end up with people of the same sex rearing children in an unhealthy environment has no evidence to back it up at all; if it exists, I would like to see it, but I have looked at the research and it does not support that.

The issue then comes down to whether people should be treated equally in regard to a commitment they want to make to someone, whether or not they are of the same sex. I do not see any justification for discriminating against people on the basis of marriage. All the arguments we hear are the same sorts of arguments we have heard and were heard in the past about women—if you let women into the workforce it will be the end of civilisation, or if you get rid of slavery it will be a terrible thing.

The same old conservative arguments are trotted out—that it is the thin edge of the wedge and that it will be the end of civilisation as we know it. A lot of the opposition comes from people who have a religious view. I respect that but, as I said earlier, I do not believe marriage belongs to a particular religion, secular group or whatever. It is an indication of a commitment that should be available to those in the community who want it.

I understand this is not going to be taken to a division today. It will be dealt with on the voices. I think that is appropriate. As I say, I do not want to be forced into a position where we are dividing because it would be improper, given that I am asking my people next week and they will get the printed material next week. I am asking them specifically about this bill and some other things. It would be quite improper if I predetermine what they have got to say by voting today.

My personal support is for same-sex marriage. It will happen one day. I think the constitutional argument is a bit of a red herring because, as we saw with serious and organised crime, even the bikies will challenge in the High Court if necessary. You could argue I am not a constitutional lawyer, but I think that this is a subset of the commonwealth's power in terms of marriage, so it probably would be a good thing if it was tested in a court. On my amateur reading of it, I do not believe it would automatically be overruled by the High Court. So, I support it personally but I am not voting today because I am waiting to hear back from my constituents.

The SPEAKER: Thank you for the vibe. The member for Newland.

The Hon. T.R. KENYON (Newland—Minister for Manufacturing, Innovation and Trade, Minister for Small Business) (12:01): So, we have got the vibe and the constitution, sir. I was waiting for the third in that troika.

The Hon. C.C. Fox: Where is Mabo?

The Hon. T.R. KENYON: The member for Bright walks past asking, 'Where is Mabo?' I rise opposing the bill, unsurprisingly to most of you in this house, I suspect. I oppose it not because of constitutionality issues, although I suspect they are correct in that it will not be ruled constitutional. I rise to oppose it because of my beliefs about what marriage is and what it should remain.

I say it with a deep respect for both sides of this argument because these are passionately held beliefs with a genuine will to do good—a genuine will on both sides of this argument to do good, to improve our society. We have a dispute about what is, in fact, a way to improve our society, but there is a genuine will on all sides of this debate to do good for all of us, and I respect that.

Marriage is longstanding in our community, well past the establishment of Christianity and well past the establishment of any organised religion, I suspect, in any meaningful way, certainly in any organised religion that still remains. My understanding of the derivation of the word 'marriage' is that it came about from a recognition of the relationship between men and women. In fact, they are so intricately linked in this recognition of the relationship between men and women.

For me, that is the crux. The institution of marriage, the institution of the relationship between men and women, is a longstanding social institution. For me, the only real difference between the class of same-sex relationships and the class of traditional relationships between men and women, particularly married women and men, is the ability to have children. I understand that that is not something that all married people can do—I understand that. I understand that many children are brought up by excellent parents, some of whom I know, who are not married. It is not about that: it is about the ideal.

There is plenty of research that shows that the best environment for children to be raised is in a loving relationship between a man and a woman. We cannot always provide that and just because you do not provide it does not mean that you are raising children badly or that it is not a good environment for them—in fact, the opposite is true—but the ideal remains. In my world, we should be striving for ideals. I have always strived for ideals and we should be striving for ideals, recognising that we will often not meet them, but we should be working towards them all the time.

We recognise that having children, raising children within this traditional relationship of men and women, has been good for society. It has helped build society. So often, the only thing people have to fall back on is their family. It is what has provided a nourishing environment for so many people to be raised in, so that they go out and do good for those around them. It teaches them that a group of people is more important than an individual in many ways and that the good of individuals is served by the relationships we live in and the way we live with other people. We are not a series of individuals who live in the same geographic space. I reject that idea utterly.

I do not agree with Margaret Thatcher, for instance, that society is dead. I think that is rubbish. I think society is good. Society should be nurtured. The building block of that society is a traditional relationship between men and women raising children. Again, it is not always what happens but it is the ideal.

I think it is well within the rights of society to say that this traditional relationship between men and women is of such importance and of such good for our society that it should be recognised as a special relationship in its own right, which is what it currently does. I do not think that a refusal to ascribe that status to other relationships is a discrimination. In its pure form it is, but I do not think it is a negative discrimination. I think it actually builds up a relationship and an institution that has improved and contributed to society.

There is some discussion that the state should withdraw entirely from the idea of defining what marriage is, that it should argue that it is not for the state to do that. If we look at the weakening down over time of the nation states' recognition of marriage and the way it can be dissolved, and everything else, there is a lot of rational argument behind it. However, in the end, I have come to the conclusion that that is not a view I support. For me, there is a higher level of meaning to marriage. It is a sacrament for me. It is an important part of my faith. The good provided to society by marriage between men and women is such that it should be recognised by the state.

The last thing I would like to say on this matter agrees with the member for Waite in a way. I reject charges of homophobia because I do not agree with gay marriage. I am not going to detail my relationships or anything else, but I think it would be fair to say that those who know me would also reject that charge, if it were made against me. With those words, I will be voting against this bill. I will vote against it because of what I believe in, not because of some legalistic argument. I urge other members to give it full consideration.

Mr GRIFFITHS (Goyder) (12:07): There is no doubt that this is a very important day for the parliament. It proves to me that democracy still works, because this is an opportunity for people to stand up and talk about not only what consultation they have had but what they believe in their heart. There is no doubt about that. I respect the fact that this bill is introduced on the basis of total belief in it. I have listened to the member for Port Adelaide. I have listened to her comments on radio and I understand the reason why she has introduced this bill.

I would like to think that we have all been contacted by people. In here, the opposition holds a party perspective on it, too, but there has been some consultation within the media on what our position is. We come in here having talked to many people. It has been a very strong topic of discussion in my local community. Like others, I have received a lot of emails and correspondence about it. I have spoken to many people about this matter over the years and it is one of the key defining issues.

Even if it were not a conscience issue, I would vote on what I believe in because, for me, it is a defining principle. I will not support the bill on that basis. To me, marriage is a term to be used solely for a relationship between a man and a woman. I am respectful of loving relationships, and that is how I term it; not same sex, but a loving relationship. I respect that there needs to be some form of legal recognition of the union created between those loving relationships, but I can only accept the term of marriage being used for a relationship between a man and a woman.

I hope others judge me on the fact that I am a person who listens to debates, is prepared to engage in conversations about things, accepts people's concerns, changes my position based on good advice that has been put to me and is tempered against all these issues to try to form a position. In every role that a member of parliament undertakes, we try to listen to all these things to form a position. Politics interfere sometimes in these things. This is purely a conscience vote, I believe, for the Labor members, and I respect that, and for me it was always going to be a conscience issue, no matter what, so I am grateful that the party position supports the view I hold.

When Lainie Anderson from the Sunday Mail contacted people, there was a bit of to-ing and fro-ing between Lainie and me and, for me, it came down to words and the choice of words. I said to her, 'You have to understand the type of person I am. I am a process-driven person and every word is important to me. They all have a particular influence and can change a position and I will not change on it.'

I did not grow up in an overly religious family but I have grown up in a situation where my parents divorced at a very young age so I am not impacted by that. I was challenged, I felt, for much of my life by not having that male influence around me but I have compensated for that, I hope, with my own kids. My son celebrates his 24th birthday today. I hope my children get married, and they are in loving relationships.

For my son and daughter, it is with the opposite sex, and I would never try to influence what, for them, is their loving relationship. They have chosen to do things with people that I have ultimate respect for and I hope that they commit their relationship to that next level one day, too. I have received contact from one person in my electorate who I do know quite well and I want to take a minute to read it. it is about the Same Sex Marriage Bill, of course, and he states:

...if passed it can be challenged in the High Court.

We have heard others talk about that, too. He goes on to say:

Not only is the regulation of marriage a Federal concern and therefore a waste of good parliamentary time (and therefore taxpayer dollars) to pursue this at state level. No parliament can redefine marriage without an Australian Constitutional change.

That is his position. He goes on:

Since our preamble starts with 'Humbly relying on the blessings of Almighty God' then it would not be wise to tamper with His institution or think that mere flesh and blood can redefine God and escape the consequences. Since you would have opened Parliament in prayer—

and we do that every day—

so that you could enact His wisdom it would be wise to find His mind on this family and society destroying legislation.

As I say, I am not a deeply religious person but I come in every day, whenever possible, and say the Lord's Prayer to myself because I believe it will help me make better decisions. We are all faced with a challenge on this issue. I have listened very intently to all the contributions made by people and I know they are talking to hundreds, if not thousands, of people, too, but for me it comes down to the basic principle on which I have always lived my life and that is that the marriage term is defined by a man and a woman. Donna and I have celebrated 25 years together now and I hope it stays so for another 50 years, if she will put up with me for that long.

I do not judge people by their sexual orientation and I never would. I treat people on how they present to me, what they say to me and how I interact with them. I do not listen to what others might think of people when I form a position on a person. I judge them on how they react with me. For me, it is not important. I understand, also, in the sections of people's lives that are not known to the public that other things might occur, too, so I respect that.

I will vote against this bill, even though I have respect for the member for Port Adelaide, on the basis that it is a terminology that is used that I cannot accept. I know many members in this chamber are faced with the same dilemma. I think this will define our society, and the member for Newland referred to society very strongly. I am a believer in the future, also. The future will be impacted by decisions that we cannot influence, and never could try to, but on this day I hope the house decides to not support the bill.

The Hon. L.R. BREUER (Giles) (12:09): Before I start, I have to declare an interest in this. I am not gay and I am not married. Statistics for marriage rates in Australia show that every third marriage ends in divorce, 29 per cent of Australians never marry (which is almost a third) and a third of children are born outside traditional marriage. So much for the importance of this wonderful, sacred institution. I have heard people here calmly speaking today with some self-righteousness and some very convincing tones, but the hypocrisy in this place absolutely appals me. Just listen to yourselves and what you are saying here today, so many of you.

I know many people here today actually do believe that gay people should be allowed to marry, and you have said so, on both sides of the house, so have the guts to stand up for your convictions. Let your own personal views stand and not what you have been told to do. Stand up for your convictions on this. Do not hide behind these constitutional issues we are hearing about with the commonwealth Marriage Act, etc. We do not know whether this will be legitimate or not, if this goes through, but let's do it.

I am appalled by the views of the far right on both sides of the house on this. I have had emails coming to me, telling me that in God's eyes, in the Bible, this is wrong. I am sure that here in this place and in the gallery there are people sitting there with their rosary beads or their Bibles in their back pockets, fearing divine retribution if they were to vote for this bill. Well, the God I was raised with was a loving, compassionate God, and is He really going to judge two people who love each other, and have loved each other for a long time, who want their union to become recognised by our community? That is not the God I was raised with and that is not the God I would want to believe in, if that was the case.

I have also been deluged with emails telling me that a child must have a mother and father, and I have heard this so many times here this morning. Well, I raised my children without a father. He disappeared into the wilderness. I raised my children on my own and one is now the deputy mayor in Whyalla and the other one is working in a humanitarian organisation with refugees, working every day with people who are in trauma, etc. I do not think I did too bad a job with my children, and I think it is an insult to every single parent who struggles on their own to raise their children, or are in a co-parenting relationship where one parent lives away from the other parent, to say that you must have a mother and father at home. Ask the members for Ramsay and Little Para, the Minister for Transport Services and me about raising children on your own. It would be very nice to have a mother and father there, but it does not always work.

What I say to people is: 'Stand up for what you believe in.' Members here today, stand up for what you believe in. Give gay people an opportunity to marry if they wish to do so. South Australia was a very progressive state under the wonderful Don Dunstan and, colleagues on my side, I ask you to remember this: people came to South Australia because we were so progressive with our social issues. So, have the strength to stand up for what you believe in. Do not be hypocritical. Do not hide behind constitution and legal jargon today.

If you truly believe—and I have heard so many of you say it today—that gay people should be allowed the same opportunity as everyone else, then give them that right and that opportunity to do so. Do not force your religious beliefs down my throat. Do not force your homophobic beliefs down my throat if that is what this is really all about. Stop playing political games. The hypocrisy of this place appals me. Stop playing these political games when people out there are hurting because they do not have that opportunity that everybody else has. Whatever votes you think you are going to lose by supporting this bill, you are going to make up with a heck of a lot of other free-thinking people out there who will support you on this and admire you for having the guts to do it and for standing up for what you believe in. I support gay marriage and I will stand up before anyone and say so.

Mr WHETSTONE (Chaffey) (12:18): I rise today on the Same Sex Marriage Bill introduced by the member for Port Adelaide. As the member for Giles has declared, I am a single parent and my mother was a single parent, so I am not hiding behind any facade, let me tell you. However, this is an issue that has had increasing traction both in this place today and in the federal arena. It is an issue that requires one to think long and hard about their decision, their view and their vote. I am here today representing my constituency, who have given me extreme feedback. Hundreds and hundreds of people have come to my electorate office. I have had a mail trail miles and miles long with people's opinions and views, their argument one way or another, and that has informed my decision on opposing this bill.

I believe that marriage is the lawful union of two people: a man and a woman, to the exclusion of all others, voluntarily entered into for life. Now, that did not work for me, and that did not work for my mother. It has not worked for all of the people who are listening to this debate or all of the people who are sitting here today, but it is the way that things work; it is the expected outcome of a marriage.

As I said, I have been inundated by the feedback of my constituency, and they are the people that I am representing; I am here voicing their concerns. I have taken a lot of time over the last few years to listen to and consider the views and positions of my constituents, not just on this bill, but on every decision that we stand here and debate. As the representative of the electorate of Chaffey, I think it is appropriate to act according to the balanced views of all sides of the argument.

One of my primary concerns and indeed a concern of many South Australians is that if this law is to go through, enacted by state parliament, legalising same-sex marriage would likely be constitutionally invalid. The weight of the legal opinion seems to support this conclusion. The commonwealth has regulated the area of marriage since it introduced the Marriage Act in 1961. This is where the current definition of marriage comes from, under section 109 of the Australian Constitution. It would appear that a state law allowing same-sex marriage, such as that put forward by the member for Port Adelaide, would be inconsistent with federal legislation. It would therefore be inoperative.

The member for Port Adelaide herself says she is almost certain that the bill, if passed, would face a High Court challenge. High Court challenges are extremely expensive in both time and money and are mixed with emotion. The state Labor government has already committed hundreds of thousands of taxpayer dollars to defending its legislation, and we cannot afford these expensive challenges. It is not about the money; it is about the moral obligation of people's beliefs.

This bill might also create difficulties for same-sex couples in other areas. For example, couples may experience problems in having their rights and responsibilities recognised under other legislation. This includes areas like family law and succession.

As I mentioned before, I have received large amounts of correspondence from my constituents about this issue, and I would say that the majority of the feedback I have received from the people living in Chaffey has been to oppose the bill. Each of those individuals is entitled to their views, as am I. As the member for Chaffey, and therefore the representative of people living in that electorate, I feel that the most appropriate action is to listen to the people.

I also have a number of friends who are gay and, as the member for Waite has said, I have had extensive discussions with them on this particular topic. Our discussions have always been robust, and they have always been understanding and informative discussions. They know my position on this issue and they are accepting of that, as I am aware and respectful of their position.

I am yet to be convinced by the long-term merits and benefit of this bill. As I keep stressing, this is a decision that I have come to after thinking about it for a long time and by listening to the opinions of my constituents, friends and family. So, I will be voting against this bill today on the primary ground that the constitutionality will be invalid and would therefore expose South Australian taxpayers to an enormous legal bill. My decision is also based on the views of the Chaffey electorate.

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