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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-06-20 Daily Xml
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SAME SEX MARRIAGE BILL

Introduction and First Reading

Dr CLOSE (Port Adelaide) (10:33): Obtained leave and introduced a bill for an act to provide for same sex marriages in this state; to recognise same sex marriages under corresponding laws; and to make related amendments to the Births, Deaths and Marriages Registration Act 1996 and the Wills Act 1936. Read a first time.

Second Reading

Dr CLOSE (Port Adelaide) (10:34): I move:

That this bill be now read a second time.

The American philosopher William James wrote in 1891 that, 'the highest ethical life—however few may be called to bear its burdens—consists at all times in the breaking of rules which have grown too narrow for the actual case.' But we in this place enjoy a particular fortune. Rather than breaking the too narrow rules, we are in a position to change them.

The rules of traditional marriage are now too narrow and the time has more than come, in 2013, to address this particular injustice where sexuality is a barrier to being able to legally marry one's partner. The same-sex marriage legislation arising in jurisdictions around the globe tells us that the time for change is now well and truly upon us.

Our nation and especially our state can boast long records as beacons of equality and fairness. We have prided ourselves on our forward thinking, but, on this particular matter of equality, it looks as if the world may soon leave us behind, and I do not take any pride in that.

William James goes on to say there is but one unconditional commandment, which is, he says, 'to vote and to act as to bring about the very largest total universe of good which we can see'. I know that many of you will agree with me in heart and in conscience that legislating for same-sex marriage in this jurisdiction would contribute in a profound and meaningful way to the universe of good that we in this place strive to achieve and expand.

For a particular group of people, proportionally a minority but in real terms a very significant number of South Australians, this law would make a universe of difference to them and to their lives. The passage of this law would show that large group of people that we in this place do not believe sexuality to be a basis of exclusion from the simple and fundamental act of choosing to marry.

The compassionate human value of that decision cannot be understated in its magnitude, because there are a great many people who, by virtue of the discriminatory nature of our current laws, are being made to feel lesser. They are being made to feel that their relationships are neither as valuable nor as legitimate as heterosexual relationships. This discrimination affects not only these individuals but their families and in particular their children. Young South Australians growing up with parents in same-sex relationships, young people who happen to have been born to homosexual parents, are being given the message every day by the laws of our society that their families are worth less, that they are worth less.

Crucially, impressionable young South Australians, school-age children and teenagers who are just coming to realise that they are same-sex attracted, are receiving the same message: you are lesser. At a stage of their life where their self-esteem tends to be already fragile, our laws give them a very clear reason to think of themselves as less valuable. All of this is unacceptable to me. So I am guided by my own conviction that enacting legislation that would enable the state to recognise same-sex marriage is not only the decent thing to do, not only a good thing, expanding our total universe of good, but that there is an overwhelming moral imperative for us as lawmakers to try to address the injustice. If there is any possibility that we may accomplish this, then we must try.

This is a conviction that I hold deeply and dearly, and for reasons that not only derive from my moral conscience but from my personal experience. I have mentioned before in this place that I have a brother called Stephen, who is 11 years my junior. As it happens, today is Stephen's birthday. He celebrates his birthday today with his partner, a wonderful man who has been embraced by all our family and friends and in whose love my brother finds a great deal of joy. It is a jarring injustice to me that, despite our long list of similarities, one of the differences between Stephen and me that feels so minor to me means that I am able to marry the person I love, but Stephen is not.

I do not believe that I deserve to have access to any civil institution to which Stephen does not have access. I know that there is no difference between the love that I feel in my heart and the love that Stephen feels in his heart, so it is difficult for me to understand how it can be justified that the state regards us differently. That is one of the personal reasons I so strongly support what this bill attempts to do, which is provide for people seeking to enter same-sex marriages as the commonwealth has provided for people seeking to enter heterosexual marriages.

Let me now address the matter of concerns around the constitutionality or the validity of this piece of legislation. As with any legislation passed in any Australian parliament, its validity must be a concern of the parliament as well as a concern of the courts. As we all know, Australia has a federal system and under our constitutional arrangements some matters are given to the commonwealth and others remain the authority of the states. The Australian constitution grants to the commonwealth the power of marriage in section 51(21).

The full constitutional meaning of that single word and the ultimate scope of the commonwealth powers over the subject matter remain unknown. What we do know is that marriage is a concurrent power under our system. It is a power shared by states and commonwealth parliaments. We know this because there are many people in this house whose parents were married under the state law prior to 1961, when the commonwealth Marriage Act came into operation. A South Australian marriage act was first passed by the parliament more than 50 years prior to federation in 1842. As late as 1957, this parliament was reforming the act to raise the age of marriage for boys to 18, and for girls to 16.

Of the two jurisdictions, the commonwealth is the latecomer in the regulation of marriage. So there are no grounds for concern regarding the capacity of this parliament to pass the legislation. As I have said, it is a concurrent power, not the exclusive power of the commonwealth. However, it is the case that the commonwealth amended the federal Marriage Act in 2004 in an attempt to define marriage under the commonwealth act as being between a man and a woman.

So certainly there are grounds on which the validity of this legislation may be challenged, but that challenge will not be on the basis that this parliament lacks the capacity to pass the legislation. Rather, if there is any challenge, it will be on the basis that the two laws contradict, or are inconsistent with, each other. As we know, section 109 of the Australian Constitution deals with issues of inconsistency. The section provides:

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.

However, that does not make the state law unconstitutional. Rather, in the words of the section, the state law is invalid, and it is a special kind of invalidity. As Chief Justice Latham pointed out in the Egg and Egg Pulp Marketing Board case in 1942, the word 'invalid' in section 109 cannot mean that a state law affected by section 109 becomes ultra vires, in whole or in part. The word must be regarded as meaning inoperative. His Honour added, 'If the commonwealth law were repealed, the state law would again become operative.'

But the forensic examination of the operation of the commonwealth law and this proposed law is not a matter for any of us in this place to decide conclusively. If challenged, it would ultimately be a question for the High Court of Australia.

It is for the High Court to determine whether the two pieces of legislation, the federal Marriage Act and this proposed act, can coexist together, or whether the federal legislation covers the field and exclusively provides a narrow and specific definition of marriage in Australia as being between a man and a woman. There are respectable arguments to both conclusions. The commonwealth has legislated for heterosexual marriage; that much is clear. But has the commonwealth succeeded in legislating for all marriage? That is the question the High Court will have the opportunity to answer if this parliament passes this piece of legislation.

Whether the commonwealth government did, in fact, achieve that narrow end has never been tested. We are not acting in the face of known High Court jurisprudence. If South Australia were the first state to pass legislation such as that which is before us now, then that opportunity would arise for the first time.

For me, there is no question that the amended federal Marriage Act is discriminatory in its exclusive provision of heterosexual marriage. For those of us who believe that the rules of marriage in this country are too narrow, they should embrace this opportunity to test the scope of the existing law, not to shy away from it. Whatever the answer to the question of the coexistence or otherwise of the commonwealth and state acts, I am not so presumptuous to believe that I can provide a definitive answer.

For those who believe that all people should be treated under our laws as equals and that none should be left behind, or excluded, they should embrace William James' one unconditional commandment: that we should vote and act as to take another step in expanding our universe of good to make room enough for all South Australians, not just most South Australians, to reside within it.

Debate adjourned on motion of Dr McFetridge.

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