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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-02-23 Daily Xml
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MARRIAGE EQUALITY BILL

Second Reading

Adjourned debate on second reading.

(Continued from 9 February 2011.)

The Hon. S.G. WADE (16:50): I rise to speak on the Marriage Equality Bill 2011 as lead speaker for the opposition. In a recent meeting the parliamentary Liberal Party determined that while the issue of legal recognition of same-sex relationships is a conscience vote for our party, we will not support this bill on the ground of legislative competence.

When this parliament has considered a range of legislation to deal with the discrimination against same-sex couples and legal detriments to their children, the Liberal Party has shown that it is sensitive to the needs of the gay community. In a recent vote on the legal recognition of children conceived within a same-sex couple household, more Liberals voted for the bill than Labor members. There is a diversity of views in the party on the issue of whether marriage should be available to people of the same gender. A number of our members would oppose a same-sex marriage law if they were members of a legislature competent to determine the issue; others would support it.

It is not surprising that our parliament is being asked to consider same-sex marriage—it is topical. In recent years, same-sex marriage has become legal in Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, Sweden, and five states in the USA. Same-sex civil union is performed in 18 countries, including France, Ireland, Germany, New Zealand, and the United Kingdom.

In Australia, subsections 51(xxi) and 51(xxii) of the Commonwealth Constitution give the commonwealth parliament the power to make laws for the peace, order and good government of the commonwealth with respect to marriage, divorce and matrimonial causes, and in relation to parenting rights and the custody and guardianship of infants. Nonetheless, marriage law was state-based until the passage of the commonwealth Marriage Act 1961. The Marriage Act did not include a definition of marriage, preferring to rely on the common law definition and 'the evolution of the meaning of marriage as it relates to marriages in foreign countries'.

However, section 46 of the act included a provision that a celebrant, in explaining the nature of a marriage relationship, must say the words 'marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life'. Same-sex marriage became contentious at the federal level in the early 2000s, and the Marriage Act was amended in 2004 firstly to make explicit that the marriage under that act is available only to a male and female. Section 5(1) of the act now reads:

marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

Secondly, the 2004 amendments withheld recognition of foreign same-sex marriages. Section 88EA now provides:

A union solemnised in a foreign country between:

(a) a man and another man; or

(b) a woman and another woman;

must not be recognised as a marriage in Australia.

In Australia, civil unions are available in the ACT, Tasmania and Victoria, and New South Wales offers same-sex couples access to a domestic partnership registry. In September 2010, Tasmania became the first Australian state to recognise same-sex marriages performed overseas. In August 2009, the Greens introduced a same-sex marriage bill in the commonwealth parliament. The bill was reviewed by the Senate Legal and Constitutional Affairs Committee which recommended that the bill not pass.

Bills to allow for same-sex marriage have been or are being presented in the parliaments of Tasmania, New South Wales and Victoria. On Wednesday 9 February, Greens MLC the Hon. Tammy Franks introduced a private member's bill to allow for same-sex marriage under South Australian law. The South Australian, Tasmanian, Victorian and Northern Territory state ALP conferences have passed motions supporting same-sex marriage. Nonetheless, I understand that the ALP caucus did not allow the Hon. Ian Hunter to introduce a bill.

The threshold question with this bill for the Liberal Party is that of the legislative competence of the Parliament of South Australia. My party has come to the view that the answer to that question is sufficiently unclear for us not to support the passage of this bill. The Hon. Tammy Franks relies on legal advice provided to the Tasmanian Greens in 2005 from Professor George Williams, a constitutional lawyer from the University of New South Wales, which supported the right of state parliaments to legislate for same-sex marriage.

Professor Williams considered that the commonwealth Marriage Act covers the field of marriage only insofar as the concept is defined by that act, that is, between a man and a woman to the exclusion of all others. A state law for same-sex marriage would cover a different field, in his view, and therefore not be inconsistent with the federal act.

The Hon. Tammy Franks did not quote this source, but I would also draw the house's attention to the advice given in 2009 by the Gilbert + Tobin Centre of Public Law in a submission to the Senate Legal and Constitutional Committee. The centre asserted that, while section 51(xxi) of the Australian Constitution gives the commonwealth power to make laws with respect to marriage, this may not extend beyond the power to legislate for a union between a man and a woman.

While both sets of legal advice support the right of state parliaments to legislate for same-sex marriage, both advices are neither confident nor equivocal. It is highly likely that the passage of such legislation would be subject to legal challenge. The Liberal Party has come to the view that it should not support the enactment of a bill of such questionable validity.

First, we do not consider that South Australia should commit scarce state taxpayers' money to fund legal challenges of such dubious value. As other states and territories are looking to legislate in the area, I also suggest that it would be wise to await judicial consideration of their acts. If the courts do come down on the side of the states having legislative competence, the issue may well be raised again in this place.

Secondly, enacting a doubtful law would also invite judicial involvement in an issue which we consider is best resolved at political and parliamentary levels. Thirdly, at a time when our party is increasingly concerned about the expansionism of the commonwealth government and parliament—which we often condemn in a range of domains—it would be peculiar for us to be just as constitutionally aggressive.

Even apart from the constitutional issues, I doubt whether most supporters of same-sex marriage would be satisfied with a state-based law. A key element of the push for same-sex marriage is that the same form of marriage should be available for same-sex and different-sex couples. Civil union is seen as a second-class form of recognition to marriage. Similarly, I would have thought that a state law marriage was likely to be seen as a second-class form of recognition to a commonwealth law marriage.

The issue of whether same-sex couples should be allowed to marry is a free vote for our party. The Marriage Equality Bill 2011, however, will not be supported. I close with a personal reflection, not a party position. Before doing so I stress that I am not stating a position on the issue. I have a consistent record of being open to homosexual rights and of standing against homophobia; however, I want to respond to a furphy thrown into this debate by the Hon. Ian Hunter in his contribution. The honourable member said:

So, perhaps the most common reasons people object to same-sex marriage are those based on personal religious beliefs. Today, in Australia, it is often conservative Christian beliefs most quoted in opposition but, of course, they are not alone. I would argue that, first and foremost, Australia is a secular society.

He goes on to say, later in his contribution:

Australia enjoys freedom of religion and freedom from religion. Therefore, arguments based on religion have no place in this debate about minority human rights.

Now is not the time to challenge the Hon. Ian Hunter's understanding of the separation of church and state in Australia, but I do not want to let the opportunity pass to rebut his attack on religion couched in the term 'freedom from religion'.

We live in a pluralist society, not a secular one. Those of us with religious views have every right to participate in public debate and to do so in accordance with our religious views. The honourable member's argument is inconsistent with his own contribution. He cites the perspective of a range of religious people to support his case, but if politics and government should be free from arguments based on religion he should not have done so. Supporters of the bill have no more right to engage in the debate than other people of faith, on his argument.

The Hon. Ian Hunter may argue that religious people can participate in the debate as long as they do not mention religion. Not only would that encourage a lack of openness but it also fails to appreciate the holistic nature of faith in most faith traditions. In my faith, for example, Jesus challenges us to 'love the Lord your God with all your heart and with all your soul and with all your mind'. Everything Christians do should be consistent with a holistic world view.

Different members of parliament of Christian faith will understand their duties differently; some will see it as their responsibility to legislate to mandate their understanding of Christian moral choices. I do not. However, all Christians have a responsibility to apply the values of their faith—values such as justice, compassion and hope. A decision about whether or not to support a proposal to hand on a pension increase to housing trust tenants is just as much a values-based choice as whether or not to allow euthanasia.

The Hon. Ian Hunter's call for a religion-free debate is particularly bizarre in the context of this bill. The Hon. Tammy Franks paid tribute to the leadership of Senator Sarah Hanson-Young from the Greens. The Hon. Ian Hunter paid tribute to the leadership of Senator Penny Wong from the Australian Labor Party. I understand that both honourable senators are committed Christians. Accordingly, I accept their positions as being informed by Christian values and respect them as an expression of their Christian faith.

They have every right to bring those values and views to the marketplace of ideas. Unlike the Hon. Ian Hunter, I do not embrace freedom from religion. I celebrate the freedom of religion we enjoy in Australia, both between and within the faith communities and between and within the non-faith communities.

Debate adjourned on motion of Hon. J.M. Gazzola.

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