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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-02-09 Daily Xml
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MARRIAGE EQUALITY BILL

Introduction and First Reading

The Hon. T.A. FRANKS (16:05): Obtained leave and introduced a bill for an act to provide for marriage between adults of the same sex. Read a first time.

Second Reading

The Hon. T.A. FRANKS (16:07): I move:

That this bill be now read a second time.

I rise today to put before this place a bill for marriage equality for South Australian adult consenting couples of the same sex. As we would be aware, the Marriage Act is a federal act in Australia, and it is not typical that we discuss matters related to marriage in this place in terms of the legislation and protections and rights to our citizens in South Australia specifically. However, we do so because of the situation that has presented itself before us at a federal level.

I am proud to stand here as a Greens member moving this bill. I am just as proud to be fully in support of the federal bill that Greens senator, Sarah Hanson-Young, has moved for marriage equality in the federal parliament to beat us to the punch, should that occur. Senator Sarah Hanson-Young has worked on this issue tirelessly for many years, but she is certainly not alone in that. Of course we saw in the federal parliament the issue of same-sex marriage first canvassed under prime minister John Howard.

We saw rushed moves through that federal parliament to ban same-sex marriages as couples began to marry overseas and come back to Australia and sought to have that status recognised here in this country. At the time, then Senator Natasha Stott-Despoja of the Democrats first moved a bill to establish marriage equality for same-sex couples in this country. That bill was never debated before the federal parliament, but I am pleased to see that Sarah Hanson-Young has continued that work.

We have also seen thousands of people in the streets supporting the concept of marriage equality in legislation in South Australia. In fact, last year was earmarked as the Year for Marriage Equality. We saw many thousands of people on the streets in Sydney, Melbourne, Hobart and Adelaide, and we certainly saw them in force at the ALP state conference late last year. I am pleased to note that at that ALP state conference we also saw a motion from the Labor Party, with its internal party structures in support of same-sex marriage, so I hope that that would see some sea change within that party.

We also know that those rallies and that that particular motion of the state ALP party here in South Australia reflect community attitudes. Community attitudes on this issue have been changing. Increasingly, they have been changing in support of acceptance of same-sex marriage. That is in Australia, of course, and we see that over 60 per cent of Australians in fact do believe that same-sex consenting adults should be able to marry each other if that is what they wish, but also around the world we have seen attitudes to this changing because couples were marrying overseas and sought to have that relationship recognised.

We are often told by the nay-sayers and the scaremongers on this issue of same-sex marriage equality that the sky might fall in and that the state will grind to a halt should we accept such a thing. I would note that the Netherlands has had same-sex marriage since 2001; in Belgium, since 2003; in Canada, since 2003-05; in Spain, 2005; South Africa, 2006; Norway, 2009; Sweden, 2009; Mexico City and Mexico, since last year, 2010; and Portugal, Iceland and Argentina also since 2010.

In California, it was the law between 2007 and 2008 before it was repealed. Iowa, Vermont and Washington have had this law since 2009, and New Hampshire in the US, since 2010. The sky has not fallen in any of these places. They have continued to function; they have continued to be just as prosperous or to have such a lack of prosperity as they did before or after this bill was introduced. However, they have given citizens who wish to marry each other and are of the same sex the ability to do so, and so I think they are brighter places.

There are places where same-sex marriages are recognised but not performed. These include: Israel, which has had that recognition since 2006; Rhode Island in the United States, since 2007; New York since 2008; and Mexico since 2010. California had that recognition for the year 2007-08; Maryland in the US since 2010; and, most notably, Tasmania since 2010. I am proud to say that that was also a Greens-instigated bill that now recognises marriages that are conducted in other jurisdictions by same-sex couples to be marriages in Tasmania. In Finland, Slovenia and many other places around the world, we are seeing the march towards equality, also. We are seeing same-sex couples being recognised in the laws.

Same-sex partners will not have legal equality under the Marriage Act until it is amended to make sure that they have the same recognition as opposite-sex couples. Until this happens, they will face practical legal problems because they are not able to marry. In the absence of a marriage certificate, they can have problems proving their legal entitlements. This can be a problem in medical emergencies and where a partner has a decision-making role for the other. I would draw members' attention to a story of one particular person who had married her partner overseas. This is Julianne Clark's story:

I married my partner of the same-sex overseas in 2006. But the moment I stepped back onto Australian soil, my marriage was not recognised. My partner was hospitalised in 2007 and I was informed I had no more rights than a friend, hence I was only allowed in during visiting hours.

That might seem trifling to some people, but when a loved one is sick and when they are your wife or husband, of course you want to be able to visit them at whatever hours, and hospital policies (as we know) change the rules for those who are in a marriage. That right should have been afforded to that particular couple in that case. It is a tragedy that it was not.

There is no substitute for marriage. I often hear people say, 'Why can't people have civil unions? Surely that should be good enough.' Beth Robinson, the US activist, has summed it up best: 'Nobody writes songs about civil unions.' When you want to introduce your partner or your son-in-law or daughter-in-law, you do not say, 'Here is my civil union partner.' It does not quite have the same ring to it. You do not dream, when you are a child, of growing up one day and 'civil unioning' the one that you find to be your one true love. I have not ever seen in the fairytale books the idea of the prince and the princess 'civil unioning' and living happily ever after.

Studies in Britain and the US have shown that, where there are alternative forms of relationship recognition—and these are often called things like civil unions, civil partnerships, registered relationships, domestic partnerships—they are no substitute for marriage equality. They do not have the same level of recognition as marriage, are misunderstood and considered the gay option, perhaps, or dismissed as second-best.

This means the legal rights of those couples in those unions are sometimes not respected. In the absence of marriage equality, other schemes for recognising same-sex relationships effectively label these relationships as lesser or different, and they reinforce the second-class status marriage equality is just designed to overcome. We know that we have a sad history in this country of discrimination against those people who are same-sex attracted.

I am very proud that, in South Australia, we were, in fact, leaders in the decriminalisation of homosexuality—I was going to say homosexual activity, which is what they used to term it as—but homosexuality. I am very proud of that history that we have here in South Australia, and I would be just as proud to see us lead the way in seeing marriage equality here in South Australia as well.

I think that there are a few furphies out there that get raised around the equal love and marriage equality debate. The first is that same-sex couples already have enough rights. We have seen a lot at the federal level where the Labor government, to its credit, has come a long way in a very short time just recently in recognising same-sex couples, whether that be through our welfare system with superannuation and with entitlements and so on, and I welcome that, but I say it has not gone far enough.

Same-sex de facto couples have trouble proving these rights when challenged, and the rights of partners in civil unions or in de facto relationships are often not widely understood or respected. Only marriage equality will provide same-sex couples with their full legal equality and full recognition of their spousal rights.

We also hear the furphy that marriage will be demeaned. There is no evidence that heterosexual marriages suffer or that marriage is held in lower esteem in countries where those same-sex couples have been allowed to marry. I would also point to Elizabeth Taylor's many, many marriages or Britney Spears' very short marriage, and note that they have not demeaned the institution of marriage.

The same argument used to be made against interracial couples being allowed to marry and, of course, I do not think that anyone would contend in this day and age that interracial couples should not be allowed to marry, and certainly those couples do not demean marriage.

We also hear that it will be a slippery slope, that it will open the gate for human and animal marriages, or human and inanimate object marriages. I have had some correspondence on this recently where I have been asked why I am standing up for homosexual couples when I am not standing up for incest, or I am not standing up for the rights of people to marry their pets, or a whole range of quite abhorrent suggestions. I would say to those people that it simply proves their homophobia. I think that that sort of argument demeans the institution of marriage.

We have also heard that marriage is unchanging. Marriage laws once used to prohibit divorce. They made wives the property of their husbands and they banned interracial unions. This, of course, has quite rightly changed to ensure greater equality. Marriage equality for same-sex partners will actually make marriage more relevant to a society increasingly accepting of homosexuality.

Same-sex relationships, we are told, are very short lived but, in countries that allow same-sex marriages, divorce rates are the same for opposite and same-sex couples—no better and no worse—and certainly those are words that we hear a lot with regards to marriage. Large-scale studies of same-sex couples show that their relationships are of just the same quality and the same duration as other couples. As I say, no better and no worse, and certainly just as diverse.

We also hear that there is a problem with religion and marriage, because marriage is seen to be a religious institution. I would point to the fact that in Australian law there has always been a clear distinction between civil and religious marriages, and today two-thirds of Australian marriages are performed by civil celebrants and not in churches. This distinction is why the law allows marriages between people of different faiths or of no faith, it is why the law allows divorce, although some Christian teachings condemn it, and why polygamy and child betrothal is not allowed, even though they are common in the Old Testament.

Denominations such as the Quakers and individual celebrants of other faiths already marry same-sex couples. In fact, I was most touched by one of the 27,000 submissions to this bill in the federal parliament from an ACT-based church, which had two members of its congregation who were dearly loved and who wanted to marry. That church contended that its freedom of religion was being violated because it was unable to marry those two members of its congregation and that it would dearly love to. Anyone who has been to any of the marriage equality rallies here in South Australia would know that we have quite a few similar cases within the Uniting Church and other churches in this state.

Why would same-sex couples want to marry? I point out that this is not going to force any same-sex couples who do not want to marry to marry. So, when the argument is put to me, 'I know a same-sex couple and they don't want to get married', they do not have to and nobody is going to make them, but for those who want to it should be an option that is open to them. They will decide to marry for all the same reasons that other couples marry, perhaps not for a Green Card, but we will see—not that that applies here in Australia—but for a Visa, for legal security, to publicly celebrate their commitment, to provide greater legal protections for their children or simply because they are in love.

Marriage remains the most important way that we celebrate love and commitment in our society. Terms such as 'husband' and 'wife' are universally recognised as connoting love, commitment and a shared life together. When same-sex partners are told that they cannot share in such an important and universal institution, they are effectively being told that their love and commitment is of a different and lesser quality. This is not true. Same-sex partners love each other and make sacrifices for each other in the same way that all partners do and it is time for our laws in South Australia, and Australia, to acknowledge this.

Globally, where same-sex marriages have been allowed, the statistics that I read out of other countries that have so far enabled same-sex marriages show they are growing very quickly and, in fact, I am sure that they will be joined by some more soon. Economically, we have seen some really significant issues emerge where marriage, according to the Economist magazine, remains an economic bulwark. Single people are actually economically vulnerable and much more likely to fall into the arms of the welfare state. For those readers of Ayn Rand, you perhaps might like to refer to that argument in support of marriage equality. Furthermore, those who are not married call sooner upon public support when they need care. Married people, the statistics show, are not only happier, they are often healthier.

It has been estimated that if 55 per cent of Australian same-sex couples who wish to marry spent the national average on their wedding, that would be $7 billion injected into the Australian economy. I would point out that the Sunday Mail raised this issue quite early on in the piece. Should South Australia lead the way in this that would be quite a chunk of that $7 billion coming towards South Australia's economy. Not that I think that is the main reason to do this, but it certainly would not hurt. Many private institutions and corporations, such as the Commonwealth Bank, the ANZ, Westpac, St George, IBM, Qantas, ING and Seek have all come out in support of same-sex marriage and certainly support their employees who are in same-sex relationships.

At this point I would note that, as I mentioned before, we have a marriage bill before us which would normally be a consideration of the federal parliament, but given the blockages presented at the federal level we are in fact not only seeing marriage equality bills presented in South Australia, but we are seeing them in Tasmania, we will see them in New South Wales and we are seeing them in Victoria. These have all, of course, had some input by the Greens but also other members. I note that I am on record as being joined as a co-sponsor of this bill by the Hon. Ian Hunter of the Labor Party. I also note that, in Western Australia, we are seeing moves by the National Party towards marriage equality, although at a civil union level to start with.

We have seen people come out on this issue from all sides of politics—the Greens, of course, Liberals, Labor, the Nationals and Independents. The reason for this is that it is not a party political issue; clearly, it is a deeply personal issue for many, many people. I think the logic of it actually transcends our party politics, and I certainly hope that is the case when we are considering the issue in this debate.

The reason we are seeing the issue raised at a state level is largely due to some formal opinion, provided to the Tasmanian Greens initially, on the constitutionality of this move, from Professor George Williams, a constitutional law expert from the University of New South Wales. I am happy to circulate this legal advice to members. In summary, at a federal level we have seen moves to discriminate against a certain category of people, being consenting adult couples of the same sex, by preventing them from being able to marry, and that, in fact, has opened up the door for states to legislate in this area to address that discrimination, and I hope we take up that baton.

Another person who I think would be cheering us on (and I would draw the particular attention of Labor members of the parliament to this but, as I have said, this is an across-party issue) is Bill Hayden, who writes in support of marriage equality, as follows:

Yes, homosexual love is now tolerated by the law, but not marriage. There is a 'relationship certificate' available for them in Victoria, Tasmania and the ACT, the short end of the leash, civil partnerships. These offer some protections but do not pass muster as real equality for gays which requires the provision of marriage rights.

If an Australian same-sex couple go, say, to Canada they can get a marriage certificate which is universally recognised and understood as symbolising the solemn commitment between two people.

The Labor Party had the chance to do something meaningful on this at its last national conference but squibbed it. Has it lost the belly fire for the big challenges of major progressive reform and the enshrinement of basic liberties for which I have so long admired it?

It is not as if Labor is uncaring. In 2008 it did remove discrimination against same-sex couples in some 85 laws. But it is the big one, full recognition of gay people's marriage rights, which will really establish the depth of Labor's commitment to the principle of people's entitlement to be different but still fully valued law-abiding members of our society.

That is Bill Hayden AC, former governor-general and, of course, as we know, former leader of the federal Labor Party. I would hope that, as the Labor Party gears up for its next national conference, this issue will be fully and firmly on the table. I dearly hope that it follows the lead of the South Australian Labor Party in moving towards acceptance of marriage equality but, more than simply accepting it in theory, I hope it would be working hard to make it a reality.

As I have mentioned, I look forward to working with the Hon. Ian Hunter on this bill, but I would also welcome any other members of this chamber or the other place supporting us in raising this incredibly important issue and getting it to the forefront. People have waited long enough for equality.

When I was listening to the Social Development Committee the other day, one of the most poignant statements I heard was that, where discrimination continues to exist, it is all very well to say that we have a problem with homophobic bullying in our schools or in other places in our society but, if we as a legislature are endorsing a difference and lacking in that acceptance of the diversity and not ascribing equal rights to all of the members of our community, we are perpetuating that bullying and that homophobia by simply not doing enough to stop it.

Showing leadership at the top levels will, of course, be the way that we can address that discrimination. I would like to sum up with some personal reflections on how I think marriage is more important than a civil union. As I have said before, you certainly do not dream of growing up one day and 'civil unioning' your long-awaited partner. Should I have a child who were gay, I hope that one day, if that child fell in love and wanted to marry, I would be able to call somebody my son-in-law or my daughter-in-law, certainly not my son or daughter's civil union partner.

I believe marriage is not just about the two people who make that commitment to each other; it is also about creating family, and family, of course, is the basic building block of our society and a strong community. When you deny people the right to be sisters and brothers, mothers and fathers, then you deny far more than simply two people who love each other being able to make that commitment in public. With that, I commend the bill to the house.

Standing Orders Suspension

The Hon. T.A. FRANKS (16:30): I move:

That standing orders be so far suspended as to enable the bill to pass through its remaining stages without delay.

Motion carried.

Second Reading

The Hon. I.K. HUNTER (16:30): Today I will offer this chamber the second reading speech I had planned to give on moving my bill, which of course I can no longer do. I congratulate the Hon. Tammy Franks on moving her bill, which is, unsurprisingly, identical to the one I had drafted. It is no secret: we had them drafted as a joint enterprise.

I will begin my contribution to the second reading of the Marriage Equality Bill 2011 by reviewing Australian and overseas marriage legislation. I then propose to canvass the issue of civil unions, and will follow that with some points in the public debate. I will then address marriage as a modern construct, and why people such as myself would like to join the marriage club.

Rising to speak early on in this debate, as I am, means that I will not be able to respond at a later stage of the second reading process to any arguments that might be led in opposition to the bill, so I propose to second-guess those arguments, outline some of them that are already in the public domain and show how senseless they are and how essentially they are a very thin veil for continued discrimination and bigotry. Finally, I will touch on the debate ongoing in my own great party. I will not address the constitutional issues surrounding this debate, as I believe the Hon. Tammy Franks has already touched on them.

First, an overview of the Australian legislation: the Marriage Act 1961 is the act of the Parliament of Australia which covers legal marriage in Australia. Marriage is a commonwealth power under section 51(xxi) of the Australian Constitution, but prior to 1961 states and territories administered marriage law. In the early 2000s, marriage equality gained momentum around the world, with many of the countries Australia considers our peers legalising same-sex unions in some form or another. In 2001, the Netherlands legalised same-sex marriage, Canada followed in 2003, the United Kingdom passed its Civil Partnership Act in 2004 and in that same year the first legal same-sex marriages took place in the United States of America.

Perhaps somewhat spooked by this tide of reform, the Howard government took steps to redefine marriage in the Marriage Amendment Bill 2004 as a union exclusively between a male and a female. More uncharitably perhaps, Howard was trying to obtain some political gain by seeking to wedge the Labor opposition. On 27 May 2004, the then federal attorney-general Philip Ruddock introduced the Marriage Amendment Bill to incorporate the common law definition of marriage into the Marriage Act 1961 and the Family Law Act.

The amendment specified that marriage meant the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. Certain unions are not marriages: 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 June 2004, the bill passed the House of Representatives, and on 12 August 2004 the Senate passed the amendment by 38 votes to six. The bill subsequently received royal assent, becoming the Marriage Amendment Act 2004. At that time, representatives from the Howard government said that the legislation was an historic milestone for Australian values. Then National Party senator Ron Boswell was quoted as saying that there was no stronger bond than that between a man and a woman in marriage. 'Most Australians recognise that marriage is a sacred union,' he said, 'the most basic building block of society and the foundation of the family.' Meanwhile, many states and territories were agitating for a progressive change to same-sex relationship recognition, in stark contrast to the then federal government's amendments.

I would like to provide some information on same-sex civil union legislation in the Australian Capital Territory, for the conflict between the territory and the commonwealth—in particular, the extraordinary measures taken to stop same-sex unions by the Howard government—highlights the complex and passionate nature of this debate. The Civil Unions Bill 2006 was passed in the Australian Capital Territory Legislative Assembly on 11 May 2006. The ACT was the first jurisdiction in Australia to pass such legislation, which provided equal legal recognition for marriage under territory law. Members will no doubt recall the legislation created discord between the ACT and the commonwealth government. At the time, the prime minister, John Howard, stated that:

The legislation, by its own admission, did not attempt to equate civil unions with marriage, and we don't find that acceptable. Our view is very simple, and that is that the founding fathers in their wisdom give constitutional authority in relation to these matters to the commonwealth. We legislated in a bipartisan fashion to define marriage, and we're not prepared to accept something which is a plain attempt to equate civil unions with marriage, and we don't agree with that.

Senator Nick Minchin was quoted as saying: 'It is clear that the intent and purpose of that act is to equate a civil union to a marriage. In that sense, we regarded it as repugnant.'

Following the laws enacted on 9 June 2006, then federal attorney-general Philip Ruddock announced the commonwealth would move to overrule it, and so, on 13 June 2006, the federal Executive Council instructed the Governor-General of Australia to disallow the act. In December 2006, the Australian Capital Territory government introduced, and ultimately passed, the Civil Partnerships Bill 2006, replacing the term ‘civil union' with ‘civil partnership'. The bill was blocked once again by the commonwealth government in February 2007.

In 2007, the new federal Rudd government acknowledged its preference for a system of state-based relationship registers, such as those that existed in Victoria and Tasmania. Then attorney-general Robert McClelland said that 'the ceremonial aspects of the ACT model were inappropriate'. The ACT legislative assembly eventually passed the Civil Partnerships Amendment Bill 2009. The Rudd federal government had threatened to quash this legislation after it was passed, but backed down from this once concerns regarding ceremonial aspects were resolved.

In August 2009, the Greens introduced a same-sex marriage bill in the federal parliament. The bill was reviewed by the Senate Legal and Constitutional Affairs Committee, and the committee received a record 25,000 submissions, significantly more than any other Senate inquiry. The inquiry confirmed that there is enormous community interest in this issue, but ultimately recommended that the Greens bill not pass.

I want to recognise the significant reforms introduced by the Rudd government that allowed same-sex couples the same federal rights as cohabiting opposite-sex couples enjoy. The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008, which received assent on 4 December 2008, and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008, which received assent on 9 December 2008, provided significant gains for same-sex couples in areas such as joint social security and veterans' entitlements, employment entitlements, superannuation, workers compensation, joint access to the Medicare safety net, hospital visitation, immigration, inheritance rights and the ability to file a joint tax return—oh, great joy that that is— and gain the same tax rebates as married couples enjoy.

Same-sex couples celebrate and appreciate these significant reforms, but they were overdue and sorely needed. They do not come anywhere near satisfying our calls for marriage equality. If I could briefly turn to an overview of the international situation. It is estimated that 250 million people currently live in areas that recognise same-sex marriage. Same-sex marriage is legal in Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain and Sweden. Same-sex marriage is also performed in Mexico City and six American states. Slovenia and Finland have announced that they are likely to legalise same-sex marriage in the near future.

Other jurisdictions recognise same-sex marriages, but do not perform them. These include Aruba, Curacao, Israel, Mexico, Saint Maarten and four American states. On 1 October 1989, Denmark became the first country in the world to legally recognise same-sex unions. Currently, same-sex civil union is performed in 18 countries around the world, including many of the countries that we like to compare ourselves with, such as New Zealand, the United Kingdom, France, Ireland and Germany.

In the Australian states, civil unions in various forms exist in the ACT, Tasmania and Victoria. However, the federal government only recognises these state and territory civil unions for the purposes of federal entitlements. In Western Australia, the Northern Territory and Queensland there is no registration system, while New South Wales offers same-sex couples a domestic partnership registry.

In September 2010, Tasmania became the first Australian state to recognise same-sex marriages performed overseas and, as members would no doubt be aware, the current situation here in South Australia is that since June 2007 cohabiting same-sex couples in South Australia have been able to register their relationship through a Domestic Partnership Agreement document. The Statutes Amendments Domestic Partners Act 2006 amended 97 state Acts, dispensing with the term 'de facto' and instead categorising couples as 'domestic partners'.

This change in legislation means that any two people living together as a couple, whether they be a heterosexual couple or a same-sex couple, are now covered by the same laws. Same-sex couples can also make a written agreement called a Domestic Partnership Agreement, which legally clarifies their living arrangements. To be sure, this is significant progress but it is not quite the same thing as standing before your family and friends, publicly declaring your love.

No-one I know gets particularly emotionally excited by a proposal to get civilly unionised or 'Let's go and get registered.' It does not have the same ring about it. There are some problems with civil unions. With passionate rhetoric on both sides of this argument, civil unions have been suggested by some as a perfect compromise, but I do not agree. If Australia legalises same-sex civil unions instead of legalising same-sex marriage, the federal government would simply be reinforcing the second-class status of homosexuals in this country.

What would be gained from this? Australia already has an existing two-tiered relationship system. I firmly believe that there is nothing like marriage except marriage. A civil union is not the same as marriage. If it was, it would be called 'marriage'. Most of us would agree that the word 'marriage' matters. Marriage is more than a piece of paper. It is more than a positive affirmation. The word 'marriage' gives full social and legal inclusion to a couple.

Studies overseas have found that the terms 'civil union' or 'domestic partnerships' just do not convey the same emotional and cultural meaning. A 2008 study of New Jersey's civil union legislation found that civil unions just create a muddled middle ground that satisfies no-one. The study found that same-sex couples in civil unions were left feeling not quite married and not quite single.

International studies, including the UK Citizens Advice Bureau of 2007, the 2009 report of the Vermont Commission on Family Recognition and Protection and a 2009 New Jersey Civil Union Review Commission have confirmed that civil unions require constant haggling with authorities, some litigation and constant explanations by same-sex couples. Civil unions commonly lead to the mis-categorisation of a couple's status, and they often create awkward and inappropriate conversations in doctors' offices, airports, workplaces and schools.

But when you are married, everyone knows what this means. You don't need to carry around documents or call your lawyers to enforce your rights. I believe that we in Australia can learn from these overseas models and can choose not to repeat the same mistakes. Courts across the western world have declared that civil unions do not provide equality for same-sex couples.

There is a global trend towards full legal and social equality, with many jurisdictions such as Denmark, the United Kingdom and American states such as Vermont already taking steps to abolish same-sex unions in favour of same-sex marriage. The debate is not just about making sure that same-sex couples have adequate legal protection. The debate has gone further than that. Community views and expectations have changed with the times, and now the majority of Australians support marriage equality.

National polls on marriage equality began in 2004, when the Howard government amended the Marriage Act. It is interesting to chart the tide of public support for same-sex marriage through these polls. In 2000 when Australians were asked by Newspoll if they agreed or disagreed that same-sex couples should be able to marry, only 38 per cent of respondents supported marriage equality, with 44 per cent against and 18 per cent undecided.

Yet in 2007, a Galaxy poll found that 57 per cent of Australians supported same-sex marriage, with 37 per cent against and only 6 per cent undecided. If we look at the latest national opinion polls, it is clear that community views on marriage equality continue to grow and gain support. A Galaxy opinion poll conducted in June 2009 showed that 60 per cent of Australians support same-sex marriage, with 36 per cent opposed. Two other previous polls provide similar results. The October 2010 Galaxy poll of 1,050 voters found that 62 per cent of Australians agreed with same-sex marriage, 33 per cent disagreed and 5 per cent remain undecided.

On 16 November 2010, the essential report by polling and lobbying firm EMC found that 53 per cent they interviewed were in favour, 36 per cent disagreed and 11 per cent remain undecided. The most recent poll available was the Herald Nielsen poll released on Monday 22 November 2010. That poll shows that 57 per cent of Australians support the legalisation of same-sex marriage and 37 per cent oppose it.

If we broke down the October 2010 Galaxy survey results into age groups, there is an obvious generational difference of opinion. Polls reveal that 80 per cent of those aged under 24 years and 72 per cent of Australians with young children support same-sex marriage. Perhaps the reason for this overwhelming support by young parents is best reflected in the comments made by federal Labor Senator Mark Habib in The Australian on 6 November, as follows:

If I was a parent of a gay son or daughter, I don't know how I could tell them they didn't have the same rights that I do.

Perhaps not surprisingly the only demographic in which support for marriage equality is not higher than opposition is amongst Australians aged over 50 years. This group is split at 46 per cent in support and 46 per cent against, and 8 per cent undecided. And, whilst some may argue that this is an issue only of interest in urban cityscapes, the polls have revealed that 59 per cent of rural and regional dwellers also support marriage equality.

The Galaxy poll revealed that 78 per cent of Australians also supported a conscience vote on this issue in parliament. It also asked respondents their voting preference. It found that 81 per cent of Greens voters, 74 per cent of Labor voters and 48 per cent of coalition voters support same-sex marriage. The poll revealed that more coalition voters support same-sex marriage than oppose it. It is interesting to note that, when Canada first legalised same-sex marriages in 2003, public support for marriage equality there was just 48 per cent. Today in Australia 62 per cent of the population supports same-sex marriage, yet we still cannot get governments to act on this issue.

I note also that the business community has also given its opinion. While community support in the broader population for marriage equality continues to grow, key Australian business leaders have also publicly supported this position. In November 2010, the CEO of the Australian Industry Group, Heather Ridout, endorsed marriage equality, joining other economic commentators such as Chris Berg from the Institute of Public Affairs.

It is clear that Australians have a variety of views and definitions of marriage. To some Australians marriage is a spiritual covenant. To others it is a legal entity. Some view marriage as a source of social status, or some still view it as an institution that is oppressive and promotes gender inequality. These are all different views of marriage, and I am not here today to change anyone's beliefs. I say that anyone can continue to hold on to their beliefs about the married state. However, I ask that they do not require me to live by their views.

For me marriage is a public declaration of love and commitment that is an extremely powerful cultural institution. Homosexuals want to marry for the same reason everyone else does it: because they love someone. There is a public declaration of that love that is enshrined in the marriage ceremony. Wedding ceremonies are typically public; they are an important ritual that defines a very clear line in the sand in the life of a relationship. Australians pride themselves as a people with a strong commitment to a fair go for all. Yet, some Australians when confronted with what that really means—a fair go for all, for everyone in all circumstances—back away from this commitment. In Australia gay and lesbian couples have the same responsibilities as heterosexual couples and must abide by the law and pay their taxes: they are just not granted the same rights as heterosexual couples.

Marriage law in Australia has effectively resulted in a two-tier system: one for heterosexual couples and one for everyone else. We have learnt throughout history that different means inferior: separate is not equal. The notion that separate is not equal was raised in the landmark 1967 US Supreme Court case Loving v the State of Virginia. Richard Loving and Mildred Jeter were an interracial couple, married in Washington DC in 1958, who were arrested on their return to Virginia because of the state laws prohibiting interracial marriages. Mr and Mrs Loving were gaoled and released only after promising not to reside in the state of Virginia for 25 years.

After unsuccessfully challenging the ruling in the Virginia courts, the Lovings took the case all the way to the US Supreme Court. On 12 June 1967, the US Supreme Court ruled unanimously that the freedom to marry has long been recognised as one of the vital personal rights essential to the orderly pursuit of happiness by free men (no mention of women!) and that marriage is a basic civil right.

I would like to share with members a statement issued by Mrs Loving in June 2007 on the 40th anniversary of the Supreme Court verdict. Mrs Loving reflected:

My generation was bitterly divided over something that should have been so clear and right...The majority believed...that it was God's plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone, they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have the freedom to marry the person precious to me, even if others thought he was the 'wrong kind of person' for me to marry.

I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious belief over others especially if it denies people's civil rights. I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness and the family that so many people black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all. That is what Loving v State of Virginia, and loving, are all about.

Opposition to interracial marriage once caused significant debate within the community, just as same-sex marriage does now. I have no doubt that opposition to same-sex marriage will continue to lessen, just as opposition to interracial marriage has dramatically lessened over time.

The 1967 'separate is not equal' ruling is directly referenced in a 2004 Massachusetts Supreme Court ruling on same-sex marriage. The court ruled that same-sex couples are entitled to marriage, and the judges declared:

The history of our nation has demonstrated that separate is seldom, if ever, equal. The bill that will allow for civil unions, but falls short of marriage, will result in an 'unconstitutional, inferior and discriminatory status for same-sex couples.'

Loving v State of Virginia was also referenced by Judge Vaughn Walker in a recent federal constitutional challenge to California's Proposition 8. Proposition 8 was a 2008 ballot initiative that sought to amend the Californian constitution to prohibit the recognition of same-sex marriages.

Judge Walker ultimately found Proposition 8 unconstitutional, noting in his final verdict that California's domestic partnership laws do not satisfy California's obligation to provide gays and lesbians the right to marry for two reasons: firstly, domestic partnerships do not provide the same social meaning as marriage and, secondly, domestic partnerships were created 'specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples'. Just as it is in America, same-sex marriage in Australia is a matter of equality for all Australian citizens.

I would like now to go to some of the arguments that have been put up by those who oppose marriage equality. Firstly, there are some Australians who believe same-sex marriage will damage an institution steeped in tradition and an institution that, in their view, has always been between a man and a woman. In response, I would say that marriage as an institution has never been static. It has changed a great deal throughout history.

Centuries ago, polygamous marriages were commonplace. Levirate marriages, where a widow was required to marry her dead husband's brother and carry on her traditional duties, were once common. Men were allowed to marry girls as young as 12. Historically women were denied their legal rights and treated as property during a marriage transaction.

Couples of mixed race were once forbidden to marry, interfaith coupling was prohibited and children of interfaith marriages were considered illegitimate. In Australia, marriages between people of Aboriginal heritage were restricted, and divorce was once scandalous and improper. In her December 2009 article in the Australian Review of Public Affairs, Jane Edwards of the University of South Australia wrote:

However much conservatives insist that marriage is divinely ordained, it is an institution profoundly moulded by secular events. The changing position of women, the nature of the labour market, child care provision, educational and welfare policy, the state of the economy and other structural factors...shape [the institution of] marriage.

Edwards goes on to state that modern marriage is changing with society, as it should. Change is essential for marriage to survive. A contemporary marriage does not lock couples into a rigid institution as it once did, with strict gender divisions and expectations. That matrimonial template would have held little attraction for many same-sex couples, just as it has become increasingly unpalatable to many straight couples.

While marriage has traditionally been viewed through the prism of a religious context, marriage is, in fact, a legal construct and legalities are always up for debate and modification. When the Law Council of Australia appeared before the Federal Senate Legal and Constitutional Affairs Committee inquiry into marriage equality it confirmed that:

Legal reform of this nature is not unique; it is the natural progression of rights development as it accords with changes in social practice.

Another argument against same-sex marriage is that marriage is for procreation. This is a particularly weak argument because it ignores the fact that civil marriage is granted automatically to childless couples, sterile couples, couples who marry too late in life to have children and couples who adopt other people's children. In Australian law there is no direct link between marriage and raising children. If it were otherwise, there would be a legal requirement placed on married persons to procreate. Clearly, this is absurd.

In any case, a significant number of same-sex couples are parents. Gay couples successfully give birth to children, adopt children and care for step-children and foster children. While some critics of marriage equality argue that same-sex couples should not be allowed to marry because children should, ideally, be brought up in the care of two parents (a male and a female), Australian and overseas research have consistently shown that children in the care of two parents of the same sex are not disadvantaged. I refer to research conducted by the Australian Psychological Society in 2007, which found:

Parenting practices and children's outcomes in families parented by lesbian and gay parents are likely to be at least as favourable as those in families of heterosexual parents, despite the reality that considerable legal discrimination and inequity remain significant challenges for these families.

Marriage is not solely about procreation. It is firstly about love and commitment. Another argument often used by those against marriage equality is the belief that same-sex marriage will lead to an increase in divorce rates. A belief exists that same-sex matrimony will weaken heterosexuals' attachment to marriage and that it will intensify the modern Western world's divorce culture.

International studies have in fact found that the opposite is true. For example, there is no obvious differences in rates of heterosexual marriage in the first five European countries that recognised same-sex relationships: Denmark, Norway, Sweden, Iceland and the Netherlands. A 1995 study found that marriage equality has actually reinforced the institution of marriage. The survey revealed that since the introduction of same-sex marriages, marriage rates have increased by as much as 30 per cent and divorces are steadily decreasing.

More recent data from 2006 suggests that heterosexual marriage rates within these Scandinavian countries are, if anything, on the increase. There has also been a significant reduction in suicide and a reduction in the spread of sexually transmitted infections. I am not suggesting a direct causal connection between these positive outcomes, but it does somewhat deflate that particular argument against same-sex marriage. Sensible reflection would suggest that the action of a few gay men and lesbians getting married is unlikely to lead to a mass exodus of straight people getting married, in fact it may actually reinforce the status of the institution in the eyes of the younger generations.

Another line of criticism is that same-sex relationships are inherently unstable: the belief that same-sex relationships are not committed and lack monogamy. Critics of same-sex relationships often cite a 2003 Dutch study that deliberately selected subjects who were not monogamous, but they use this research to validate their prejudices. This Dutch study is often misused by those who oppose marriage equality and homosexuals. In fact, there is a substantial body of peer-reviewed research which indicates that many same-sex attracted people form committed relationships that are long term. A full list of those studies can be found on the Australian Marriage Equality website. I will not bore the council with a long recitation of them here.

Another argument against same-sex marriage is the 'slippery slope' argument. There are some critics of marriage equality who believe that it will lead to a range of socially unacceptable relationships being legitimised. They believe that same-sex marriage will be the start of a slippery slope that will lead to marriages that involve incest, paedophilia, polygamy and even marriages between adults and—yes, as the Hon. Tammy Franks referred—animals and objects.

To compare same-sex relationships to these other types of abusive and illegal relationships is utterly offensive. Australian law dictates that marriage take place between two consenting adults: animals and objects are not able to, and will never be able to, give consent to marriage. A sensible person, on a moment's reflection, will reject these silly and hysterical arguments.

There is another argument that I will address today, and that is marriage should be abolished entirely. Not all of those who oppose marriage equality do so because they oppose homosexuality or oppose change or think of marriage as a sacred institution. Some believe that marriage is an antiquated institution that imposes gender stereotypes and often disadvantages women. Who would want to sign up for that? Why not get rid of it altogether?

To these people I say that marriage equality is about enhancing choice, not limiting it. Many heterosexual couples legitimately choose not to get married, and many same-sex couples will also choose not to marry, even if this were a legal option available to them in this country. But marriage remains an important and valued recognition of a relationship between two people and it serves an important social and personal purpose. In a modern democratic Australia, the choice to marry should be available to every adult Australian, regardless of their partner's gender.

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. Section 116 of the Australian Constitution proclaims:

The commonwealth shall not make law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the commonwealth.

Australia enjoys freedom of religion and freedom from religion. Therefore, arguments based on religion have no place in this debate about minority human rights. Former Labor government minister, Alannah MacTiernan, wrote in the West Australian:

There are religious traditions that oppose divorce, abortion and the use of contraceptive devices. We haven't let them determine the law of our civil society. We have taken a pragmatic, secular approach that recognises the choices most of the community want available to them.

It is also important to note that there are many people from traditionally conservative faiths—Jews, Muslims and Christians alike—who support marriage equality. I have great respect for local Christian leaders such as United Church reverends Leanne Jenski and Susan Wickham, who continue to speak out in support of same-sex marriage. Leanne and Susan reflect a growing number of people of faith who are committed to human rights for all Australians.

I would also like to take this opportunity to share with members some reflections on this issue by Mr Saqib Ali, the first Muslim delegate for the Maryland House of Delegates in the United States. A committed Democrat and a committed Muslim, Mr Ali was schooled in Saudi Arabia, where homosexuality is prohibited and punishable under Islamic law, yet Mr Ali has come out and publicly declared his support for same-sex marriage. Mr Ali told a Maryland newspaper that his support for gay marriage is not a reflection of his faith or Islamic tradition; rather, it is a decision he made as a politician representing all of his constituents—constituents with and without faith backgrounds. Mr Ali explained:

If I tried to enforce religion by law—as in a theocracy—I would be doing a disservice to both my constituents and to my religion.

Mr Ali believes:

...gay marriage doesn't affect my marriage; it doesn't affect anybody else's marriage, he said. It doesn't harm us in any way.

Although he knows his stance is controversial, Mr Ali hopes religious critics will come to share his point of view to promote marriage equality.

It is important for members to note that, under this legislation being discussed today, faith communities will not be forced to conduct a same-sex marriage if the congregation is strongly opposed. This is a debate only about civil marriage in a country where church and state are separate. I draw members' attention to page 5 of the bill, division 3.9(a), which provides, 'Ministers of religion not bound to solemnise same-sex marriage...' Nothing in this paragraph (a) imposes an obligation on an authorised celebrant, being a minister of religion, to solemnise any same-sex marriage. I am not aware of any church overseas that has been forced to marry same-sex couples. In Australia, marriage celebrants are not forced to marry anyone against their will.

I feel it is important to also recognise that there are many Australians of faith who support marriage equality because they recognise the importance of separation of church and state and are committed to human rights for all citizens. I adhere most vehemently to a belief that each of us has our own moral compass that guides our life and by which we make our decisions in life. I am not trying to persuade members to change their personal beliefs with regard to same-sex marriage and I am not trying to persuade that they should go out and have one. However, I ask all members to question whether they really have the right to impose their morality on someone else, particularly if that view is not held by the majority of citizens.

Those very same reasons for opposing same-sex marriage that I have highlighted here today could be seen by some as arguments for the continued discrimination of homosexuals. Sadly, I believe that homophobia lies at the heart of this debate. In a recent opinion piece published on ABC Online, Jeff Sparrow highlighted the prejudice that exists in this debate. He writes:

Marriage has always been about symbolism more than procreation, about the kind of unions that society declares appropriate and valid. The first gay wedding would provide semiotic proof about the successful marginalisation of homophobia; correspondingly, the stubborn refusal of the major parties to accept a simple and uncomplicated reform illustrates how stubbornly prejudice still persists.

Former governor-general of Australia, Dr Bill Hayden—and I will also quote him—has addressed the issue, and offered the following response:

Where the issue of homosexuality has been concerned, so much outstanding human talent, even genius has been wantonly sacrificed over so much time on the grotty altar of personal prejudice and community ignorance and petulance.

We have now had more than a couple of decades' experience of living with legally sanctioned homosexual practices—

such as reading and writing; they are the practices that I engage in every day. The article continues:

The sky has not splintered apart, and our community has not degenerated into a Sodom and Gomorrah, as had been gloomily predicted earlier by fervid opponents of homosexual rights. In fact, we have generally found gays to be good neighbours and friends, helpful and respected workmates, people whose presence is most frequently welcome as desirable fellow citizens.

Now is the time to ensure all Australian citizens have equal rights under the law. As Judge Walker ruled in the Californian High Court challenge on Proposition 8:

A private moral view that same-sex couples are inferior to opposite-sex couples is not a proper basis for legislation.

I turn briefly now, before concluding, to the debate ongoing within my own great party. It is important to acknowledge that same-sex marriage is an issue that creates fervent debate on both sides of the argument. Even within my own party, there are significant differences of opinion. Reflecting the debate taking place in the broader community is also the ongoing debate within the ALP on whether we, as a party, should formally endorse same-sex marriage. And, just as is in the broader community, there are passionate views on both sides.

The past 12 months have seen numerous senior members of the Labor Party publically declare their support for marriage equality, including Queensland Premier and ALP National President, Anna Bligh, then Tasmanian premier David Bartlett, former Keating minister Graham Richardson, Senator Mark Arbib, Senator Doug Cameron and the Australian Workers Unions' Paul Howes and Bill Ludwig, just to name a few of them. Anna Bligh said of marriage equality:

If people love each other and they build lives together and they want that recognised, I think that's perfectly reasonable.

Current ALP national secretary, Karl Bitar, has stated that it would be wrong to shut down debate on the subject and called for a conscience vote on the issue. While the current Labor Party platform does not support same-sex marriage at the moment, like Graham Richardson, I am certain that marriage equality is inevitable. With motions of support passed in the South Australian, Tasmanian, Victorian and national territory state Labor conferences, I am hopeful that the national Labor Party platform will soon reflect this position.

I was particularly pleased that Senator Penny Wong recently led the debate on this issue at the South Australian Labor convention. Penny has been unfairly criticised by some people for not speaking out in favour of marriage equality in public. As a senior member of cabinet, Penny does not have the luxury of speaking on issues outside her portfolio, as those critics should know.

I was delighted when Penny took the opportunity to speak on this issue recently at the State convention, the appropriate venue for her to enter this debate, an internal party forum, declaring what most of us already knew, that she fully supports marriage equality. I would like to share with the chamber a small part of Penny's speech:

I came to this country in the 1970s and, like many, I know what it is like to be the subject of prejudice. My personal politics have been cast by the experience of discrimination and a deep belief in the principle of fairness. I will be advocating for our party to support equality in relation to marriage for same-sex couples. I do so because I have a deeply held commitment to equality as many in this room do too. It is a principle in which our party believes, and a principle on which our party has delivered.

I have worked with the trade union movement and I have had the privilege of representing working people and I chose to give expression to these beliefs by joining the Australian Labor Party. In the ALP, I saw the capacity to turn principle into action. I was not interested in simply criticising. I was not interested in simply talking about change. I wanted to be part of delivering it. Our party has a proud history of delivering change. It has a proud history of giving effect to the principle of equality.

Labor governments were responsible for abolishing the White Australia Policy, introducing the first land rights legislation, the introduction of the Racial Discrimination Act, enacting the Sex Discrimination Act, recognising native title through the Mabo legislation, repealing the ban on gays and lesbians serving in the armed forces and the Disability Discrimination Act. It took a Labor government to recognise same-sex relationships and remove discrimination in more than 80 commonwealth laws.

She said:

It took a Labor government to eliminate the discrimination against gays and lesbians and their children in areas such as social security, workers compensation, superannuation, child support and Medicare. Same-sex couples and their children are recognised as a family for the purposes of the Medicare safety net.

She went on:

There has been some commentary which has confused my position of not commenting publicly on this issue with my position on the actual issue itself. I have the privilege and honour of not only being a member of our party, but an elected member of the federal parliament and of the federal Labor cabinet. I have had the opportunity to advocate for equality at the highest level of our party and within our party's processes as I do today. And I will do so again at the next national conference.

Talking about change is not the same as delivering it, and delivering change is not the same thing as seeking headlines. There are some, including in the Greens political party, who would have Australians believe that the only test of one's commitment to equality is how loudly you criticise and how much you shout. Commitment to equality is also present when you deliver change as part of a party of government. Commitment to equality is also present when you advocate inside your party for change, and commitment to equality is also there when you seek to persuade and not only to condemn. And the commitment to equality does not recede because so many of us respect the principles of solidarity, the same principles which have helped Labor governments deliver so much change over so many years.

'Much has been done but much more is needed', Penny Wong finished.

Federal minister Wong's remarks echo my own views. Labor governments have been champions of equality in legislation. We have achieved so much, but we do ourselves no good at all if we say to the community that there is one step towards equality that we will not take. The ALP will address this issue again soon. That internal ALP debate is set to be discussed at the national conference in December later this year.

The current ALP policy in this matter is a nonsense. It is the typical sort of policy that results from compromise when there are two conflicting points of view that no-one wants to push to a confrontation. It is slightly less offensive than the previous policy, which mandated the position that marriage can only exist between a man and a woman, a belief not shared by at least half the Labor Party. However, in the way of these things, the policy goes on to commit the party to upholding the current Howard government's Marriage Act.

This policy is a house of cards that cannot stand long. I did not support the old policy and I do not support the current one either. Thankfully I am not a cabinet minister; I do not have to refrain, because of cabinet solidarity, from commenting outside my portfolio and I am not required to declare support for policies that I think are odious. Certainly, as a Labor MP I accept that the principles of caucus solidarity has kept me, in this instance, from moving this bill. I accept the wisdom of my colleagues in this instance. Caucus can, if this bill comes to a vote before the December national conference, require me to vote on it in a certain way, but there is nothing to prevent me from speaking my mind on this matter, for the current ALP policy on marriage is morally bankrupt.

I do not have to look too hard into the history of the great Australian Labor Party to find a directly comparable policy debate. Indeed, minister Wong referred to it in her speech to the state convention: the White Australia policy. The White Australia policy is a shameful blot on the ALP's soul. For the first half of the ALP's history, it was an article of faith for the party to restrict migration and citizenship to people declared 'white skinned'. It was an exclusivist policy, holding that only a certain class of people may have the rights of migration and citizenship. It explicitly excluded others.

While the old men of the Labor Party held onto this core policy the world and society changed around them. A new breed of ALP members, led by people who would themselves become Labor luminaries such as Don Dunstan and Gough Whitlam, began to demand change. Eventually, at an ALP national conference in 1965, they achieved the goal of overturning that discriminatory policy that was based on bigotry.

History has judged those progressive activists as right, just as I am confident that history will judge those advocating today for marriage equality to be right. This bill is just the start of that debate. I invite honourable members to join in and, when they do so, consider which side of history they wish to be on. I invite them to join me and the Hon. Tammy Franks on the side of the angels.

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

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