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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-10-17 Daily Xml
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MARRIAGE EQUALITY BILL

Second Reading

Adjourned debate on second reading.

(Continued from 16 May 2012.)

The Hon. D.G.E. HOOD (18:06): I will be brief because I am aware that we aim to finish by 6.30, and, indeed, we may finish well before that.

Honourable members: Hear, hear!

The Hon. D.G.E. HOOD: Hear, hear! Before discussing the merits or otherwise of this bill, which I understand is the subject of deeply-held passions on both sides of the debate in some cases, I will deal with some considerations that, in my opinion, are quite decisive to the fate of this bill. I have come to the very clear and firm view that there are legal hurdles that this bill simply cannot overcome. In simple language the bill is unconstitutional, in my view, and for that reason will be declared invalid.

The inescapable fact is that the marriage power given in section 51 of the commonwealth constitution has been taken up and used by the commonwealth parliament and, as such, the states do not have the power to redefine the word 'marriage' to include same-sex marriage. This parliament simply does not have the power to make laws with respect to marriage. If this bill is passed there will undoubtedly be a legal challenge on constitutional grounds. It is clear that the bill will be declared invalid. This will not just be a gross waste of taxpayers' funds but there will be confusion and uncertainty in the meantime pending a ruling by the High Court.

As members would be aware, there are recent bills presently before the commonwealth parliament that have a similar effect to this bill. The question immediately arises: why is this bill being introduced into state parliament when the constitutional power over marriage lies with the commonwealth parliament?

Section 51 of the Commonwealth Constitution provides that the commonwealth parliament has the power with respect to marriage. The word 'marriage' is specifically used. The commonwealth constitution took effect in 1901, as members would know, and there can be no doubt what the word 'marriage' meant at that time. In my view, the meaning of the word as evidenced by common usage has not changed, certainly not in the Australian context.

The present debate is whether the meaning of the word 'marriage' should change, not whether it has changed. The effect of sections 51 and 109 of the commonwealth constitution is that the power to make laws concerning marriage is a power held by both the state parliaments and the commonwealth parliament, but—and this is the crucial point—the commonwealth law prevails over any state laws on the subject.

In legal terminology if a commonwealth law covers the field any state law on the subject is simply invalid. The commonwealth parliament has enacted the Marriage Act of 1961, which now includes in section 5 the definition that marriage means the union of a man and a woman to the exclusion of all others voluntarily entered into for life.

That enactment is clearly within the power of the commonwealth. As members would be well aware, this definition was enacted in 2004 when John Howard was prime minister for the very purpose of ensuring that there could be no argument about the use of the word 'marriage'. It is absolutely clear that the commonwealth parliament enacted that provision specifically for the purpose of preventing the term 'marriage' from being used to describe same-sex relationships.

The bill now before us seeks to do precisely that by introducing the concept of same-sex marriage. The question is whether such a bill is inconsistent with the will of the commonwealth parliament as expressed in the Marriage Act. Clearly it is. I cannot think of any bill that could be more inconsistent with the commonwealth Marriage Act and, therefore, the commonwealth act must prevail and this bill is therefore invalid. I do not accept the argument made that the addition of the definition of marriage in the commonwealth Marriage Act has the effect of restricting the operation of commonwealth power in the area of marriage to heterosexual marriage only, thereby opening a gap, if you like, for the states to exercise their powers in respect of other types of marriage.

As far as the commonwealth parliament is concerned, there can be no other types of marriage under law. That intention is made clear from the second reading speech given on 24 June 2004. In fact, the commonwealth parliament has gone to the trouble of making its intentions absolutely clear. In the part of the Marriage Act that deals with the recognition of foreign marriages, section 88EA provides:

A union solemnised in a foreign country between—

(a) a man and another man; or

(b) a woman and another women

must not be recognised as marriage in Australia.

It would be impossible for anyone to argue that the commonwealth parliament intended to refuse recognition of foreign same sex unions as marriage in Australia, yet intended at the same time to permit the state parliaments to retain the power to legislate for same-sex marriages in their respective states.

There can be no doubt whatsoever that there will be a constitutional challenge to this bill if it becomes law, and it is clear that the challenge would succeed. Presumably, if the state government argued for the validity of the bill, as presumably it would be required to do, should the bill pass both houses of this parliament, it would fail in that defence and presumably be required to pay the legal costs of all parties.

Not surprisingly, some very senior lawyers have carefully considered the legal issues and provided opinions on this question. I am able to indicate that a number of these have given their consent for their written opinions to be provided for the assistance of members of this parliament if individual members are interested in looking at them. Others have already been published and are widely available. Those who have supported the legal conclusion that I have just given—and those written opinions are available upon request or indeed are widely circulated on the internet—include:

Dr Augusto Zimmermann, a lecturer in constitutional law and Associate Dean in Research at the Murdoch Law School in Western Australia;

Professor Geoffrey Lindell, Adjunct Professor at the Law School at the University of Adelaide;

Mr Michael Stokes, senior lecturer, Faculty of Law at the University of Tasmania;

Mr Neville Rochow, senior counsel of the South Australian, Victorian, New South Wales and Queensland bar; and

Mr Chris Brohier, barrister of the South Australian bar.

To quote from just one of these opinions, Dr Zimmermann's conclusion states:

As it attempts to provide for the regulation of same-sex marriage in South Australia, the 'Marriage Equality Bill' constitutes a clear violation of the statutory definition of marriage determined by sections 5 and 46(1) of the Marriage Act 1961 (Commonwealth). As such, this bill put before the South Australian Parliament amounts to nothing less than an explicit determination to (unconstitutionally) interfere with a federal legislation that already regulates on the definition and conditions of marriage.

Those are his words, not mine. Whatever the reason for the introduction of this bill, I suggest to members of this house that it is wrong to pass a law that is clearly invalid, no matter what may be the views of individual members on the merits of the bill. We do not enact bills in this place that deal with other commonwealth powers, such as defence, for example, and other issues which are specifically the realm of the commonwealth.

The consequences are much greater, however, than just the expense of an unsuccessful legal challenge in the High Court of Australia, should this bill pass. If it is passed there will be a period before a legal case is mounted in the High Court and before the High Court gives its ruling, and during that period both the government and its citizens obviously will act upon the law; that is, many same sex couples will go through the ceremony prescribed by the law, should it pass this parliament, and they would all consider themselves married under that law, that is, until the High Court pronounces on the question of validity there will certainly be a state of uncertainty.

A finding in due course that the law is invalid will mean that all ceremonies conducted under the law will also be invalid. Couples will realise they have been deceived. This is a very poor way to treat those in the community who rely on the laws we pass. I am not suggesting that that is the mover's intention, but I do believe it will be the effect of this bill if passed.

There are also other adverse consequences of this bill, quite apart from the fact that it is unconstitutional. We would have the quite strange situation where same sex marriage would be recognised in some states, namely, South Australia, should it pass this parliament, but not in others. What is the position of a same-sex couple who have gone through the ceremony of marriage under this law but who travel or move permanently to another state of Australia that does not recognise the relationship as marriage?

Is the couple married in some states but not in others? If they are required to complete such things as Centrelink forms with an obligation of truthfulness, are they married or not, and how do they correctly answer these questions? Clearly, there will be uncertainty, certainly before the High Court makes its ruling, and I think clearly afterwards, as well. This will be a most unsatisfactory situation.

We should also consider the cost of setting up and maintaining the administration necessary for this law. A register of ministers of religion must be kept and maintained under clauses 34 to 44. This is a duplication of the commonwealth register, but this duplication at state level is necessary for this law. Similarly, a register of civil celebrants must be set up and maintained under clauses 47 to 50, and a register of same-sex marriages must also be maintained.

Under clauses 19 to 33 of this bill, the Supreme Court of South Australia is given a matrimonial causes jurisdiction over dissolution and annulment of same-sex marriages in the same way that the Family Court of the commonwealth government has jurisdiction over marriages at present. The establishment and maintenance of this bureaucracy will come at some cost.

Upon a finding that the law is invalid, all of this will have to be dismantled and undone. As I say, that is a virtual certainly, according to the very high level legal advice that has been well circulated. Surely we should not enact legislation regardless of the merits, knowing that people will rely on it but that it will almost certainly be declared invalid. The impact will be significant for those affected.

Thus far, the considerations that I have spoken about are fairly clear and decisive. They are enough to show, in my view, that this chamber should not pass this bill, whatever the views individual members may have on the merits or otherwise of recognising same-sex marriage. I will now move on to the arguments concerning the concept of same-sex marriage, and the extent of community support and opposition to the concepts proposed in this bill.

As to the proportion of people who favour or are against same-sex relationships being called 'marriage', my view is that there is a relatively silent majority of the population who would not support this bill, which is reflected in the defeat of a similar bill in the commonwealth parliament just a few weeks ago by a margin of around two to one. Further, I note a poll concerning IVF for lesbian couples, which I referred to in my speech in the debate on that recent bill which passed this place. In that speech, I mentioned that there was a survey in which 73 per cent were against allowing that law to pass.

Furthermore, this bill provides no general exemption for people with traditional views or for churches, for example, although there is one exemption in clause 9 which provides that a minister of religion is not bound to perform a same-sex marriage ceremony. How long will it be before a same-sex couple seeks to have a marriage ceremony performed in a place of worship against the will of its operators? This will cause considerable conflict and division. On the face of it, such a refusal will appear to be sex discrimination, and therefore unlawful under current law. There can be no doubt that the limits will be tested, and difficulties will be encountered on all sides.

The Family First Party maintains that the family is the building block of society and that marriage is an institution that has served society well. Wherever possible, children should have a relationship with their natural mother and father. That is not always possible for a variety of reasons, of course, and there are many single parents out there who do an excellent job, often in most difficult circumstances. In my view, the greatest consideration should be given to the welfare of children, particularly in the areas of relationships, role modelling and general emotional development.

Whilst there is much debate about the effect upon children of being brought up in a same-sex household, I note the research of Mark Rengerus from the University of Texas, completed in July this year (2012). His study was quite unique in that it used random sampling methods and very large sample sizes, which is not the case with many other studies on the subject. The results showed that children do best when raised by a married mother and father, as distinct from being raised by adults in other relationships, including the specific group in his study: same-sex relationships. Those were his independent findings. This supports the view that children should have both a mother and a father where possible, and I support this view.

If passed, this bill will lead to much division and disagreement in this state, for both the legal reasons and also the practical reasons that I have outlined and, indeed, across the nation, as I have also outlined, until the issue is eventually resolved by the High Court, where it will almost certainly be struck down as unconstitutional. As I have said, this is a virtual certainty. For the reasons outlined above, Family First does oppose this bill.

Debate adjourned on motion of Hon. Carmel Zollo.

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